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Republic of the Philippines

SUPREME COURT
Manila
EN BANC

A.M. No. 93-2-037 SC April 6, 1995

IN RE Emil (Emiliano) P. JURADO Ex Rel.: Philippine Long Distance
Telephone Company (PLDT), per its First Vice-President, Mr. Vicente R.
Samson, appellant,
NARVASA, C.J.:
Liability for published statements demonstrably false or misleading, and
derogatory of the courts and individual judges, is what is involved in the
proceeding at bar than which, upon its facts, there is perhaps no more
appropriate setting for an inquiry into the limits of press freedom as it relates
to public comment about the courts and their workings within a constitutional
order.
1. Basic Postulates
To resolve the issue raised by those facts, application of fairly elementary
and self-evident postulates is all that is needed, these being:
1) that the utterance or publication by a person of falsehood or half-truths, or
of slanted or distorted versions of facts or accusations which he made no
bona fide effort previously to verify, and which he does not or disdains to
prove cannot be justified as a legitimate exercise of the freedom of
speech and of the press guaranteed by the Constitution, and cannot be
deemed an activity shielded from sanction by that constitutional guaranty;

2) that such utterance or publication is also violative of "The Philippine

Journalist's Code of Ethics" which inter alia commands the journalist to
"scrupulously report and interpret the news, taking care not to suppress
essential facts nor to distort the truth by improper omission or emphasis,"
and makes it his duty "to air the other side and to correct substantive errors
promptly;" 1
3) that such an utterance or publication, when it is offensive to the dignity
and reputation of a Court or of the judge presiding over it or degrades or
tends to place the courts in disrepute and disgrace or otherwise to debase
the administration of justice, constitutes contempt of court and is punishable
as such after due proceedings; and
4) that prescinding from the obvious proposition that any aggrieved party
may file a complaint to declare the utterer or writer in contempt, the initiation
of appropriate contempt proceedings against the latter by the court is not
only its prerogative but indeed its duty, imposed by the overmastering need
to preserve and protect its authority and the integrity, independence and
dignity of the nation's judicial system.
2. Antecedents
This proceeding treats of Emiliano P. Jurado, a journalist who writes in a
newspaper of general circulation, the "Manila Standard." He describes
himself as a columnist, who "incidentally happens to be a lawyer," remarking
that while he values his membership in the law profession, "such
membership is neither a critical nor indispensable adjunct in the exercise of
his occupation as a newspaperman." 2 His column in the "Manila Standard"
is entitled "Opinion."
Jurado had been writing about alleged improperties and irregularities in the
judiciary over several months (from about October, 1992 to March, 1993).
Other journalists had also been making reports or comments on the same
subject. At the same time, anonymous communications were being
extensively circulated, by hand and through the mail, about alleged venality

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and corruption in the courts. And all these were being repeatedly and
insistently adverted to by certain sectors of society.

try their darndest to stay away from these judges. The answer, of course, is
obvious."

In light of these abnormal developments, the Chief Justice took an

extraordinary step. He issued Administrative Order No. 11-93 dated January
25, 1993, "Creating an Ad Hoc Committee to Investigate Reports of
Corruption in the Judiciary," 3 reading as follows:

2. In his February 3, 1993 column, he adverted to another group, also named

"Magnificent Seven," which, he said, should be distinguished from the first.
He wrote: "When lawyers speak of the "Magnificent Seven" one has to make
sure which group they are referring to. Makati's "Magnificent Seven" are a
bunch of Makati regional trial court judges who fix drug-related cases. The
"Magnificent Seven" in the Supreme Court consists of a group of justices
who vote as one." 4

WHEREAS, the Court's attention has been drawn to the many and persistent
rumors and unverified reports respecting corruption in the judiciary, said
rumors and reports not only having been mentioned by media and in
anonymous communications, but having also been adverted to by certain
government officials and civic leaders.
NOW, THEREFORE, by authority of the Court, an Ad Hoc committee is
hereby constituted composed of Chief Justice Andres R. Narvasa, as
Chairman, and former Justices of the Court, Hon. Lorenzo Relova and Hon.
Ameurfina A. Melencio-Herrera, as Members, which shall seek to ascertain
the truth respecting said reports and statements, and to this end, forthwith
interview at closed-door sessions or otherwise, such persons as may appear
to it to have some knowledge of the matter and who may be appealed to to
share that knowledge with the Court, and otherwise gather such evidence as
may be available. The Committee is hereby authorized to use such facilities
and personnel of the court as may be necessary or convenient in the
fulfillment of its assigned mission, and shall submit its report to the Court
within thirty (30) days.
Material to the present inquiry are Jurado's published statements from late
1992 to the middle of February, 1993.
1. In his column of October 21, 1992, he wrote of "(j)udges in a number of
regional trial courts in Metro Manila (who) have become so notorious in their
dealings with litigants and lawyers that they are now called the "Magnificent
Seven."" He stated that "(i)t has come to a point where lawyers and litigants

3. Aside from the "Magnificent Seven," he also wrote about a group which he
dubbed the "Dirty Dozen." In his column of October 21, 1992 he said that
there are " . . . 12 judges who have acquired such reputation for graft and
corruption that they are collectively known as the "dirty dozen". These
judges, I am told, are not satisfied with accepting bribes; they actually sell
their decisions to the litigants and "solicit" their bids for what is clearly an
auction for the judge's decision."
According to him, the most corrupt judges now are Makati's "Dirty Dozen"
judges, supplanting some of those from Pasay, Pasig and Quezon City;
corruption in lower Courts had been admitted by an Executive Judge in a
Metro Manila Regional Trial Court (column of November 9, 1992); and
because the "Dirty Dozen" had given Makati the reputation of having the
most corrupt RTC in the country, multi-nationals and financing institutions
explicitly stipulate in their agreements that litigation in connection with these
contracts may be held anywhere in Metro Manila except in Makati; and
lawyers confirm that Makati Judges, including some persons in the sheriffs
office, are the most corrupt, where before, Pasay and Quezon City had that
dubious distinction (column of December 1, 1992).
4. In his November 9, 1992 column, he wrote about "a former appellate
justice (who) "holds office" at a restaurant near the Court of Appeals building.
He is known as the contact man of five CA divisions. Lawyers say that this
former jurist really delivers." In his column of January 29, 1993, he adverted

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to the same unnamed former Justice as being "known for fixing cases for five
CA divisions (that is what he tells lawyers and litigants) for a fee. And if the
price is right, the lawyer of the litigant paying can even write his own decision
using a CA justice as ponente. This ex-justice holds court at the mezzanine
of a restaurant owned by the wife of a former Marcos cabinet member and
which has become a meeting place for judges, CA justices, practicing
lawyers, prosecutors and even Supreme Court justices. The former CA
justice also has his own Chinese contact. After I exposed this last year, the
habitues became scarce. But they are back again, and the ex-justice is stilldoing brisk business."
5. In his column of March 24, 1993, he made the claim that one can "get a
temporary restraining order from a regional trial court in Metro-Manila by
paying the judge anywhere between P30,000.00 and P50,000.00."
Other columns of Jurado refer to:
a) a police from the South Capital Command . . . (to the effect) that 8 Makati
judges where paid for decisions favoring drug-traffickers and other big-time
criminals, naming the judges and giving detailed accounts of the bribery
(January 30, 1993);
b) a bank, later identified by him as the Equitable Banking Corporation
(Ermita Branch), which had "hosted a lunch at its penthouse mainly for some
justices, judges, prosecutors and law practitioners" (January 12, 1993); 5
c) the lady secretary of an RTC Judge in Makati who allegedly makes sure,
for a fee of P10,000.00 or more, depending on how much money is at stake,
that a case is raffled off to a Judge who will be "extremely sympathetic," and
can arrange to have the Court issue attachments or injunctions for a service
fee of 1% over and above the regular premium of the attachment or
injunction bond; a Chinese-Filipino businessman who paid this "miracle
worker" P300,000.00 on top of the regular premium on the
attachment/injunction bond (October 27, 1992);

d) Executive Judge de la Rosa, who "has unilaterally decided to discard the

rule that cases seeking provisional remedies should be raffled off to the
judges," thus violating the rule that no case may be assigned in multi-sala
courts without a raffle (January 28, 1993);
e) the Secretary of the Judicial and Bar Council (JBC), who had supposedly
gotten that body to nominate him to the Court of Appeals; and a son and a
nephew of JBC members, who were also nominated to the Court of Appeals,
contrary to ethics and delicadeza (January l6, 1993; and January 29, 1993);
f) what he denominates "a major determinant of promotion," i.e., having a
relative in the JBC or the Supreme Court, or having a powerful politician as
sponsor, citing specifically, the following nominees to the Court of Appeals
Conrado Vasquez, Jr., son and namesake of the Ombudsman and brother of
the head of the Presidential Management Staff; Rosalio de la Rosa, "nephew
of Justice Relova and cousin of Chief Justice Narvasa;" and the fact that
nomination of some worthy individuals was blocked because they "incurred
the ire of the powers that be," e.g., Judge Maximiano Asuncion, Quezon City
RTC, and Raul Victorino, closely identified with former Senate President
Salonga (January 25, 1993).
3. Events Directly Giving Rise
to the Proceeding at Bar
What may be called the seed of the proceeding at bar was sown by the
decision promulgated by this Court on August 27, 1992, in the so-called
"controversial case" of "Philippine Long Distance Telephone Company v.
Eastern Telephone Philippines, Inc. (ETPI)," G.R. No, 94374. In that decision
the Court was sharply divided; the vote was 9 to 4, in favor of the petitioner
PLDT. Mr. Justice Hugo E. Gutierrez, Jr., wrote the opinion for the
majority. 6 A motion for reconsideration of the decision was filed in
respondent's behalf on September 16, 1992, which has recently been
resolved.

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In connection with this case, G.R. No. 94374, the "Philippine Daily Inquirer"
and one or two other newspapers published, on January 28, 1993, a report
of the purported affidavit of a Mr. David Miles Yerkes, an alleged expert in
linguistics. This gentleman, it appears, had been commissioned by one of
the parties in the case, Eastern Telephone Philippines, Inc. (ETPI), to
examine and analyze the decision of Justice Gutierrez in relation to a few of
his prior ponencias and the writings of one of the lawyers of PLDT, Mr. Eliseo
Alampay, to ascertain if the decision had been written, in whole or in part, by
the latter. Yerkes proffered the conclusion that the Gutierrez decision "looks,
reads and sounds like the writing of the PLDT's counsel," 7
As might be expected, the Yerkes "revelations" spawned more public
discussion and comment about the judiciary and the Supreme Court itself,
much of it unfavorable. There were calls for impeachment of the justices, for
resignation of judges. There were insistent and more widespread reiterations
of denunciations of incompetence and corruption in the judiciary. Another
derogatory epithet for judges was coined and quickly gained currency:
"Hoodlums in Robes."
It was at about this time and under these circumstances particularly the
furor caused by the Yerkes opinion that the PLDT decision was authored by
a PLDT lawyer that Jurado wrote in his column on February 8, 1993, an
item entitled, "Who will judge the Justices?" referring among other things
to" . . .
(a) report that six justices, their spouses, children and grandchildren (a total
of 36 persons) spent a vacation in Hong Kong some time last year and
that luxurious hotel accommodations and all their other expenses were paid
by a pubic utility firm . . . and that the trip . . . was arranged by the travel
agency patronized by this public utility firm." 8
This was the event that directly gave rise to the proceeding at bar.
a. Letter and Affidavit of PLDT

For shortly afterwards, on February 10, 1993, Mr. Vicente R. Samson, First
Vice President of the PLDT (Philippine Long Distance Telephone Company),
addressed a letter to the Chief Justice, submitting his sworn statement in
confutation of "the item in the column of Mr. Emil P. Jurado of the Manila
Standard on a vacation trip supposedly taken by six Justices with their
families last year," and requesting that the Court "take such action as may be
appropriate." In his affidavit, Samson made the following averments: 9
xxx xxx xxx
While the name of the public utility which supposedly financed the alleged
vacation of the Justices in Hongkong has not been disclosed in the Jurado
column, the publication thereof, taken in relation to the spate of recent
newspaper reports alleging that the decision of the Supreme Court, penned
by Mr. Justice Hugo E. Gutierrez, Jr., in the pending case involving the PLDT
and Eastern Telecommunications Phils., Inc. was supposedly ghost written
by a lawyer of PLDT, gives rise to the innuendo or unfair inference that Emil
Jurado is alluding to PLDT in the said column; and, this in fact was the
impression or perception of those who talked to me and the other officers of
the PLDT after having read the Jurado column;
4. In as much as the PLDT case against Eastern Telecommunications
Philippines is still sub-judice, since the motions for reconsideration filed by
the losing litigants therein, Eastern Telecommunications Philippines, Inc. and
NTC are still pending before the Court, we have tried to refrain from making
any public comments on these matters, lest any statement we make be
interpreted to be an attempt on our part to unduly influence the final decision
of the Supreme Court in the above described case. However in the interest
of truth and justice, PLDT is compelled to emphatically and categorically
declare that it is not the public utility firm referred to in the Jurado column
and that specifically, it has never paid for any such trip, hotel or other
accommodations for any justice of the Supreme Court or his family during
their vacation, if any, in Hongkong last year. It is not even aware that any of
the justices or their families have made the trip referred to in the Jurado
column;

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5. I further state that neither Atty. Emil P. Jurado nor anyone in his behalf has
ever spoken to me or any other responsible officer of PLDT about the matter
quoted in par. 2 hereof;
6. PLDT further emphatically and categorically denies that it had ever talked
to or made arrangements with any travel agency or any person or entity in
connection with any such alleged trip of the Justices and their families to
Hongkong, much less paid anything therefor to such agencies, fully or in
part, in the year 1992 as referred to in Par. 2 hereinabove;
7. The travel agencies which PLDT patronizes or retains for the trips, hotels
or other accommodations of its officers and employees are:
a. Philway Travel Corporation
M-7 Prince Tower Cond.
Tordesillas St., Salcedo Village
Makati, Metro Manila
b. Citi-World Travel Mart Corp.
Suite 3-4 Ramada Midtown Arcade
M. Adriatico Street
Ermita, Manila.

obtained;" that the "expenses for said party were exclusively from my
personal funds and the food was prepared in my house by my wife and
served by my house help . . . and four (4) waiters . . . hired from the nearby
Barrio Fiesta Restaurant;" that among the invited guests "were members of
the Supreme Court and Court of Appeals who . . . were my friends of forty
years since our days in law school;" and that the party was held in the
lounge of the bank instead of in "my residence" "unlike in former years . . .
because my birthday happened to fall on a working day and my friends from
the Equitable Banking
Corporation . . . suggested that I hold it there (at the lounge) for their
convenience because my residence is far from down town."
However, this birthday luncheon of Atty. Veto was reported in Jurado's
column (in the Manila Standard issues of January 12 and 28, 1993) as
having been "hosted (by the Equitable Bank) at its penthouse mainly for
some justices, judges, prosecutors and law practitioners. . . ." And upon this
premise, Jurado indulged in the following pontification: "When those in the
judiciary fraternize this way, what chances before the courts do other
lawyers, who are not "batang club," have against others who belong to the
fraternity? In the case of prosecutors and fiscals, what chances do opposing
counsels have against those in the fraternity?" (column of January 12, 1993)
c. Information from Ad Hoc Committee

The records of these travel agencies will bear out the fact that no
arrangements were made by them at the instance of PLDT for the trip
referred to in the Jurado column.

At about this time, too, the Court received information from the Ad Hoc
Committee (created by Administrative Order No. 11-93) to the following
effect:

b. Affidavit of Atty. William Veto

The Samson affidavit was followed by another submitted to the Court by Atty.
William Veto, the "in-house counsel of Equitable Banking Corporation since
1958," subscribed and sworn to on February 10, 1993, in relation to another
article of Jurado. 10 Veto deposed that on Tuesday, January 5, 1993 he had
"hosted a lunch party at the Officers' Lounge, 7th Floor of the Equitable
Banking Corporation Building, Ermita Branch . . . upon prior permission . . .

1) that by letter dated February 1, 1993, the Chairman of the Ad Hoc

Committee extended an invitation to Atty. Emiliano Jurado to appear before it
"at 2 o'clock in the afternoon of February 4, 1993 . . . (to) give the committee
information that will assist it in its task," i.e., to definitely and accurately
determine the facts as regards the published rumors and reports of
corruption in the judiciary;

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2) that despite receipt of this letter by a responsible individual at the business
address of Jurado, the latter failed to appear at the time and place indicated;
that instead, in his column in the issue of Manila Standard of February 4,
1993, Jurado stated that he was told he was being summoned by the Ad Hoc
Committee, but "(t)here is really no need to summon me. The committee can
go by the many things I have written in my column about corruption in the
judiciary. Many of these column items have been borne out by subsequent
events."
3) that another letter was sent by the Chairman to Jurado, dated February 5,
1993, reiterating the Committee's invitation, viz.:
It is regretted that you failed to respond to the invitation of the Ad Hoc
Committee to appear at its session of February 4, 1992. All indications are
that you are the person with the most knowledge about corruption in the
judiciary and hence, appear to be best positioned to assist the Ad Hoc
Committee in its function of obtaining evidence, or leads, on the matter. You
have, I believe, expressed more than once the laudable desire that the
judiciary rid itself of the incompetents and the misfits in its ranks, and we
believe you will want to help the Court do precisely that, by furnishing the
Committee with competent evidence, testimonial or otherwise. Clearly, the
purging process cannot be accomplished without proof, testimonial or
otherwise, as you must no doubt realize, being yourself a lawyer.
We would like you to know that the Ad Hoc Committee created by
Administrative Order No. 11-93 is simply a fact-finding body. Its function is
evidence-gathering. Although possessed of the authority to maintain and
enforce order in its proceedings, and to compel obedience to its processes, it
is not an adjudicative body in the sense that it will pronounce persons guilty
or innocent, or impose sanctions, on the basis of such proofs as may be
presented to it. That function is reserved to the Supreme Court itself, in
which it is lodged by the Constitution and the laws. Thus, at the conclusion of
its evidence-gathering mission, the Ad Hoc Committee will submit its report
and recommendations to the Court which will then take such action as it
deems appropriate.

The Ad Hoc Committee has scheduled hearings on the 11th and 12th of
February, 1993. Mr. Justice Hilario G. Davide, Jr. will preside as Chairman at
these hearings since I will be unable to do so in view of earlier commitments.
We reiterate our invitation that you come before the Committee, and you
may opt to appear either on the 11th or 12th of February, 1993, at 2 o'clock
in the afternoon."
4) that notwithstanding receipt of this second letter by a certain Mr. Gerry Gil
of the Manila Standard, Jurado still failed to appear.
4. Statement of the Case:
Resolutions and Pleadings
a. Resolution of the February 16, 1993
After considering all these circumstances, the Court by Resolution dated
February 16, 1993, ordered:
1) that the matter dealt with in the letter and affidavit of the PLDT herein
mentioned be duly DOCKETED, and hereafter considered and acted upon
as an official Court proceeding for the determination of whether or not the
allegations made by Atty. Emil Jurado herein specified are true;
2) that the Clerk of Court SEND COPIES of the PLDT letter and affidavit, and
of the affidavit of Atty. William Veto to Atty. Emil Jurado, c/o the Manila
Standard, Railroad & 21 Streets, Port Area, Manila; and copies of the same
PLDT letter and affidavit, to Philway Travel Corporation, M-7 Prince Tower
Cond., Tordesillas St., Salcedo Village, Makati, Metro Manila; and Citi-World
Travel Mart Corp., Suite 3-4 Ramada Midtown Arcade, M. Adriatico Street,
Ermita, Manila;
3) that within five (5) days from their receipt of notice of this resolution and of
copies of the PLDT letter and affidavit, the Philway Travel Corporations and
the Citi-World Travel Mart Corporation each FILE A SWORN STATEMENT
affirming or denying the contents of the PLDT affidavit; and

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4) that within fifteen (15) days from his receipt of notice of this resolution and
of copies of said PLDT letter and affidavit and of the affidavit of Atty. Veto,
Atty. Emil Jurado FILE A COMMENT on said affidavits as well as the
allegations made by him in his columns, herein specified, in which he shall
make known to the Court the factual or evidentiary bases of said allegations.

2. Atty. William Veto's affidavit substantially corroborated what he had written

in vital details; hence, further substantiation would be surplusage. In fact, the
Supreme Court had confirmed the story in its press statement quoted by him
(Jurado) in his January 30, 1993 column. His column about the Veto party
constitutes fair comment on the public conduct of public officers.

b. Jurado's Comment dated

March 1, 1993.

3. The column about Executive Judge Rosalio de la Rosa merely

summarized the position of Judge Teresita Dy-Liaco Flores on the actuations
of Judge de la Rosa and called the attention of the Court thereto, Judge
Flores' complaint, a copy of which had been sent to the Court Administrator,
being on meriting its attention.

As directed, Jurado filed his comment, dated March 1, 1993.

He explained that he had not "snubbed" the invitation of the Ad Hoc
Committee, it being in fact his desire to cooperate in any investigation on
corruption in the judiciary as this was what "his columns have always wanted
to provoke." What had happened, according to him, was that the first
invitation of the Ad Hoc Committee was routed to his desk at the Manila
Standard office on the day of the hearing itself, when it was already
impossible to cancel previous professional and business appointments; and
the second invitation, "if it was ever received" by his office, was never routed
to him; and he had yet to see
it." 11 If the impression had been created that he had indeed "snubbed" the
Ad Hoc Committee, he "sincerely apologizes."
He averred that his columns are self-explanatory and reflect his beliefs, and
there was no need to elaborate further on what he had written. He expressed
his firm belief that justice can be administered only by a judicial system that
is itself just and incorruptible, and the hope that this Court would view his
response in this light.
He also made the following specific observations:
1. The affidavit of Antonio Samson of the PLDT dated February 9, 1993 was
an assertion of the affiant's belief and opinion and he (Jurado) would not
comment on it except to say that while Mr. Samson is entitled to his beliefs
and opinions, these "bind only him and the PLDT."

4. The "factual and evidentiary basis" of his column of January 30, 1993 was
the police report on seven (7) Makati judges authored by Chief Inspector
Laciste Jr., of the Narcotics Branch of the RPIU, South CAPCOM, PNP,
addressed to Vice-President Joseph E. Estrada, a copy of which he had
received in the news room of the Manila Standard. The existence of the
report had been affirmed by a reporter of the Manila Standard, Jun Burgos,
when he appeared at the hearing of the Ad Hoc Committee on January 11,
1993.
5. His observations in his columns of January 6 and 29, 1993 regarding the
nominations of relatives in the Judicial and Bar Council echo the public
perception, and constitute fair comment on a matter of great public interest
and concern.
6. His columns with respect to the "RTC's Magnificent Seven" (October 20,
1992); the "RTC-Makati's Dirty Dozen" (October 2, 1992, November 9, 1992,
and December 1, 1992); the "Magnificent Seven" in the Supreme Court
(February 3,1993); 12 the lady secretary of an RTC Judge (October 27,
1992); and the former Court of Appeals Justice "fixing" cases (January 29,
1993) were all based on information given to him in strict confidence by
sources he takes to be highly reliable and credible; and he could not
elaborate on the factual and evidentiary basis of the information without
endangering his sources.

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By necessity and custom and usage, he relies as a journalist not only on
first-hand knowledge but also on information from sources he has found by
experience to be trustworthy. He cannot compromise these sources. He
invokes Republic Act No. 53, as amended by R.A. No. 1477, exempting the
publisher, editor or reporter of any publication from revealing the source of
published news or information obtained in confidence, and points out that
none of the matters subject of his columns has any bearing on the security of
the state.

the PLDT." He also sought clarification on two points as to the capacity in

which he is being cited in these administrative proceedings whether "as
full time journalist or as a member of the bar," and why he is being singled
out, from all his other colleagues in media who had also written about
wrongdoings in the judiciary, and required to comment in a specific
administrative matter before the Court sitting En Banc so that he might
"qualify his comment and/or assert his right and privileges . . . .
e. Resolution of March 18, 1993

c. Resolution of March 2, 1993

Subsequent to the Resolution of February 16, 1993 and before the filing of
Jurado's comment above mentioned, the Court received the affidavits of the
executive officials of the two travel agencies mentioned in the affidavit of
PLDT Executive Vice-President Vicente R. Samson in relation to the
Jurado column of February 8, 1993: that of Mr. Ermin Garcia, Jr., President
of the Citi-World Travel Mart Corporation, dated February 22, 1993, and that
of Mrs. Marissa de la Paz, General Manager of Philway Travel Corporation,
dated February 19, 1993. Both denied ever having made any travel
arrangements for any of the Justices of the Supreme Court or their families
to Hongkong, clearly and categorically belying the Jurado article.
By Resolution dated March 2, 1993, the Court directed that Jurado be given
copies of these two (2) affidavits and that he submit comment thereon, if
desired, within ten (10) days from receipt thereof.
d. Jurado's Supplemental Comment
with Request for Clarification
In response, Jurado filed a pleading entitled "Supplemental Comment with
Request for Clarification" dated March 15, 1993. In this pleading he alleged
that the sworn statements of Mr. Ermin Garcia, Jr. and Mrs. Marissa de la
Paz are affirmations of matters of their own personal knowledge; that he
(Jurado) had no specific knowledge of "the contents of these, let alone their
veracity;" and that the affidavits "bind no one except the affiants and possibly

Through another Resolution, dated March 18, 1993, the Court directed the
Clerk of Court to inform Jurado that the Resolutions of February 16 and
March 2, 1993 had been addressed to him (according to his own depiction)
in his capacity as "a full-time journalist" "who coincidentally happens to be a
member of the bar at the same time," and granted him fifteen (15) days from
notice" to qualify his comment and/or assert his rights and privileges . . . in
an appropriate manifestation or pleading."
f. Jurado's Manifestation
dated March 31, 1993
Again in response, Jurado filed a "Manifestation" under date of March 31,
1993. He moved for the termination of the proceeding on the following
posited premises:
1. The court has no administrative supervision over him as a member of the
press or over his work as a journalist.
2. The present administrative matter is not a citation for (a) direct contempt
as there is no pending case or proceeding out of which a direct contempt
charge against him may arise, or (b) indirect contempt as no formal charge
for the same has been laid before the court in accordance with Section 3
(Rule 71) of the Rules of Court.

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3. His comments would be more relevant and helpful to the Court if taken
together with the other evidence and reports of other journalists gathered
before the Ad Hoc Committee. He perceives no reason why his comments
should be singled out and taken up in a separate administrative proceeding.
It is against this background of the material facts and occurrences that the
Court will determine Jurado's liability, if any, for the above mentioned
statements published by him, as well as "such action as may be appropriate"
in the premises, as the PLDT asks.
5. Norms for Proper Exercise of
Press Freedom
a. Constitutional Law Norms
In Zaldivar v. Gonzalez (166 SCRA 316 [1988]), the Court underscored the
importance both of the constitutional guarantee of free speech and the reality
that there are fundamental and equally important public interests which need
on occasion to be balanced against and accommodated with one and the
other. There, the Court stressed the importance of the public interest in the
maintenance of the integrity and orderly functioning of the administration of
justice. The Court said: 13
The principal defense of respondent Gonzalez is that he was merely
exercising his constitutional right of free speech. He also invokes the related
doctrines of qualified privileged communications and fair criticism in the
public interest.
Respondent Gonzalez is entitled to the constitutional guarantee of free
speech. No one seeks to deny him that right, least of all this Court. What
respondent seems unaware of is that freedom of speech and of expression,
like all constitutional freedoms, is not absolute and that freedom of
expression needs on occasion to be adjusted to and accommodated with the
requirements of equally important public interests. One of these fundamental
public interests is the maintenance of the integrity and orderly functioning of

the administration of justice. There is no antinomy between free expression

and the integrity of the system of administering justice. For the protection
and maintenance of freedom of expression itself can be secured only within
the context of a functioning and orderly system of dispensing justice, within
the context, in other words, of viable independent institutions for delivery of
justice which are accepted by the general community. As Mr. Justice
Frankfurter put it:
. . . A free press is not to be preferred to an independent judiciary, nor an
independent judiciary to a free press. Neither has primacy over the other;
both are indispensable to a free society.
The freedom of the press in itself presupposes an independent judiciary
through which that freedom may, if necessary, be vindicated. And one of the
potent means for assuring judges their independence is a free press.
(Concurring in Pennekamp v. Florida, 328 U.S. 331 at 354-356 [1946]).
Mr. Justice. Malcolm of this Court expressed the same
thought in the following terms:
The Organic Act wisely guarantees freedom of speech and press. This
constitutional right must be protected in its fullest extent. The Court has
heretofore given evidence of its tolerant regard for charges under the Libel
Law which come dangerously close to its violation. We shall continue in this
chosen path. The liberty of the citizens must be preserved in all of its
completeness. But license or abuse of liberty of the press and of the citizens
should not be confused with liberty in its true sense. As important as is the
maintenance of an unmuzzled press and the free exercise of the rights of the
citizens is the maintenance of the independence of the Judiciary. Respect for
the Judiciary cannot be had if persons are privileged to scorn a resolution of
the court adopted for good purposes, and if such persons are to be permitted
by subterranean means to diffuse inaccurate accounts of confidential
proceedings to the embarrassment of the parties and the court. (In Re
Severino Lozano and Anastacio Quevedo, 54 Phil. 801 at 807 [1930]).

10
b. Civil Law Norms
The Civil Code, in its Article 19 lays down the norm for the proper exercise of
any right, constitutional or otherwise, viz.:
Art. 19. Every person must, in the exercise of his rights and in
the performance of his duties, act with justice, give everyone
his due, and observe honesty and good faith.
The provision is reflective of the universally accepted precept of "abuse of
rights," "one of the most dominant principles which must be deemed always
implied in any system of law." 14 It parallels too "the supreme norms of justice
which the law develops" and which are expressed in three familiar Latin
maxims: honeste vivere, alterum non laedere and jus suum quique tribuere
(to live honorably, not to injure others, and to render to every man his due). 15
Freedom of expression, the right of speech and of the press is, to be sure,
among the most zealously protected rights in the Constitution. But every
person exercising it is, as the Civil Code stresses, obliged "to act with justice,
give everyone his due, and observe honesty and good faith." The
constitutional right of freedom of expression may not be availed of to
broadcast lies or half-truths this would not be "to observe honesty and
good faith;" it may not be used to insult others; destroy their name or
reputation or bring them into disrepute. this would not be "to act with
justice" or "give everyone his due."
c. Philippine Journalist's
Code of Ethics
Also relevant to the determination of the propriety of Jurado's acts subject of
the inquiry at bar are the norms laid down in "The Philippine Journalist's
Code of Ethics." The Code was published in the issue of February 11, 1993
of the Manila Standard, for which Jurado writes, as part of the paper's
"Anniversary Supplement." The first paragraph of the Code, 16 and its
corresponding annotations, read as follows:

1. I shall scrupulously report and interpret the news, taking care not to
suppress essential facts nor to distort the truth by improper omission or
emphasis. I recognize the duty to air the other side and the duty to correct
substantive errors promptly.
1. Scrupulous news gathering and beat coverage is required. Relying
exclusively on the telephone or on what fellow reporters say happened at
one's beat is irresponsible.
2. The ethical journalist does not bend the facts to suit his biases or to
please benefactors. He gathers all the facts, forms a hypothesis, verifies it
and arrives at an honest interpretation of what happened.
3. The duty to air the other side means that the journalist must contact the
person or persons against whom accusations are lodged. A court proceeding
provides for this balance by presenting the prosecution and then the
defense. A news story or editorial column that fails to present the other side
is like a court that does not hear the side of the defense.
4. Correcting substantive errors is the mark of mature newspapers like the
New York Times, the International Herald Tribune, and some of Manila's
papers.
d. Right to Private Honor
and Reputation
In the present proceeding, there is also involved an acknowledged and
important interest of individual persons: the right to private reputation.
Judges, by becoming such, are commonly and rightly regarded as voluntarily
subjecting themselves to norms of conduct which embody more stringent
standards of honesty, integrity, and competence than are commonly required
from private persons. 17 Nevertheless, persons who seek or accept from
appointment to the Judiciary cannot reasonably be regarded as having
thereby forfeited any right whatsoever to private honor and reputation. For so
to rule will be simply, in the generality of cases, to discourage all save those

11
who feel no need to maintain their self-respect as a human being in society,
from becoming judges, with obviously grievous consequences for the quality
of our judges and the quality of the justice that they will dispense. Thus, the
protection of the right of individual persons to private reputations is also a
matter of public interest and must be reckoned with as a factor in identifying
and laying down the norms concerning the exercise of press freedom and
free speech.

under which it was made easily and quickly perceived as a transparent

accusation that the PLDT had bribed or "rewarded" six (6) justices for their
votes in its favor in the case of "Philippine Long Distance Telephone
Company v. Eastern Telephone Philippines, Inc. (ETPI)," G.R. No. 94374, 18
by not only paying all their expenses i.e., hotel accommodations and all
other expenses for the trip but also by having one of its own travel
agencies arrange for such a trip.

Clearly, the public interest involved in freedom of speech and the individual
interest of judges (and for that matter, all other public officials) in the
maintenance of private honor and reputation need to be accommodated one
to the other. And the point of adjustment or accommodation between these
two legitimate interest is precisely found in the norm which requires those
who, invoking freedom of speech, publish statements which are clearly
defamatory to identifiable judges or other public officials to exercise bona
fide care in ascertaining the truth of the statements they publish. The norm
does not require that a journalist guarantee the truth of what he says or
publishes. But the norm does prohibit the reckless disregard of private
reputation by publishing or circulating defamatory statements without any
bona fide effort to ascertain the truth thereof. That this norm represents the
generally accepted point of balance or adjustment between the two interests
involved is clear from a consideration of both the pertinent civil law norms
and the Code of Ethics adopted by the journalism profession in the
Philippines. 17a

As already stated, that allegation was condemned as a lie, an outright

fabrication, by the PLDT itself, through one of its responsible officers, Mr.
Vicente Samson, as well as by the heads of the two (2) travel agencies
"patronized by it," Ermin Garcia, Jr. and Marissa de la Paz, supra.

6. Analysis of Jurado Columns

a. Re "Public Utility Firm"
Now, Jurado's allegation in his column of February 8, 1993 "that six
justices, their spouses, children and grandchildren (a total of 36 persons)
spent a vacation in Hong Kong some time last year and that luxurious
hotel accommodations and all their other expenses were paid by a public
utility firm and that the trip reportedly was arranged by the travel agency
patronized by this public utility firm," supra is in the context of the facts

That categorical denial logically and justly placed on Jurado the burden of
proving the truth of his grave accusation, or showing that it had been made
through some honest mistake or error committed despite good faith efforts to
arrive at the truth, or if unable to do either of these things, to offer to atone
for the harm caused.
But the record discloses that Jurado did none of these things. He exerted no
effort whatever to contest or qualify in any manner whatever the emphatic
declaration of PLDT Vice-President Samson that
While the name of the public utility which supposedly financed the alleged
vacation of the Justices in Hongkong has not been disclosed in the Jurado
column, the publication thereof, taken in relation to the spate of recent
newspaper reports alleging that the decision of the Supreme Court, penned
by Mr. Justice Hugo E. Gutierrez, Jr., in the pending case involving the PLDT
and Eastern Telecommunications Phils., Inc. was supposedly ghost written
by a lawyer of PLDT, gives rise to the innuendo or unfair inference that Emil
Jurado is alluding to PLDT in the said column; and, this in fact was the
impression or perception of those who talked to me and the other officers of
the PLDT after having read the Jurado column.

12
The record shows that he made no effort whatsoever to impugn, modify,
clarify or explain Samson's positive assertion that:
. . . (the PLDT) has never paid for any such trip, hotel or other
accommodations for any justice of the Supreme Court or his family during
their vacation, if any, in Hongkong last year. It is not even aware that any of
the justices or their families have made the trip referred to in the Jurado
column;
. . . neither Atty. Emil P. Jurado nor any one in his behalf has ever spoken to
me or any other responsible officer of PLDT about the matter. . .;
. . . PLDT . . . (never) talked to or made arrangements with any travel agency
or any person or entity in connection with any such alleged trip of the
Justices and their families to Hongkong, much less paid anything therefor to
such agencies, fully or in part, in the year 1992 as referred to in Par. 2
hereinabove;
What appears from the record is that without first having made an effort to
talk to any one from the PLDT or the Supreme Court to ascertain the veracity
of his serious accusation, Jurado went ahead and published it.
His explanation for having aired the accusation consists simply of a
declaration that Samson's affidavit, as well as the affidavits of the heads of
the two travel agencies regularly patronized by it, were just assertions of the
affiants' belief and opinion; and that he (Jurado) would not comment on them
except to say that while they are entitled to their beliefs and opinions, these
were binding on them only. This is upon its face evasion of duty of the most
cavalier kind; sophistry of the most arrant sort. What is made plain is that
Jurado is in truth unable to challenge any of the averments in the affidavits of
PLDT and its travel agencies, or otherwise substantiate his accusation, and
that his is a mere resort to semantics to justify the unjustifiable. What is
made plain is that his accusation is false, and possesses not even the saving
grace of honest error.

If relying on second-hand sources of information is, as the Journalists' Code

states, irresponsible, supra, then indulging in pure speculation or gossip is
even more so; and a failure to "present the other side" is equally
reprehensible, being what in law amounts to a denial of due process.
b. Re Equitable Bank Party
Jurado is also shown by the record to have so slanted his report of the
birthday luncheon given by Atty. William Veto (the "in-house counsel of
Equitable Banking Corporation since 1958") as to project a completely false
depiction of it. His description of that affair (in the Manila Standard issues of
January 12 and 28, 1993) as having been hosted by the Equitable Bank "at
its penthouse mainly for some justices, judges, prosecutors and law
practitioners . . . , carries the sanctimonious postscript already quoted,
putting the rhetorical question about how such fraternization affects the
chances in court of lawyers outside that charmed circle.
When confronted with Veto's affidavit to the effect that the party was given by
him at his (Veto's) own expense, the food having been prepared by his wife
in his house, and served by his house help and waiters privately hired by
him; that he had invited many persons including friends of long standing,
among them justices of the Supreme Court and the Court of Appeals; and
that the party had been held in the Officers' Lounge of Equitable Bank,
instead of his home, as in years past, to suit the convenience of his guests
because his birthday fell on a working day, Jurado could not, or would not
deign to, contradict any of those statements. He merely stated that Veto's
affidavit substantially corroborated what he had written in vital details, which
is obviously far from correct.
Most importantly, the record does not show that before he published that
story, Jurado ever got in touch with Veto or anyone in Equitable Bank, Ermita
Branch, to determine the accuracy of what he would later report. If he did, he
would quickly have learned that his sources, whoever or whatever they were,
were not to be relied upon. If he did not, he was gravely at fault at the very

13
least for disregarding the Journalist's Code of Ethics in failing to exert
bona fide efforts to verify the accuracy of his information.
In either case, his publication of the slanted, therefore misleading and false,
report of the affair is censurable. His proffered explanation that the justices
having confirmed their presence at the luncheon, thus corroborating what he
had written in vital details and making further substantiation unnecessary,
and that his report constituted fair comment on the public conduct of public
officers, obviously does not at all explain why a party given by Atty. Veto was
reported by him as one tendered by Equitable Bank. The only conclusion
that may rationally be drawn from these circumstances is that Jurado, unable
to advance any plausible reason for the conspicuous divergence between
what in fact transpired and what he reported, again resorts to semantics and
sophistry to attempt an explanation of the unexplainable. Paraphrasing the
Code of Ethics, he failed to scrupulously report and interpret the news; on
the contrary, his failure or refusal to verify such essential facts as who really
hosted and tendered the luncheon and spent for it, and his playing up of the
Bank's supposed role as such host have resulted in an improper suppression
of those facts and a gross distortion of the truth about them.
c. Re Other Items
Jurado disregarded the truth again, and in the process vilified the Supreme
Court, in the item in his column of February 3, 1993 already adverted to, 19
and more fully quoted as follows:
When lawyers speak of the "Magnificent Seven" one has to make sure which
group they are referring to. Makati's "Magnificent Seven" are a bunch of
Makati regional trial court judges who fix drug related cases. The
"Magnificent Seven" in the Supreme Court consists of a group of justices
who vote as one."
About the last (italicized) statement there is, as in other accusations of
Jurado, not a shred of proof; and the volumes of the Supreme Court Reports
Annotated (SCRA) in which are reported the decisions of the Supreme Court

En Banc for the year 1992 (January to December) and for January 1993,
divulge not a single non-unanimous decision or resolution where seven (7)
justices voted "as one," nor any group of decisions or resolutions where the
recorded votes would even suggest the existence of such a cabal.
This is yet another accusation which Jurado is unable to substantiate
otherwise than, as also already pointed out, by invoking unnamed and
confidential sources which he claims he considers highly credible and
reliable and which would be imperiled by elaborating on the information
furnished by them. He would justify reliance on those sources on grounds of
necessity, custom and usage and claim the protection of Republic Act No.
53, as amended by Republic Act No. 1477 from forced, revelation of
confidential news sources except when demanded by the security of the
state. 20
Surely it cannot be postulated that the law protects a journalist who
deliberately, prints lies or distorts the truth; or that a newsman may escape
liability who publishes derogatory or defamatory allegations against a person
or entity, but recognizes no obligation bona fide to establish beforehand the
factual basis of such imputations and refuses to submit proof thereof when
challenged to do so. It outrages all notions of fair play and due process, and
reduces to uselessness all the injunctions of the Journalists' Code of Ethics
to allow a newsman, with all the potential of his profession to influence
popular belief and shape public opinion, to make shameful and offensive
charges destructive of personal or institutional honor and repute, and when
called upon to justify the same, cavalierly beg off by claiming that to do so
would compromise his sources and demanding acceptance of his word for
the reliability of those sources.
Jurado's other writings already detailed here are of the same sort. While it
might be tedious to recount what has already been stated about the nature
and content of those writings, it is necessary to do so briefly in order not only
to stress the gravity he makes, but also to demonstrate that his response to
the call for their substantiation has been one of unvarying intransigence: an

14
advertance to confidential sources with whose reliability he professes
satisfaction and whom fuller disclosure would supposedly compromise.
There can be no doubt of the serious and degrading character not only to
the Court of Appeals, but also to the judiciary in general of his columns of
November 9, 1992 and January 29, 1993 concerning an unnamed former
justice of the Court of Appeals who had allegedly turned "fixer" for five of the
Court's divisions and who, for the right price, could guarantee that a party's
lawyer could write his own decision for and in the name of the ponente; and
of his column of March 24, 1993 to the effect that anywhere from P30,000 to
P50,000 could buy a temporary restraining order from a regional trial court in
Manila.
The litany of falsehoods, and charges made without bona fide effort at
verification or substantiation, continues:

organization in 1987, there has not been a single instance of any son or
nephew of a member of the Council being nominated to the Court of Appeals
during said member's incumbency; and in this connection, he mistakenly and
carelessly identified RTC Judge Rosalio de la Rosa as the nephew of Justice
(and then Member of the Judicial and Bar Council) Lorenzo Relova when the
truth, which he subsequently learned and admitted, was that the person
referred to was Judge Joselito de la Rosa, the son-in-law, not the nephew, of
Justice Relova. Had he bothered to make any further verification, he would
have learned that at all sessions of the Council where the nomination of
Judge Joselito de la Rosa was considered, Justice Relova not only declined
to take part in the deliberations, but actually left the conference room; and he
would also have learned that Judge Rosalio de la Rosa had never been
nominated indeed, to this date, he has not been nominated to the Court of
Appeals.

(b) He has refused to offer any substantiation, either before the Ad Hoc
Committee or in this proceeding, for his report of October 27, 1992
concerning an unnamed lady secretary of a Makati RTC Judge who, besides
earning at least P10,000 for making sure a case is raffled off to a
"sympathetic" judge, can also arrange the issuance of attachments and
injunctions for a fee of one (1%) percent over and above usual premium for
the attachment or injunction bond, a fee that in one instance amounted to
P300,000.

(d) He has recklessly slandered the Judicial and Bar Council by charging that
it has improperly made nominations to the Court of Appeals on
considerations other than of merit or fitness, through the manipulations of the
Council's Secretary, Atty. Daniel Martinez; or because the nominee happens
to be a relative of a member of the Council (e.g., Judge Joselito de la Rosa,
initially identified as Judge Rosalio de la Rosa) or of the Supreme Court (he
could name none so situated); or has powerful political sponsor (referring to
RTC Judge Conrado Vasquez, Jr., son and namesake of the Ombudsman).
Acceptance of the truth of these statements is precluded, not only by the
familiar and established presumption of regularity in the performance of
official functions, but also, and even more conclusively by the records of the
Judicial and Bar Council itself, which attest to the qualifications of Atty.
Daniel Martinez, Clerk of Court of the Supreme Court, Judge Joselito de la
Rosa, and Judge Conrado Vasquez, Jr., for membership in the Appellate
Tribunal;

(c) His report (columns of January 16 and 29, 1993) that the Judicial and Bar
Council acted contrary to ethics and delicadeza in nominating to the Court of
Appeals a son and a nephew of its members is completely untrue. The most
cursory review of the records of the Council will show that since its

(e) Equally false is Jurado's report (column of January 25, 1993) that
nomination to the Court of Appeals of some worthy individuals like Quezon
City RTC Judge Maximiano Asuncion, and Atty. Raul Victorino (who was
closely identified with former Senate President Salonga) had been blocked

(a) Jurado's column of January 30, 1993 about eight (8) Makati judges who
were "handsomely paid" for decisions favoring drug-traffickers and other bigtime criminals was based on nothing more than raw intelligence contained is
confidential police report. It does not appear that any part of that report has
been reliably confirmed.

15
because they had "incurred the ire of the powers that be," the truth, which
could very easily have been verified, being that a pending administrative
case against Judge Asuncion had stood in the way of his nomination, and
since Mr. Victorino had been sponsored or recommended by then Senate
President Salonga himself, the fact that he was not nominated can hardly be
attributed to the hostility or opposition of persons in positions of power or
influence.

Administrator" (Sec. 7, par. 1, id.) these provisions being broad enough,

not only to authorize unilateral action by the Executive Judge himself on
provisional remedies and interlocutory matters even prior to raffle of the main
case, but also to delegate the authority to act thereon to other judges.

(f) Jurado was similarly unfair, untruthful and unfoundedly judgmental in his
reporting about Executive Judge Rosalio de la Rosa of the Manila Regional
Trial Court as:

Jurado does not explain why: (1) he made no effort to verify the state of the
rules on the matter; (2) he precipitately assumed that the views of Judge
Teresita Dy-Liaco Flores, whose complaint on the subject he claims he
merely summarized, were necessarily correct and the acts of Judge de la
Rosa necessarily wrong or improper; and (3) he did not try to get Judge de la
Rosa's side at all.

(1) having been nominated to the Court of Appeals by the Judicial and Bar
Council chiefly, if not only, by reason of being the nephew of Justice Relova
and the cousin of Chief Justice Narvasa, the truth, as already pointed out,
being that Judge Rosalio de la Rosa had never been thus nominated to the
Court of Appeals, the nominee having been Judge Joselito de la Rosa, the
son-in-law (not nephew) of Justice Relova; and

Common to all these utterances of Jurado is the failure to undertake even

the most cursory verification of their objective truth; the abdication of the
journalist's duty to report and interpret the news with scrupulous fairness;
and the breach of the law's injunction that a person act with justice, give
everyone his due and observe honesty and good faith both in the exercise of
his rights and in the performance of his duties.

(2) having discarded the rule that cases seeking provisional remedies should
be raffled off to the judges (column of January 28, 1993) and adopted a
system of farming out applications for temporary restraining orders, etc.,
among all the branches of the court; here again, Jurado is shown to have
written without thinking, and made statements without verifying the accuracy
of his information or seeking the views of the subject of his pejorative
statements; the merest inquiry would have revealed to him that while Circular
No. 7 dated September 23, 1974 requires that no case may be assigned in
multi-sala courts without raffle (for purposes of disposition on the merits),
Administrative Order No. 6, dated June 30, 1975 (Sec. 15, Par. IV), 21
empowers Executive Judges to act on all applications for provisional
remedies (attachments, injunctions, or temporary restraining orders,
receiverships, etc.), or on interlocutory matters before raffle, in order to
"balance the workload among courts and judges, (Sec. l, par. 2, id.), and
exercise such other powers and prerogatives as may in his judgment be
necessary or incidental to the performance of his functions as a Court

7. Jurado's Proffered Excuses

and Defenses
The principle of press freedom is invoked by Jurado in justification of these
published writings. That invocation is obviously unavailing in light of the basic
postulates and the established axioms or norms for the proper exercise of
press freedom earlier set forth in this opinion. 22
Jurado next puts in issue this Court's power to cite him for contempt. The
issue is quickly disposed of by adverting to the familiar principle reiterated
inter alia in Zaldivar v. Gonzales: 23
. . . (T)he Supreme Court has inherent power to punish for contempt, to
control in the furtherance of justice the conduct of ministerial officers of the
Court including lawyers and all other persons connected in any manner with
a case before the Court (In re Kelly, 35 Phil. 944 [1916]; In re Severino

16
Lozano and Anastacio Quevedo, 54 Phil. 801 (1930]; In re Vicente Pelaez,
44 Phil. 567 [1923]; and In re Vicente Sotto, 82 Phil. 595 [1949]). The power
to punish for contempt is "necessary for its own protection against improper
interference with the due administration of justice," "(i)t is not dependent
upon the complaint of any of the parties litigant" (Halili v. Court of Industrial
Relations, 136 SCRA 112 [1985]; Andres v. Cabrera, 127 SCRA 802 [1984];
Montalban v. Canonoy, 38 SCRA 1 [1971]; Commissioner of Immigration v.
Cloribel, 20 SCRA 1241 [1967]; Herras Teehankee v. Director of Prisons, 76
Phil. 630 [1946]).
Contempt is punishable, even if committed without relation to a pending
case. Philippine jurisprudence parallels a respectable array of English
decisions holding contumacious scurrilous attacks against the courts
calculated to bring them into disrepute, even when made after the trial stage
or after the end of the proceedings. The original doctrine laid down in People
vs. Alarcon 24 that there is no contempt if there is no pending case has
been abandoned in subsequent rulings of this Court which have since
adopted the Moran dissent therein, 25 viz.:
Contempt, by reason of publications relating to court and to court
proceedings, are of two kinds. A publication which tends to impede, obstruct,
embarrass or influence the courts in administering justice in a pending suit or
proceeding, constitutes criminal contempt which is summarily punishable by
courts. This is the rule announced in the cases relied upon by the majority. A
publication which tends to degrade the courts and to destroy public
confidence in them or that which tends to bring them in any way into
disrepute, constitutes likewise criminal contempt, and is equally punishable
by courts. In the language of the majority, what is sought, in the first kind of
contempt, to be shielded against the influence of newspaper comments, is
the all-important duty of the courts to administer justice in the decision of a
pending case. In the second kind of contempt, the punitive hand of justice is
extended to vindicate the courts from any act or conduct calculated to bring
them into disfavor or to destroy public confidence in them. In the first, there is
no contempt where there is no action pending, as there is no decision which
might in any be influenced by the newspaper publication. In the second, the

contempt exists, with or without a pending case, as what is sought to be

protected is the court itself and its dignity. (12 Am. Jur. pp. 416-417.) Courts
would lose their utility if public confidence in them is destroyed.
The foregoing disposes of Jurado's other contention that the present
administrative matter is not a citation for direct contempt, there being no
pending case or proceeding out of which a charge of direct contempt against
him may arise; this, even without regard to the fact that the statements made
by him about sojourn in Hongkong of six Justices of the Supreme Court were
clearly in relation to a case involving two (2) public utility companies, then
pending in this Court. 26
His theory that there is no formal charge against him is specious. His
published statements about that alleged trip are branded as false in no
uncertain terms by the sworn statement and letter of Vice-President Vicente
R. Samson of the Philippine Long Distance Telephone Company which:
(a) "emphatically and categorically" deny that PLDT had made any
arrangements with any travel agency, or with the two travel agencies it
patronized or retained, or paid anything, on account of such alleged trip;
(b) positively affirm (i) that PLDT was "not even aware that any of the justices
or their families . . . (had) made the trip referred to in the Jurado column,"
and (ii) that neither Atty. Emil P. Jurado nor anyone in his behalf has ever
spoken to . . . (said Mr. Samson) or any other responsible officer of PLDT
about the matter . . .; and
(c) beseech the Court to "take such action (on the matter) as may be
appropriate.
As already stated, the Court, in its Resolution of February 16, 1993:
(a) ordered the subject of Samson's letter and affidavit docketed as an
official Court proceeding to determine the truth of Jurado's allegations about
it; and
(b) directed also that Jurado be furnished copies of Atty. William Veto's

17
affidavit on the luncheon party hosted by him (which Jurado reported as one
given by Equitable Bank) and that Jurado file comment on said affidavits as
well as allegations in specified columns of his. Jurado was also furnished
copies of the affidavits later submitted by the two travel agencies mentioned
in Samson's statement, and was required to comment thereon.
It was thus made clear to him that he was being called to account for his
published statements about the matters referred to, and that action would be
taken thereon against him as "may be appropriate." That that was in fact how
he understood it is evident from his submitted defenses, denying or
negativing liability for contempt, direct indirect. Indeed, as journalist of no
little experience and a lawyer to boot, he cannot credibly claim an inability to
understand the nature and import of the present proceedings.
Jurado would also claim that the Court has no administrative supervision
over him as a member of the press or over his work as a journalist, and asks
why he is being singled out, and, by being required to submit to a separate
administrative proceeding, treated differently than his other colleagues in
media who were only asked to explain their reports and comments about
wrongdoing in the judiciary to the Ad Hoc Committee. The answer is that
upon all that has so far been said, the Court may hold anyone to answer for
utterances offensive to its dignity, honor or reputation which tend to put it in
disrepute, obstruct the administration of justice, or interfere with the
disposition of its business or the performance of its functions in an orderly
manner. Jurado has not been singled out. What has happened is that there
have been brought before the Court, formally and in due course, sworn
statements branding his reports as lies and thus imposing upon him the
alternatives of substantiating those reports or assuming responsibility for
their publication.
Jurado would have the Court clarify in what capacity whether a journalist,
or as a member of the bar he has been cited in these proceeding.
Thereby he resurrects the issue he once raised in a similar earlier
proceeding: that he is being called to account as a lawyer for his statements
as a

journalist. 27 This is not the case at all. Upon the doctrines and principles
already inquired into and cited, he is open to sanctions as journalist who has
misused and abused press freedom to put the judiciary in clear and present
to the danger of disrepute and of public obdium and opprobrium, detriment
and prejudice of the administration of justice. That he is at the same time a
member of the bar has nothing to do with the setting in of those sanctions,
although it may aggravate liability. At any rate, what was said about the
matter in that earlier case is equally cogent here:
Respondent expresses perplexity at being called to account for the
publications in question in his capacity as a member of the bar, not as a
journalist. The distinction is meaningless, since as the matter stands, he has
failed to justify his actuations in either capacity, and there is no question of
the Court's authority to call him to task either as a newsman or as a lawyer.
What respondent proposes is that in considering his actions, the Court judge
them only as those of a member of the press and disregard the fact that he
is also a lawyer. But his actions cannot be put into such neat compartments.
In the natural order of things, a person's acts are determined by, and reflect,
the sum total of his knowledge, training and experience. In the case of
respondent in particular the Court will take judicial notice of the frequent
appearance in his regular columns of comments and observations utilizing
legal language and argument, bearing witness to the fact that in pursuing his
craft as a journalist he calls upon his knowledge as a lawyer to help inform
and influence his readers and enhance his credibility. Even absent this
circumstance, respondent cannot honestly assert that in exercising his
profession as journalist he does not somehow, consciously or unconsciously,
draw upon his legal knowledge and training. It is thus not realistic, nor
perhaps even possible, to come to fair, informed and intelligent judgment of
respondent's actuations by divorcing from consideration the fact that he is a
lawyer as well as a newspaperman, even supposing, which is not the case
that he may thereby be found without accountability in this matter.
To repeat, respondent cannot claim absolution even were the Court to lend
ear to his plea that his actions be judged solely as those of a newspaperman

18
unburdened by the duties and responsibilities peculiar to the law profession
of which he is also a member.
8. The Dissents
The eloquent, well-crafted dissents of Messrs. Justices Puno and Melo that
would invoke freedom of the press to purge Jurado's conduct of any taint of
contempt must now be briefly addressed.
a. Apparent Misapprehension
of Antecedents and Issue
Regrettably, there appears to be some misapprehension not only about the
antecedents directly leading to the proceedings at bar but also the basic
issues involved.
The dissents appear to be of the view, for instance, that it was chiefly
Jurado's failure to appear before the Ad Hoc Committee in response to two
(2) letters of invitation issued to him, that compelled the Court to order the
matter to be docketed on February 16, 1993 and to require respondent
Jurado to file his Comment. This is not the case at all. As is made clear in
Sub-Heads 3 and 4 of this opinion, supra, the direct cause of these
proceedings was not Jurado's refusal to appear and give evidence before
the Ad Hoc Committee. The direct cause was the letters of PLDT and Atty.
William Veto, supported by affidavits, denouncing certain of his stories as
false, 28 with the former praying that the Court take such action as may be
appropriate. And it was precisely "the matter dealt with in the letter and
affidavit of the PLDT" that this Court ordered to "be duly DOCKETED, and
hereafter considered and acted upon as an official Court proceeding;" this,
by Resolution dated February 16, 1993; the Court also requiring, in the same
Resolution, "that the Clerk of Court SEND COPIES of the PLDT letter and
affidavit, and of the affidavit of Atty. William Veto to Atty. Emil Jurado . . .,"
and that Jurado should comment thereon "as well as (on) the allegations
made by him in his columns, herein specified" because of explicit claims,
and indications of the falsity or, inaccuracy thereof.

There thus also appears to be some misapprehension of the basic issues, at

least two of which are framed in this wise: (1) the right of newsmen to refuse
subpoenas, summons, or "invitations" to appear in administrative
investigations," and (2) their right "not to reveal confidential sources of
information under R.A. No. 53, as amended" which are not really involved
here in respect of which it is theorized that the majority opinion will have
an inhibiting effect on newsmen's confidential sources of information, and
thereby abridges the freedom of the press.
(1) No Summons or Subpoena
Ever Issued to Jurado
The fact is that no summons or subpoena was ever issued to Jurado by the
Ad Hoc Committee; nor was the issuance of any such or similar processes,
or any punitive measures for disobedience thereto, intended or even
contemplated. Like most witnesses who gave evidence before the
Committee, Jurado was merely invited to appear before it to give information
in aid of its assigned task of ascertaining the truth concerning persistent
rumors and reports about corruption in the judiciary. When he declined to
accept the invitations, the Ad Hoc Committee took no action save to inform
the Court thereof; and the Court itself also took no action. There is thus
absolutely no occasion to ascribe to that investigation and the invitation to
appear thereat a "chilling effect" on the by and large "hard-boiled" and selfassured members of the media fraternity. If at all, the patience and
forbearance of the Court, despite the indifference of some of its invitees and
projected witnesses, appear to have generated an attitude on their part
bordering on defiant insolence.
(2) No Blanket Excuse Under RA 53
From Responding to Subpoena
Even assuming that the facts were as presented in the separate opinion, i.e.,
that subpoenae had in fact been issued to and served on Jurado, his
unexplained failure to obey the same would prima facie constitute
constructive contempt under Section 3, Rule 71 of the Rules of Court. It

19
should be obvious that a journalist may not refuse to appear at all as
required by a subpoena on the bare plea that under R.A. No 53, he may not
be compelled to disclose the source of his information. For until he knows
what questions will be put to him as witness for which his presence has
been compelled the relevance of R.A. No. 53 cannot be ascertained. His
duty is clear. He must obey the subpoena. He must appear at the appointed
place, date and hour, ready to answer questions, and he may invoke the
protection of the statute only at the appropriate time.
b. The Actual Issue
The issue therefore had nothing to do with any failure of Jurado's to obey a
subpoena, none ever having been issued to him, and the Ad Hoc Committee
having foreborne to take any action at all as regards his failure to accept its
invitations. The issue, as set out in the opening sentence of this opinion,
essentially concerns "(l)iability for published statements demonstrably false
or misleading, and derogatory of the courts and individual judges."
Jurado is not being called to account for declining to identify the sources of
his news stories, or for refusing to appear and give testimony before the Ad
Hoc Committee. He is not being compelled to guarantee the truth of what he
publishes, but to exercise honest and reasonable efforts to determine the
truth of defamatory statements before publishing them. He is being meted
the punishment appropriate to the publication of stories shown to be false
and defamatory of the judiciary stories that he made no effort whatsoever
to verify and which, after being denounced as lies, he has refused, or is
unable, to substantiate.

cannot invoke such right as a shield against liability for printing stories that
are untrue and derogatory of the courts, or others. The ruling, in other words,
is that when called to account for publications denounced as inaccurate and
misleading, the journalist has the option (a) to demonstrate their truthfulness
or accuracy even if in the process he disclose his sources, or (b) to refuse,
on the ground that to do so would require such disclosure. In the latter event,
however, he must be ready to accept the consequences of publishing
untruthful or misleading stories the truth and accuracy of which he is
unwilling or made no bona fide effort to prove; for R.A. 53, as amended, is
quite unequivocal that the right of refusal to disclose sources is "without
prejudice to . . . liability under civil and criminal laws."
R.A. 53 thus confers no immunity from prosecution for libel or for other
sanction under law. It does not declare that the publication of any news
report or information which was "related in confidence" to the journalist is not
actionable; such circumstance (of confidentiality) does not purge, the
publication of its character as defamatory, if indeed it be such, and
actionable on that ground. All it does is give the journalist the right to refuse
(or not to be compelled) to reveal the source of any news report published by
him which was revealed to him in confidence.
A journalist cannot say, e.g.: a person of whose veracity I have no doubt told
me in confidence that Justices X and Y received a bribe of P1M each for
their votes in such and such a case, or that a certain Judge maintains a
mistress, and when called to account for such statements, absolve himself
by claiming immunity under R.A. 53, or invoking press freedom.
d. A Word about "Group Libel"

c. RA 53 Confers No Immunity from Liability

for False or Defamatory Publications
This opinion neither negates nor seeks to enervate the proposition that a
newsman has a right to keep his sources confidential; that he cannot be
compelled by the courts to disclose them, as provided by R.A. 53, unless the
security of the State demands such revelation. But it does hold that he

There is hardly need to belabor the familiar doctrine about group libel and
how it has become the familiar resort of unscrupulous newsmen who can
malign any number of anonymous members of a common profession, calling
or persuasion, thereby putting an entire institution like the judiciary in this
case in peril of public contumely and mistrust without serious risk of being
sued for defamation. The preceding discussions have revealed Jurado's

20
predilection for, if not his normal practice of, refusing to specifically identify or
render identifiable the persons he maligns. Thus, he speaks of the
"Magnificent Seven," by merely referring to undisclosed regional trial court
judges in Makati; the "Magnificent Seven" in the Supreme Court, as some
undesignated justices who supposedly vote as one; the "Dirty Dozen," as
unidentified trial judges in Makati and three other cities. He adverts to an
anonymous group of justices and judges for whom a bank allegedly hosted a
party; and six unnamed justices of this Court who reportedly spent a prepaid
vacation in Hong Kong with their families. This resort to generalities and
ambiguities is an old and familiar but reprehensible expedient of
newsmongers to avoid criminal sanctions since the American doctrine of
group libel is of restricted application in this jurisdiction. For want of a
definitely identified or satisfactorily identifiable victim, there is generally no
actionable libel, but such a craven publication inevitably succeeds in putting
all the members of the judiciary thus all together referred to under a cloud of
suspicion. A veteran journalist and lawyer of long standing that he is, Jurado
could not have been unaware of the foregoing realities and consequences.

If the information is not verifiable, and it is derogatory of any third party, then
it ought not to be published for obvious reasons. It would be unfair to the
subject of the report, who would be without means of refuting the imputations
against him. And it would afford an unscrupulous journalist a ready device by
which to smear third parties without the obligation to substantiate his
imputations by merely claiming that the information had been given to him "in
confidence".
It is suggested that there is another face to the privileged character of a
journalist's source of information than merely the protection of the journalist,
and that it is intended to protect also the source itself. What clearly is implied
is that journalist may not reveal his source without the latter's clearance or
consent. This totally overlooks the fact that the object of a derogatory
publication has at least an equal right to know the source thereof and, if
indeed traduced, to the opportunity of obtaining just satisfaction from the
traducer.
9. Need for Guidelines

e. Substantiation of News Report

Not Inconsistent with RA 53
It is argued that compelling a journalist to substantiate the news report or
information confidentially revealed to him would necessarily negate or dilute
his right to refuse disclosure of its source. The argument will not stand
scrutiny.
A journalist's "source" either exists or is fictitious. If the latter, plainly, the
journalist is entitled to no protection or immunity whatsoever.
If the "source" actually exists, the information furnished is either capable of
independent substantiation, or it is not. If the first, the journalist's duty is
clear: ascertain, if not obtain, the evidence by which the information may be
verified before publishing the same; and if thereafter called to account
therefor, present such evidence and in the process afford the party adversely
affected thereby opportunity to dispute the information or show it to be false.

Advertences to lofty principle, however eloquent and enlightening, hardly

address the mundane, but immediate and very pertinent, question of whether
a journalist may put in print unverified information derogatory of the courts
and judges and yet remain immune from liability for contempt for refusing,
when called upon, to demonstrate their truth on the ground of press freedom
or by simply claiming that he need not do so since (or if) it would compel him
to disclose the identity of his source or sources.
The question, too, is whether or not we are prepared to say that a journalist's
obligation to protect his sources of information transcends, and is greater
than, his duty to the truth; and that, accordingly, he has no obligation
whatsoever to verify, or exercise bona fide efforts to verify, the information he
is given or obtain the side of the party adversely affected before he publishes
the same.

21
True, the pre-eminent role of a free press in keeping freedom alive and
democracy in full bloom cannot be overemphasized. But it is debatable if that
role is well and truly filled by a press let loose to print what it will, without
reasonable restraints designed to assure the truth and accuracy of what is
published. The value of information to a free society is in direct proportion to
the truth it contains. That value reduces to little or nothing when it is no
longer possible for the public to distinguish between truth and falsehood in
news reports, and the courts are denied the mechanisms by which to make
reasonably sure that only the truth reaches print.
a. No Constitutional Protection for Deliberately
False or Recklessly Inaccurate Reports
It is worth stressing that false reports about a public official or other person
are not shielded from sanction by the cardinal right to free speech enshrined
in the Constitution. Even the most liberal view of free speech has never
countenanced the publication of falsehoods, specially the persistent and
unmitigated dissemination of patent lies. The U.S. Supreme Court, 29 while
asserting that "(u)nder the First Amendment there is no such thing as a false
idea," and that "(h)owever pernicious an opinion may seem, we depend for
its correction not on the conscience of judges and juries but on the
competition of other ideas" (citing a passage from the first Inaugural Address
of Thomas Jefferson), nonetheless made the firm pronouncement that "there
is no constitutional value in false statements of fact," and "the erroneous
statement of fact is not worthy of constitutional protection (although) . . .
nevertheless inevitable in free debate." "Neither the intentional lie nor the
careless error," it said, "materially advances society's interest in "unhibited,
robust, and wide-open" debate on public issues. New York Times Co. v.
Sullivan, 376 US, at 270, 11 L Ed 2d 686, 95 ALR2d 1412. They belong to
that category of utterances which "are no essential part of any exposition of
ideas, and are of such slight social value as a step to the truth that any
benefit that may be derived from them is clearly outweighed by the social
interest in order and morality." Chaplinsky v, new Hampshire, 315 US 568,
572, 86 L Ed 1031, 62 S Ct 766 (1942).

"The use of calculated falsehood," it was observed in another case, 30 "would

put a different cast on the constitutional question. Although honest
utterances, even if inaccurate, may further the fruitful exercise of the right of
free speech, it does not follow that the lie, knowingly and deliberately
published about a public official, should enjoy a like immunity. . . . (T)he
knowingly false statement and the false statement made with reckless
disregard of the truth, do not enjoy constitutional protection."
Similarly, in a 1969 case concerning a patently false accusation made
against a public employee avowedly in fulfillment of a "legal, moral, or social
duty," 31 this Court, through the late Chief Justice Roberto Concepcion, ruled
that the guaranty of free speech cannot be considered as according
protection to the disclosure of lies, gossip or rumor, viz.:
. . . Defendant's civil duty was to help the Government clean house and
weed out dishonest, unfit or disloyal officers and employees thereof, where
there is reasonable ground to believe that they fall under this category. He
had no legal right, much less duty, to gossip, or foster the circulation of
rumors, or jump at conclusions and more so if they are gratuitous or
groundless. Otherwise, the freedom of speech, which is guaranteed with a
view to strengthening our democratic institutions and promoting the general
welfare, would be a convenient excuse to engage in the vituperation of
individuals, for the attainment of private, selfish and vindictive ends, thereby
hampering the operation of the Government with. administrative
investigations of charges preferred without any color or appearance of truth
and with no other probable effect than the harassment of the officer or
employee concerned, to the detriment of public service and public order.
b. No "Chilling Effect"
The fear expressed, and earlier adverted to, that the principles here affirmed
would have a "chilling effect" on media professionals, seems largely
unfounded and should be inconsequential to the greater number of
journalists in this country who, by and large, out of considerations of truth,
accuracy, and fair play, have commendably refrained from ventilating what

22
would otherwise be "sensational" or "high-visibility" stories. In merely seeking
to infuse and perpetuate the same attitude and sense of responsibility in all
journalists, i.e., that there is a need to check out the truth and correctness of
information before publishing it, or that, on the other hand, recklessness and
crass sensationalism should be eschewed, this decision, surely, cannot have
such "chilling effect," and no apprehension that it would deter the
determination of truth or the public exposure of wrong can reasonably be
entertained.
The people's right to discover the truth is not advanced by unbridled license
in reportage that would find favor only with extremist liberalism. If it has done
nothing else, this case has made clear the compelling necessity of the
guidelines and parameters elsewhere herein laid down. They are eminently
reasonable, and no responsible journalist should have cause to complain of
difficulty in their observance.
10. Afterword
It seems fitting to close this opinion, with the words of Chief Justice Moran,
whose pronouncements have already been earlier quoted, 32 and are as
germane today as when they were first written more than fifty (50) years ago.
33

It may be said that respect to courts cannot be compelled and that public
confidence should be a tribute to judicial worth, virtue and intelligence. But
compelling respect to courts is one thing and denying the courts the power to
vindicate themselves when outraged is another. I know of no principle of law
that authorizes with impunity a discontended citizen to unleash, by
newspaper publications, the avalanche of his wrath and venom upon courts
and judges. If he believes that a judge is corrupt and that justice has
somewhere been perverted, law and order require that he follow the
processes provided by the Constitution and the statutes by instituting the
corresponding proceedings for impeachment or otherwise. . . .
xxx xxx xxx

It might be suggested that judges who are unjustly attacked have a remedy
in an action for libel. This suggestion has, however, no rational basis in
principle. In the first place, the outrage is not directed to the judge as a
private individual but to the judge as such or to the court as an organ of the
administration of justice. In the second place, public interests will gravely
suffer where the judge, as such, will, from time to time, be pulled down and
disrobed of his judicial authority to face his assailant on equal grounds and
prosecute cases in his behalf as a private individual. The same reasons of
public policy which exempt a judge from civil liability in the exercise of his
judicial functions, most fundamental of which is the policy to confine his time
exclusively to the discharge of his public duties, applies here with equal, if
not superior, force (Hamilton v. Williams, 26 Ala. 529; Busteed v. Parson, 54
Ala. 403; Ex parte McLeod, 120 Fed. 130; Coons v. State, 191 Ind. 580; 134
N. E. 194). . . .
Jurado's actuations, in the context in which they were done, demonstrate
gross irresponsibility, and indifference to factual accuracy and the injury that
he might cause to the name and reputation of those of whom he wrote. They
constitute contempt of court, directly tending as they do to degrade or abase
the administration of justice and the judges engaged in that function. By
doing them, he has placed himself beyond the circle of reputable, decent and
responsible journalists who live by their Code or the "Golden Rule" and who
strive at all times to maintain the prestige and nobility of their calling.
Clearly unrepentant, exhibiting no remorse for the acts and conduct detailed
here, Jurado has maintained a defiant stance. "This is a fight I will not run
from," he wrote in his column of March 21, 1993; and again, "I will not run
away from a good fight," in his column of March 23, 1993. Such an attitude
discourages leniency, and leaves no choice save the application of sanctions
appropriate to the offense.
WHEREFORE, the Court declares Atty. Emil (Emiliano) P. Jurado guilty of
contempt of court and in accordance with Section 6, Rule 71 of the Rules of
Court, hereby sentences him to pay a fine of one thousand pesos
(P1,000,00).

23
IT IS SO ORDERED.
Feliciano, Bidin, Regalado Davide, Jr., Romero, Bellosillo, Quiason,
Mendoza and Francisco, JJ., concur.
Vitug and Kapunan, JJ., took no part.

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

24
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 nonpeaceful 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

25
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

26
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

27
respondent Mayor, is not devoid of discretion in determining whether or not a
permit would be granted. It is not, however, unfettered discretion. While
prudence requires that there be a realistic appraisal not of what may possibly
occur but of what may probably occur, given all the relevant circumstances,
still the assumption especially so where the assembly is scheduled for a
specific public place is that the permit must be for the assembly being
held there. The exercise of such a right, in the language of Justice Roberts,
speaking for the American Supreme Court, is not to be "abridged on the plea
that it may be exercised in some other place." 37

7. In fairness to respondent Mayor, he acted on the belief that Navarro v.

Villegas 38 and Pagkakaisa ng Manggagawang Pilipino (PMP.) v. Bagatsing,
39 called for application. While the General rule is that a permit should
recognize the right of the applicants to hold their assembly at a public place
of their choice, another place may be designated by the licensing authority if
it be shown that there is a clear and present danger of a substantive evil if no
such change were made. In the Navarro and the Pagkakaisa decisions, this
Court was persuaded that the clear and present danger test was satisfied.
The present situation is quite different. Hence the decision reached by the
Court. The mere assertion that subversives may infiltrate the ranks of the
demonstrators does not suffice. Not that it should be overlooked. There was
in this case, however, the assurance of General Narciso Cabrera,
Superintendent, Western Police District, Metropolitan Police Force, that the
police force is in a position to cope with such emergency should it arise That
is to comply with its duty to extend protection to the participants of such
peaceable assembly. Also from him came the commendable admission that
there were the least five previous demonstrations at the Bayview hotel Area
and Plaza Ferguson in front of the United States Embassy where no
untoward event occurred. It was made clear by petitioner, through counsel,
that no act offensive to the dignity of the United States Mission in the
Philippines would take place and that, as mentioned at the outset of this
opinion, "all the necessary steps would be taken by it 'to ensure a peaceful
march and rally.' " 40 Assistant Solicitor General Montenegro expressed the

view that the presence of policemen may in itself be a provocation. It is a

sufficient answer that they should stay at a discreet distance, but ever ready
and alert to cope with any contingency. There is no need to repeat what was
pointed out by Chief Justice Hughes in Cox that precisely, it is the duty of the
city authorities to provide the proper police protection to those exercising
their right to peaceable assembly and freedom of expression.
8. By way of a summary The applicants for a permit to hold an assembly
should inform the licensing authority of the date, the public place where and
the time when it will take place. If it were a private place, only the consent of
the owner or the one entitled to its legal possession is required. Such
application should be filed well ahead in time to enable the public official
concerned to appraise whether there may be valid objections to the grant of
the permit or to its grant but at another public place. It is an indispensable
condition to such refusal or modification that the clear and present danger
test be the standard for the decision reached. If he is of the view that there is
such an imminent and grave danger of a substantive evil, the applicants
must be heard on the matter. Thereafter, his decision, whether favorable or
adverse, must be transmitted to them at the earliest opportunity. Thus if so
minded, then, can have recourse to the proper judicial authority. Free speech
and peaceable assembly, along with the other intellectual freedoms, are
highly ranked in our scheme of constitutional values. It cannot be too
strongly stressed that on the judiciary, even more so than on the other
departments rests the grave and delicate responsibility of assuring
respect for and deference to such preferred rights. No verbal formula, no
sanctifying phrase can, of course, dispense with what has been so
felicitiously termed by Justice Holmes "as the sovereign prerogative of
judgment." Nonetheless, the presumption must be to incline the weight of the
scales of justice on the side of such rights, enjoying as they do precedence
and primacy. Clearly then, to the extent that there may be inconsistencies
between this resolution and that of Navarro v. Villegas, that case is pro tanto
modified. So it was made clear in the original resolution of October 25, 1983.
9. Respondent Mayor posed the issue of the applicability of Ordinance No.
7295 of the City of Manila prohibiting the holding or staging of rallies or

28
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
EN BANC
G.R. No. L-62270 May 21, 1984
CRISPIN MALABANAN, EVELIO JALOS, BEN LUTHER LUCAS, SOTERO
LEONERO, and JUNE LEE, petitioners,
vs.
THE HONORABLE ANASTACIO D. RAMENTO, in his capacity as the
Director of the National Capital Region of the Ministry of Education, Culture
and Sports, THE GREGORIO ARANETA UNIVERSITY FOUNDATION;
CESAR MIJARES, in his capacity as the President of the Gregorio Araneta
University Foundation, GONZALO DEL ROSARIO, in his capacity as the
Director for Academic Affairs of the Gregorio Araneta University Foundation;
TOMAS B. MESINA, in his capacity as the Dean of Student Affairs of the
Gregorio Araneta University Foundation; ATTY. LEONARDO PADILLA, in his
capacity as Chief Legal Counsel & Security Supervisor of the Gregorio

29
Araneta University Foundation; ATTY. FABLITA AMMAY, ROSENDO
GALVANTE and EUGENIA TAYAO, in their capacities as members of the Ad
Hoc Committee of the Gregorio Araneta University Foundation, respondents.
Honesto N. Salcedo for petitioners.
The Solicitor General and Leonardo G. Padilla & Pablita G. Ammay for
respondents.
FERNANDO, CJ.:
The failure to accord respect to the constitutional rights of freedom of
peaceable assembly and free speech is the grievance alleged by petitioners,
students of the Gregorio Araneta University Foundation, in this certiorari,
prohibition and mandamus proceeding. The principal respondents are
Anastacio D. Ramento, Director of the National Capital Region of the
Ministry of Education, Culture and Sports and the Gregorio Araneta
University Foundation. 1 The nullification of the decision of respondent
Ramento affirming the action taken by respondent Gregorio Araneta
University Foundation finding petitioners guilty of illegal assembly and
suspending them is sought in this petition.

The facts are not open to dispute. Petitioners were officers of the Supreme
Student Council of respondent University. They sought and were granted by
tile school authorities a permit to hold a meeting from 8:00 A.M. to 12:00 P.M,
on August 27, 1982. Pursuant to such permit, along with other students, they
held a general assembly at the Veterinary Medicine and Animal Science
basketball court (VMAS), the place indicated in such permit, not in the
basketball court as therein stated but at the second floor lobby. At such
gathering they manifested in vehement and vigorous language their
opposition to the proposed merger of the Institute of Animal Science with the
Institute of Agriculture. At 10:30 A.M., the same day, they marched toward
the Life Science Building and continued their rally. It was outside the area

covered by their permit. They continued their demonstration, giving utterance

to language severely critical of the University authorities and using
megaphones in the process. There was, as a result, disturbance of the
classes being held. Also, the non-academic employees, within hearing
distance, stopped their work because of the noise created. They were asked
to explain on the same day why they should not be held liable for holding an
illegal assembly. Then on September 9, 1982, they were formed through a
memorandum that they were under preventive suspension for their failure to
explain the holding of an illegal assembly in front of the Life Science
Building. The validity thereof was challenged by petitioners both before the
Court of First Instance of Rizal in a petition for mandamus with damages
against private respondents 2 and before the Ministry of Education, Culture,
and Sports. On October 20, 1982, respondent Ramento, as Director of the
National Capital Region, found petitioners guilty of the charge of having
violated par. 146(c) of the Manual for Private Schools more specifically their
holding of an illegal assembly which was characterized by the violation of the
permit granted resulting in the disturbance of classes and oral defamation.
The penalty was suspension for one academic year. Hence this petition.
On November 16, 1982, this Court issued the following resolution: "Acting on
the urgent ex-parte motion for the immediate issuance of a temporary
mandatory order filed by counsel for petitioners, dated November 12, 1982,
the Court Resolved to ISSUE A TEMPORARY RESTRAINING ORDER
enjoining all respondents or any person or persons acting in their place or
stead from enforcing the order of the Ministry of' Education and Culture
dated October 20, 1982 finding the petitioners guilty of the charges against
them and suspending them for one (1) academic year with a stern warning
that a commission of the same or another offense will be dealt with utmost
severity, effective as of this date and continuing until otherwise ordered by
this Court, thus allowing them to enroll, if so minded. 3

Both public and private respondents submitted their comments. Private

respondents prayed for the dismissal of the petition "for lack of factual and

30
legal basis and likewise [prayed] for the lifting of the temporary restraining
order dated November 16, 1982." 4 Public respondent Ramento, on the
other hand, through the Office of the Solicitor General, prayed for the
dismissal of the petition based on the following conclusion: "Consequently, it
is respectfully submitted that respondent Director of the MECS did not
commit any error, much less abused his discretion, when he affirmed the
decision of respondent University finding petitioners guilty of violations of the
provisions of the Manual of Regulations for Private Schools and the Revised
Student's Code of Discipline .and ordering their suspension for one (1)
academic school year. However, since said suspension has not been
enforced except only briefly, thereby enabling petitioners Leonero, Jr., Lucas
and Malabanan to finish their courses, and allowing petitioners Lee and
Jalos to continue their schooling, if they so desire, this proceeding is now
moot and academic. 5
With the submission of such comments considered as the answers of public
and private respondents, the case was ready for decision.
This petition may be considered moot and academic if viewed solely from the
fact that by virtue of the temporary restraining order issued by this Court
petitioners were allowed to enroll in the ensuing semester, with three of them
doing so and with the other two equally entitled to do so. Moreover, there is
the added circumstance of more than a year having passed since October
20, 1982 when respondent Ramento issued the challenged decision
suspending them for one year. Nonetheless, with its validity having been put
in issue, for being violative of the constitutional rights of freedom of
peaceable assembly and free speech, there is need to pass squarely on the
question raised.
This Court accordingly rules that respect for the constitutional rights of
peaceable assembly and free speech calls for the setting aside of the
decision of respondent Ramento, the penalty imposed being unduly severe.
It is true that petitioners held the rally at a place other than that specified in
the permit and continued it longer than the time allowed. Undeniably too,
they did disturb the classes and caused the work of the non-academic

personnel to be left undone. Such undesirable consequence could have

been avoided by their holding the assembly in the basketball court as
indicated in the permit. Nonetheless, suspending them for one year is out of
proportion to their misdeed. The petition must be granted and the decision of
respondent Ramento nullified, a much lesser penalty being appropriate.

1. As is quite clear from the opinion in Reyes v. Bagatsing, 6 the invocation

of the right to freedom of peaceable assembly carries with it the implication
that the right to free speech has likewise been disregarded. Both are
embraced in the concept of freedom of expression which is Identified with
the liberty to discuss publicly and truthfully, any matter of public interest
without censorship or punishment and which "is not to be limited, much less
denied, except on a showing ... of a clear and present danger of a
substantive evil that the state has a right to prevent." 7
2. In the above case, a permit was sought to hold a peaceful march and rally
from the Luneta public park to the gates of the united States Embassy,
hardly two blocks away, where in an open space of public property, a short
program would be held. Necessarily then, the question of the use of a public
park and of the streets leading to the United States Embassy was before this
Court. We held that streets and parks have immemorially been held in trust
for the use of the public and have been used for purposes of assembly to
communicate thoughts between citizens and to discuss public issues. 8
3. The situation here is different. The assembly was to be held not in a public
place but in private premises, property of respondent University. There is in
the Reyes opinion as part of the summary this relevant excerpt: "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." 9 Petitioners did seek such
consent. It was granted. According to the petition: "On August 27, 1982, by
virtue of a permit granted to them by the school administration, the Supreme

31
Student Council where your petitioners are among the officers, held a
General Assembly at the VMAS basketball court of the respondent
university." 10 There was an express admission in the Comment of private
respondent University as to a permit having been granted for petitioners to
hold a student assembly. 11 The specific question to be resolved then is
whether on the facts as disclosed resulting in the disciplinary action and the
penalty imposed, there was an infringement of the right to peaceable
assembly and its cognate right of free speech.
4. Petitioners invoke their rights to peaceable assembly and free speech.
They are entitled to do so. They enjoy like the rest of the citizens the
freedom to express their views and communicate their thoughts to those
disposed to listen in gatherings such as was held in this case. They do not,
to borrow from the opinion of Justice Fortas in Tinker v. Des Moines
Community School District, 12 "shed their constitutional rights to freedom of
speech or expression at the schoolhouse gate." 13 While, therefore, the
authority of educational institutions over the conduct of students must be
recognized, it cannot go so far as to be violative of constitutional safeguards.
On a more specific level there is persuasive force to this formulation in the
Fortas opinion: "The principal use to which the schools are dedicated is to
accommodate students during prescribed hours for the purpose of certain
types of activities. Among those activities is personal intercommunication
among the students. This is not only an inevitable part of the process of
attending school; it is also an important part of the educational process. A
student's rights, therefore, do not embrace merely the classroom hours.
When he is in the cafeteria, or on the playing field, or on the campus during
the authorized hours, he may express his opinions, even on controversial
subjects like the conflict in Vietnam, if he does so without 'materially and
substantially interfer[ing] with the requirements of appropriate discipline in
the operation of the school' and without colliding with the rights of others. ...
But conduct by the student, in class or out of it, which for any reason
whether it stems from time, place, or type of behavior materially disrupts
classwork or involves substantial disorder or invasion of the rights of others
is, of course, not immunized by the constitutional guarantee of freedom of
speech." 14

5. As tested by such a standard, what is the verdict on the complaint of

petitioners that there was a disregard of their constitutional rights to
peaceable assembly and free speech. It must be in their favor, but subject to
qualification in view of their continuing their demonstration in a place other
than that specified in the permit for a longer period and their making use of
megaphones therein, resulting in the disruption of classes and the stoppage
of work by the non-academic personnel in the vicinity of such assembly.
6. Objection is made by private respondents to the tenor of the speeches by
the student leaders. That there would be a vigorous presentation of views
opposed to the proposed merger of the Institute of Animal Science with the
Institute of Agriculture was to be expected. There was no concealment of the
fact that they were against such a move as it confronted them with a serious
problem (iisang malaking suliranin.") 15 They believed that such a merger
would result in the increase in tuition fees, an additional headache for their
parents ("isa na naman sakit sa ulo ng ating mga magulang."). 16 If in the
course of such demonstration, with an enthusiastic audience goading them
on, utterances, extremely critical, at times even vitriolic, were let loose, that
is quite understandable. Student leaders are hardly the timid, diffident types.
They are likely to be assertive and dogmatic. They would be ineffective if
during a rally they speak in the guarded and judicious language of the
academe. At any rate, even a sympathetic audience is not disposed to
accord full credence to their fiery exhortations. They take into account the
excitement of the occasion, the propensity of speakers to exaggerate, the
exuberance of youth, They may give the speakers the benefit of their
applause, but with the activity taking place in the school premises and during
the daytime, no clear and present danger of public disorder is discernible.
This is without prejudice to the taking of disciplinary action for conduct,
which, to borrow from Tinker, "materially disrupts classwork or involves
substantial disorder or invasion of the rights of others."
7. Nor is this a novel approach to the issue raised by petitioners that they
were denied the right to peaceable assembly. In a 1907 decision, United
States v. Apurado, 17 the facts disclosed that shortly before the municipal
council of San Carlos, Occidental Negros, started its session, some five

32
hundred residents of the municipality assembled near the municipal building,
and, upon the opening of the session, a substantial number of such persons
barged into the council chamber, demanding that the municipal treasurer, the
municipal secretary, and the chief of police be dismissed, submitting at the
same time the proposed substitutes. The municipal council gave its
conformity. Such individuals were wholly unarmed except that a few carried
canes; the crowd was fairly orderly and well-behaved except in so far as their
pressing into the council chamber during a session of that body could be
called disorder and misbehavior. It turned out that the movement had its
origin in religious differences. The defendant Filomeno Apurado and many
other participants were indicted and convicted of sedition in that they
allegedly prevented the municipal government from freely exercising its
duties. On appeal, the Supreme Court reversed. Justice Carson, who
penned the opinion, correctly pointed out that "if the prosecution be
permitted to seize upon every instance of such disorderly conduct by
individual members of a crowd as an excuse to characterize the assembly as
a seditious and tumultuous rising against the authorities, then the right to
assemble and to petition for redress of grievances would become a delusion
and a snare and the attempt to exercise it on the most righteous occasion
and in the most peaceable manner would expose all those who took part
therein to the severest form of punishment, if the purposes which they
sought to attain did not happen to be pleasing to the prosecuting authorities."
18 The principle to be followed is enunciated thus: "If instances of disorderly
conduct occur on such occasions, the guilty individuals should be sought out
and punished therefor, but the utmost discretion must be exercised in
drawing the line between disorderly and seditious conduct and between an
essentially peaceable assembly and a tumultuous uprising." 19 A careful
reading of this decision is in order before private respondents attach, as they
did in their comments, a subversive character to the rally held by the
students under the leadership of petitioners.
8. It does not follow, however, that petitioners can be totally absolved for the
events that transpired. Admittedly, there was a violation of the terms of the
permit. The rally was held at a place other than that specified, in the second
floor lobby, rather than the basketball court, of the VMAS building of the

University. Moreover, it was continued longer than the period allowed.

According to the decision of respondent Ramento, the "concerted activity
[referring to such assembly] went on until 5:30 p. m. 20 Private respondents
could thus, take disciplinary action. On those facts, however, an admonition,
even a censure-certainly not a suspension-could be the appropriate penalty.
Private respondents could and did take umbrage at the fact that in view of
such infraction considering the places where and the time when the
demonstration took place-there was a disruption of the classes and stoppage
of work of the non-academic personnel. They would not be unjustified then if
they did take a much more serious view of the matter. Even then a one-year
period of suspension is much too severe. While the discretion of both
respondent University and respondent Ramento is recognized, the rule of
reason, the dictate of fairness calls for a much lesser penalty. If the concept
of proportionality between the offense connoted and the sanction imposed is
not followed, an element of arbitrariness intrudes. That would give rise to a
due process question. To avoid this constitutional objection, it is the holding
of this Court that a one-week suspension would be punishment enough.
9. One last matter. The objection was raised that petitioners failed to exhaust
administrative remedies. That is true, but hardly decisive. Here, a purely
legal question is presented. Such being the case, especially so where a
decision on a question of law is imperatively called for, and time being of the
essence, this Court has invariably viewed the issue as ripe for adjudication.
What cannot be too sufficiently stressed is that the constitutional rights to
peaceable assembly and free speech are invoked by petitioners. Moreover,
there was, and very likely there will continue to be in the future, militancy and
assertiveness of students on issues that they consider of great importance,
whether concerning their welfare or the general public. That they have a right
to do as citizens entitled to all the protection in the Bill of Rights.
10. It would be most appropriate then, as was done in the case of Reyes v.
Bagatsing, 21 for this Court to lay down the principles for the guidance of
school authorities and students alike. The rights to peaceable assembly and
free speech are guaranteed students of educational institutions. Necessarily,
their exercise to discuss matters affecting their welfare or involving public

33
interest is not to be subjected to previous restraint or subsequent
punishment unless there be a showing of a clear and present danger to a
substantive evil that the state, has a right to present. As a corollary, the
utmost leeway and scope is accorded the content of the placards displayed
or utterances made. The peaceable character of an assembly could be lost,
however, by an advocacy of disorder under the name of dissent, whatever
grievances that may be aired being susceptible to correction through the
ways of the law. If the assembly is to be held in school premises, permit must
be sought from its school authorities, who are devoid of the power to deny
such request arbitrarily or unreasonably. In granting such permit, there may
be conditions as to the time and place of the assembly to avoid disruption of
classes or stoppage of work of the non-academic personnel. Even if,
however, there be violations of its terms, the penalty incurred should not be
disproportionate to the offense.

WHEREFORE, the petition is granted. The decision dated October 20, 1982
of respondent Ramento imposing a one-year suspension is nullified and set
aside. The temporary restraining order issued by this Court in the resolution
of November 18, 1982 is made permanent. As of that date, petitioners had
been suspended for more than a week. In that sense, the one-week penalty
had been served. No costs.
Teehankee, Makasiar, Guerrero, Abad Santos, Melencio-Herrera, Plana,
Escolin, Relova, Gutierrez, Jr., and De la Fuente, JJ., concur.
Aquino, Concepcion, Jr., and De Castro, JJ., took no part.

34
Cruz, Cristeta Ramos, Adelaida Ramos, Mary Grace Gonzales, Michael
Torres, Rendo Sabusap, Precious Balute, Roxanne Magboo, Ernie Bautista,
Joseph de Jesus, Margarita Escober, Djoannalyn Janier, Magdalena Sellote,
Manny Quiazon, Ericson Dizon, Nenita Cruzat, Leonardo De los Reyes,
Pedrito Fadrigon, Petitioners,
vs.
EDUARDO ERMITA, in his official capacity as The Executive Secretary and
in his personal capacity, ANGELO REYES, in his official capacity as
Secretary of the Interior and Local Governments, ARTURO LOMIBAO, in his
official capacity as the Chief, Philippine National Police, VIDAL QUEROL, in
his official capacity as the Chief, National Capital Regional Police Office
(NCRPO), PEDRO BULAONG, in his official capacity as the Chief, Manila
Police District (MPD) AND ALL OTHER PUBLIC OFFICERS GARCIA, and
AND PRIVATE INDIVIDUALS ACTING UNDER THEIR CONTROL,
SUPERVISION AND INSTRUCTIONS, Respondents.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 169838

April 25, 2006

BAYAN, KARAPATAN, KILUSANG MAGBUBUKID NG PILIPINAS (KMP),

GABRIELA, Fr. Jose Dizon, Renato Constantino, Jr., Froyel Yaneza, and
Fahima Tajar, Petitioners,
vs.
EDUARDO ERMITA, in his capacity as Executive Secretary, Manila City
Mayor LITO ATIENZA, Chief of the Philippine National Police, Gen. ARTURO
M. LOMIBAO, NCRPO Chief Maj. Gen. VIDAL QUEROL, and Western
Police District Chief Gen. PEDRO BULAONG, Respondents.

x---------------------------------x
G.R. No. 169881

April 25, 2006

KILUSANG MAYO UNO, represented by its Chairperson ELMER C. LABOG

and Secretary General JOEL MAGLUNSOD, NATIONAL FEDERATION OF
LABOR UNIONS-KILUSANG MAYO UNO (NAFLU-KMU), represented by its
National President, JOSELITO V. USTAREZ, ANTONIO C. PASCUAL,
SALVADOR T. CARRANZA, GILDA SUMILANG, FRANCISCO LASTRELLA,
and ROQUE M. TAN, Petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY, PNP DIRECTOR GENRAL
ARTURO LOMIBAO, HONORABLE MAYOR LITO ATIENZA, and PNP MPD
CHIEF SUPT. PEDRO BULAONG, Respondents.
DECISION
AZCUNA, J.:

x---------------------------------x
G.R. No. 169848

Petitioners come in three groups.

April 25, 2006

Jess Del Prado, Wilson Fortaleza, Leody de Guzman, Pedro Pinlac,

Carmelita Morante, Rasti Delizo, Paul Bangay, Marie Jo Ocampo, Lilia dela

The first petitioners, Bayan, et al., in G.R. No. 169838,1 allege that they are
citizens and taxpayers of the Philippines and that their rights as

35
organizations and individuals were violated when the rally they participated
in on October 6, 2005 was violently dispersed by policemen implementing
Batas Pambansa (B.P.) No. 880.

CPR. They seek to stop violent dispersals of rallies under the "no permit, no
rally" policy and the CPR policy recently announced.
B.P. No. 880, "The Public Assembly Act of 1985," provides:

The second group consists of 26 individual petitioners, Jess del Prado, et al.,
in G.R. No. 169848,2 who allege that they were injured, arrested and
detained when a peaceful mass action they held on September 26, 2005
was preempted and violently dispersed by the police. They further assert that
on October 5, 2005, a group they participated in marched to Malacaang to
protest issuances of the Palace which, they claim, put the country under an
"undeclared" martial rule, and the protest was likewise dispersed violently
and many among them were arrested and suffered injuries.
The third group, Kilusang Mayo Uno (KMU), et al., petitioners in G.R. No.
169881,3 allege that they conduct peaceful mass actions and that their rights
as organizations and those of their individual members as citizens,
specifically the right to peaceful assembly, are affected by Batas Pambansa
No. 880 and the policy of "Calibrated Preemptive Response" (CPR) being
followed to implement it.

Batas Pambansa Blg. 880

An Act Ensuring The Free Exercise By The People Of Their Right Peaceably
To Assemble And Petition The Government [And] For Other Purposes
Be it enacted by the Batasang Pambansa in session assembled:
Section 1. Title. This Act shall be known as "The Public Assembly Act of
1985."
Sec. 2. Declaration of policy. The constitutional right of the people
peaceably to assemble and petition the government for redress of
grievances is essential and vital to the strength and stability of the State. To
this end, the State shall ensure the free exercise of such right without
prejudice to the rights of others to life, liberty and equal protection of the law.
Sec. 3. Definition of terms. For purposes of this Act:

KMU, et al., claim that on October 4, 2005, a rally KMU co-sponsored was to
be conducted at the Mendiola bridge but police blocked them along C.M.
Recto and Lepanto Streets and forcibly dispersed them, causing injuries to
several of their members. They further allege that on October 6, 2005, a
multi-sectoral rally which KMU also co-sponsored was scheduled to proceed
along Espaa Avenue in front of the University of Santo Tomas and going
towards Mendiola bridge. Police officers blocked them along Morayta Street
and prevented them from proceeding further. They were then forcibly
dispersed, causing injuries on one of them.4 Three other rallyists were
arrested.
All petitioners assail Batas Pambansa No. 880, some of them in toto and
others only Sections 4, 5, 6, 12, 13(a), and 14(a), as well as the policy of

(a) "Public assembly" means any rally, demonstration, march, parade,

procession or any other form of mass or concerted action held in a public
place for the purpose of presenting a lawful cause; or expressing an opinion
to the general public on any particular issue; or protesting or influencing any
state of affairs whether political, economic or social; or petitioning the
government for redress of grievances.

The processions, rallies, parades, demonstrations, public meetings and

assemblages for religious purposes shall be governed by local ordinances;

36
Provided, however, That the declaration of policy as provided in Section 2 of
this Act shall be faithfully observed.
The definition herein contained shall not include picketing and other
concerted action in strike areas by workers and employees resulting from a
labor dispute as defined by the Labor Code, its implementing rules and
regulations, and by the Batas Pambansa Bilang 227.
(b) "Public place" shall include any highway, boulevard, avenue, road, street,
bridge or other thoroughfare, park, plaza, square, and/or any open space of
public ownership where the people are allowed access.
(c) "Maximum tolerance" means the highest degree of restraint that the
military, police and other peace keeping authorities shall observe during a
public assembly or in the dispersal of the same.
(d) "Modification of a permit" shall include the change of the place and time
of the public assembly, rerouting of the parade or street march, the volume of
loud-speakers or sound system and similar changes.
Sec. 4. Permit when required and when not required. A written permit shall
be required for any person or persons to organize and hold a public
assembly in a public place. However, no permit shall be required if the public
assembly shall be done or made in a freedom park duly established by law
or ordinance or in private property, in which case only the consent of the
owner or the one entitled to its legal possession is required, or in the campus
of a government-owned and operated educational institution which shall be
subject to the rules and regulations of said educational institution. Political
meetings or rallies held during any election campaign period as provided for
by law are not covered by this Act.
Sec. 5. Application requirements. All applications for a permit shall comply
with the following guidelines:

(a) The applications shall be in writing and shall include the names of the
leaders or organizers; the purpose of such public assembly; the date, time
and duration thereof, and place or streets to be used for the intended activity;
and the probable number of persons participating, the transport and the
public address systems to be used.

(b) The application shall incorporate the duty and responsibility of the
applicant under Section 8 hereof.
(c) The application shall be filed with the office of the mayor of the city or
municipality in whose jurisdiction the intended activity is to be held, at least
five (5) working days before the scheduled public assembly.
(d) Upon receipt of the application, which must be duly acknowledged in
writing, the office of the city or municipal mayor shall cause the same to
immediately be posted at a conspicuous place in the city or municipal
building.
Sec. 6. Action to be taken on the application.
(a) It shall be the duty of the mayor or any official acting in his behalf to issue
or grant a permit unless there is clear and convincing evidence that the
public assembly will create a clear and present danger to public order, public
safety, public convenience, public morals or public health.
(b) The mayor or any official acting in his behalf shall act on the application
within two (2) working days from the date the application was filed, failing
which, the permit shall be deemed granted. Should for any reason the mayor
or any official acting in his behalf refuse to accept the application for a
permit, said application shall be posted by the applicant on the premises of
the office of the mayor and shall be deemed to have been filed.

37
(c) If the mayor is of the view that there is imminent and grave danger of a
substantive evil warranting the denial or modification of the permit, he shall
immediately inform the applicant who must be heard on the matter.
(d) The action on the permit shall be in writing and served on the applica[nt]
within twenty-four hours.
(e) If the mayor or any official acting in his behalf denies the application or
modifies the terms thereof in his permit, the applicant may contest the
decision in an appropriate court of law.

(f) In case suit is brought before the Metropolitan Trial Court, the Municipal
Trial Court, the Municipal Circuit Trial Court, the Regional Trial Court, or the
Intermediate Appellate court, its decisions may be appealed to the
appropriate court within forty-eight (48) hours after receipt of the same. No
appeal bond and record on appeal shall be required. A decision granting
such permit or modifying it in terms satisfactory to the applicant shall be
immediately executory.
(g) All cases filed in court under this section shall be decided within twentyfour (24) hours from date of filing. Cases filed hereunder shall be
immediately endorsed to the executive judge for disposition or, in his
absence, to the next in rank.

to another direction so that there will be no serious or undue interference

with the free flow of commerce and trade.
Sec. 8. Responsibility of applicant. It shall be the duty and responsibility of
the leaders and organizers of a public assembly to take all reasonable
measures and steps to the end that the intended public assembly shall be
conducted peacefully in accordance with the terms of the permit. These shall
include but not be limited to the following:
(a) To inform the participants of their responsibility under the permit;|
avvphi|.net
(b) To police the ranks of the demonstrators in order to prevent nondemonstrators from disrupting the lawful activities of the public assembly;
(c) To confer with local government officials concerned and law enforcers to
the end that the public assembly may be held peacefully;
(d) To see to it that the public assembly undertaken shall not go beyond the
time stated in the permit; and

(e) To take positive steps that demonstrators do not molest any person or do
any act unduly interfering with the rights of other persons not participating in
the public assembly.

(h) In all cases, any decision may be appealed to the Supreme Court.
(i) Telegraphic appeals to be followed by formal appeals are hereby allowed.
Sec. 7. Use of Public throroughfare. Should the proposed public assembly
involve the use, for an appreciable length of time, of any public highway,
boulevard, avenue, road or street, the mayor or any official acting in his
behalf may, to prevent grave public inconvenience, designate the route
thereof which is convenient to the participants or reroute the vehicular traffic

Sec. 9. Non-interference by law enforcement authorities. Law enforcement

agencies shall not interfere with the holding of a public assembly. However,
to adequately ensure public safety, a law enforcement contingent under the
command of a responsible police officer may be detailed and stationed in a
place at least one hundred (100) meters away from the area of activity ready
to maintain peace and order at all times.

38
Sec. 10. Police assistance when requested. It shall be imperative for law
enforcement agencies, when their assistance is requested by the leaders or
organizers, to perform their duties always mindful that their responsibility to
provide proper protection to those exercising their right peaceably to
assemble and the freedom of expression is primordial. Towards this end, law
enforcement agencies shall observe the following guidelines:
(a) Members of the law enforcement contingent who deal with the
demonstrators shall be in complete uniform with their nameplates and units
to which they belong displayed prominently on the front and dorsal parts of
their uniform and must observe the policy of "maximum tolerance" as herein
defined;

enforcement contingent shall audibly warn the participants that if the

disturbance persists, the public assembly will be dispersed;
(c) If the violence or disturbance prevailing as stated in the preceding
subparagraph should not stop or abate, the ranking officer of the law
enforcement contingent shall audibly issue a warning to the participants of
the public assembly, and after allowing a reasonable period of time to lapse,
shall immediately order it to forthwith disperse;
(d) No arrest of any leader, organizer or participant shall also be made during
the public assembly unless he violates during the assembly a law, statute,
ordinance or any provision of this Act. Such arrest shall be governed by
Article 125 of the Revised Penal Code, as amended;

(b) The members of the law enforcement contingent shall not carry any kind
of firearms but may be equipped with baton or riot sticks, shields, crash
helmets with visor, gas masks, boots or ankle high shoes with shin guards;

(e) Isolated acts or incidents of disorder or breach of the peace during the
public assembly shall not constitute a ground for dispersal.

(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device
shall not be used unless the public assembly is attended by actual violence
or serious threats of violence, or deliberate destruction of property.

Sec. 12. Dispersal of public assembly without permit. When the public
assembly is held without a permit where a permit is required, the said public
assembly may be peacefully dispersed.

Sec. 11. Dispersal of public assembly with permit. No public assembly with
a permit shall be dispersed. However, when an assembly becomes violent,
the police may disperse such public assembly as follows:

Sec. 13. Prohibited acts. The following shall constitute violations of the Act:

(a) At the first sign of impending violence, the ranking officer of the law
enforcement contingent shall call the attention of the leaders of the public
assembly and ask the latter to prevent any possible disturbance;

(b) If actual violence starts to a point where rocks or other harmful objects
from the participants are thrown at the police or at the non-participants, or at
any property causing damage to such property, the ranking officer of the law

(a) The holding of any public assembly as defined in this Act by any leader or
organizer without having first secured that written permit where a permit is
required from the office concerned, or the use of such permit for such
purposes in any place other than those set out in said permit: Provided,
however, That no person can be punished or held criminally liable for
participating in or attending an otherwise peaceful assembly;
(b) Arbitrary and unjustified denial or modification of a permit in violation of
the provisions of this Act by the mayor or any other official acting in his
behalf;

39
(c) The unjustified and arbitrary refusal to accept or acknowledge receipt of
the application for a permit by the mayor or any official acting in his behalf;

(b) violations of subparagraphs (b), (c), (d), (e), (f), and item 4, subparagraph
(g) shall be punished by imprisonment of six months and one day to six
years;

(d) Obstructing, impeding, disrupting or otherwise denying the exercise of the

right to peaceful assembly;

(c) violation of item 1, subparagraph (g) shall be punished by imprisonment

of six months and one day to six years without prejudice to prosecution
under Presidential Decree No. 1866;

(e) The unnecessary firing of firearms by a member of any law enforcement

agency or any person to disperse the public assembly;

(d) violations of item 2, item 3, or item 5 of subparagraph (g) shall be

punished by imprisonment of one day to thirty days.

(f) Acts in violation of Section 10 hereof;

(g) Acts described hereunder if committed within one hundred (100) meters
from the area of activity of the public assembly or on the occasion thereof:
1. the carrying of a deadly or offensive weapon or device such as firearm,
pillbox, bomb, and the like;

Sec. 15. Freedom parks. Every city and municipality in the country shall
within six months after the effectivity of this Act establish or designate at
least one suitable "freedom park" or mall in their respective jurisdictions
which, as far as practicable, shall be centrally located within the poblacion
where demonstrations and meetings may be held at any time without the
need of any prior permit.

2. the carrying of a bladed weapon and the like;

3. the malicious burning of any object in the streets or thoroughfares;

In the cities and municipalities of Metropolitan Manila, the respective mayors

shall establish the freedom parks within the period of six months from the
effectivity this Act.

4. the carrying of firearms by members of the law enforcement unit;

5. the interfering with or intentionally disturbing the holding of a public
assembly by the use of a motor vehicle, its horns and loud sound systems.
Sec. 14. Penalties. Any person found guilty and convicted of any of the
prohibited acts defined in the immediately preceding section shall be
punished as follows:
(a) violation of subparagraph (a) shall be punished by imprisonment of one
month and one day to six months;

Sec. 16. Constitutionality. Should any provision of this Act be declared

invalid or unconstitutional, the validity or constitutionality of the other
provisions shall not be affected thereby.
Sec. 17. Repealing clause. All laws, decrees, letters of instructions,
resolutions, orders, ordinances or parts thereof which are inconsistent with
the provisions of this Act are hereby repealed, amended, or modified
accordingly.
Sec. 18. Effectivity. This Act shall take effect upon its approval.

40
Approved, October 22, 1985.
CPR, on the other hand, is a policy set forth in a press release by
Malacaang dated September 21, 2005, shown in Annex "A" to the Petition
in G.R. No. 169848, thus:
Malacaang Official
Manila, Philippines NEWS

We appeal to the detractors of the government to engage in lawful and

peaceful conduct befitting of a democratic society.
The Presidents call for unity and reconciliation stands, based on the rule
of law.
Petitioners Bayan, et al., contend that Batas Pambansa No. 880 is clearly a
violation of the Constitution and the International Covenant on Civil and
Political Rights and other human rights treaties of which the Philippines is a
signatory.5

Release No. 2 September 21, 2005

STATEMENT OF EXECUTIVE SECRETARY EDUARDO ERMITA
On Unlawful Mass Actions
In view of intelligence reports pointing to credible plans of anti-government
groups to inflame the political situation, sow disorder and incite people
against the duly constituted authorities, we have instructed the PNP as well
as the local government units to strictly enforce a "no permit, no rally" policy,
disperse groups that run afoul of this standard and arrest all persons
violating the laws of the land as well as ordinances on the proper conduct of
mass actions and demonstrations.

They argue that B.P. No. 880 requires a permit before one can stage a public
assembly regardless of the presence or absence of a clear and present
danger. It also curtails the choice of venue and is thus repugnant to the
freedom of expression clause as the time and place of a public assembly
form part of the message for which the expression is sought. Furthermore, it
is not content-neutral as it does not apply to mass actions in support of the
government. The words "lawful cause," "opinion," "protesting or influencing"
suggest the exposition of some cause not espoused by the government.
Also, the phrase "maximum tolerance" shows that the law applies to
assemblies against the government because they are being tolerated. As a
content-based legislation, it cannot pass the strict scrutiny test.

The rule of calibrated preemptive response is now in force, in lieu of

maximum tolerance. The authorities will not stand aside while those with ill
intent are herding a witting or unwitting mass of people and inciting them into
actions that are inimical to public order, and the peace of mind of the national
community.

Petitioners Jess del Prado, et al., in turn, argue that B.P. No. 880 is
unconstitutional as it is a curtailment of the right to peacefully assemble and
petition for redress of grievances because it puts a condition for the valid
exercise of that right. It also characterizes public assemblies without a permit
as illegal and penalizes them and allows their dispersal. Thus, its provisions
are not mere regulations but are actually prohibitions.

Unlawful mass actions will be dispersed. The majority of law-abiding

citizens have the right to be protected by a vigilant and proactive
government.

Furthermore, the law delegates powers to the Mayor without providing clear
standards. The two standards stated in the laws (clear and present danger
and imminent and grave danger) are inconsistent.

41
Regarding the CPR policy, it is void for being an ultra vires act that alters the
standard of maximum tolerance set forth in B.P. No. 880, aside from being
void for being vague and for lack of publication.
Finally, petitioners KMU, et al., argue that the Constitution sets no limits on
the right to assembly and therefore B.P. No. 880 cannot put the prior
requirement of securing a permit. And even assuming that the legislature can
set limits to this right, the limits provided are unreasonable: First, allowing the
Mayor to deny the permit on clear and convincing evidence of a clear and
present danger is too comprehensive. Second, the five-day requirement to
apply for a permit is too long as certain events require instant public
assembly, otherwise interest on the issue would possibly wane.
As to the CPR policy, they argue that it is preemptive, that the government
takes action even before the rallyists can perform their act, and that no law,
ordinance or executive order supports the policy. Furthermore, it contravenes
the maximum tolerance policy of B.P. No. 880 and violates the Constitution
as it causes a chilling effect on the exercise by the people of the right to
peaceably assemble.
Respondents in G.R. No. 169838 are Eduardo Ermita, as Executive
Secretary, Manila City Mayor Lito Atienza, Chief, of the Philippine National
Police (PNP) Gen. Arturo Lomibao, National Capital Region Police Office
(NCRPO) Chief, PNP Maj. Gen. Vidal Querol, and Manila Police District
(MPD) Chief Gen. Pedro Bulaong.
Respondents in G.R. No. 169848 are Eduardo Ermita as Executive
Secretary and in his personal capacity; Angelo Reyes, as Secretary of the
Interior and Local Governments; Arturo Lomibao, as Chief Vidal Querol, as
Chief, NCRPO; Pedro Bulaong, as Chief, MPD, and all other public officers
and private individuals acting under their control, supervision and instruction.
Respondents in G.R. No. 169881 are the Honorable Executive Secretary,
PNP Director General Arturo Lomibao, the Honorable Mayor Joselito
Atienza, and PNP MPD Chief Pedro Bulaong.

Respondents argue that:

1. Petitioners have no standing because they have not presented evidence
that they had been "injured, arrested or detained because of the CPR," and
that "those arrested stand to be charged with violating Batas Pambansa
[No.] 880 and other offenses."

2. Neither B.P. No. 880 nor CPR is void on its face. Petitioners cannot
honestly claim that the time, place and manner regulation embodied in B.P.
No. 880 violates the three-pronged test for such a measure, to wit: (a) B.P.
No. 880 is content-neutral, i.e., it has no reference to content of regulated
speech; (b) B.P. No. 880 is narrowly tailored to serve a significant
governmental interest, i.e., the interest cannot be equally well served by a
means that is less intrusive of free speech interests; and (c) B.P. No. 880
leaves open alternative channels for communication of the information.6
3. B.P. No. 880 is content-neutral as seen from the text of the law. Section 5
requires the statement of the public assemblys time, place and manner of
conduct. It entails traffic re-routing to prevent grave public inconvenience and
serious or undue interference in the free flow of commerce and trade.
Furthermore, nothing in B.P. No. 880 authorizes the denial of a permit on the
basis of a rallys program content or the statements of the speakers therein,
except under the constitutional precept of the "clear and present danger
test." The status of B.P. No. 880 as a content-neutral regulation has been
recognized in Osmea v. Comelec.7
4. Adiong v. Comelec8 held that B.P. No. 880 is a content-neutral regulation
of the time, place and manner of holding public assemblies and the law
passes the test for such regulation, namely, these regulations need only a
substantial governmental interest to support them.
5. Sangalang v. Intermediate Appellate Court9 held that a local chief
executive has the authority to exercise police power to meet "the demands of

42
the common good in terms of traffic decongestion and public convenience."
Furthermore, the discretion given to the mayor is narrowly circumscribed by
Sections 5 (d), and 6 (a), (b), (c), (d), (e), 13 and 15 of the law.

1. On the constitutionality of Batas Pambansa No. 880, specifically Sections

4, 5, 6, 12 13(a) and 14(a) thereof, and Republic Act No. 7160:
(a) Are these content-neutral or content-based regulations?

6. The standards set forth in the law are not inconsistent. "Clear and
convincing evidence that the public assembly will create a clear and present
danger to public order, public safety, public convenience, public morals or
public health" and "imminent and grave danger of a substantive evil" both
express the meaning of the "clear and present danger test."10

(b) Are they void on grounds of overbreadth or vagueness?

(c) Do they constitute prior restraint?
(d) Are they undue delegations of powers to Mayors?

7. CPR is simply the responsible and judicious use of means allowed by

existing laws and ordinances to protect public interest and restore public
order. Thus, it is not accurate to call it a new rule but rather it is a more proactive and dynamic enforcement of existing laws, regulations and ordinances
to prevent chaos in the streets. It does not replace the rule of maximum
tolerance in B.P. No. 880.

(e) Do they violate international human rights treaties and the Universal
Declaration of Human Rights?
2. On the constitutionality and legality of the policy of Calibrated Preemptive
Response (CPR):
(a) Is the policy void on its face or due to vagueness?

Respondent Mayor Joselito Atienza, for his part, submitted in his Comment
that the petition in G.R. No. 169838 should be dismissed on the ground that
Republic Act No. 7160 gives the Mayor power to deny a permit
independently of B.P. No. 880; that his denials of permits were under the
"clear and present danger" rule as there was a clamor to stop rallies that
disrupt the economy and to protect the lives of other people; that J. B. L.
Reyes v. Bagatsing,11 Primicias v. Fugoso,12 and Jacinto v. CA,13 have
affirmed the constitutionality of requiring a permit; that the permit is for the
use of a public place and not for the exercise of rights; and that B.P. No. 880
is not a content-based regulation because it covers all rallies.
The petitions were ordered consolidated on February 14, 2006. After the
submission of all the Comments, the Court set the cases for oral arguments
on April 4, 2006,14 stating the principal issues, as follows:

(b) Is it void for lack of publication?

(c) Is the policy of CPR void as applied to the rallies of September 26 and
October 4, 5 and 6, 2005?

During the course of the oral arguments, the following developments took
place and were approved and/or noted by the Court:
1. Petitioners, in the interest of a speedy resolution of the petitions, withdrew
the portions of their petitions raising factual issues, particularly those raising
the issue of whether B.P. No. 880 and/or CPR is void as applied to the rallies
of September 20, October 4, 5 and 6, 2005.

43
2. The Solicitor General agreed with the observation of the Chief Justice that
CPR should no longer be used as a legal term inasmuch as, according to
respondents, it was merely a "catchword" intended to clarify what was
thought to be a misunderstanding of the maximum tolerance policy set forth
in B.P. No. 880 and that, as stated in the affidavit executed by Executive
Secretary Eduardo Ermita and submitted to the Ombudsman, it does not
replace B.P. No. 880 and the maximum tolerance policy embodied in that
law.
The Court will now proceed to address the principal issues, taking into
account the foregoing developments.
Petitioners standing cannot be seriously challenged. Their right as citizens to
engage in peaceful assembly and exercise the right of petition, as
guaranteed by the Constitution, is directly affected by B.P. No. 880 which
requires a permit for all who would publicly assemble in the nations streets
and parks. They have, in fact, purposely engaged in public assemblies
without the required permits to press their claim that no such permit can be
validly required without violating the Constitutional guarantee. Respondents,
on the other hand, have challenged such action as contrary to law and
dispersed the public assemblies held without the permit.
Section 4 of Article III of the Constitution provides:
Sec. 4. No law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people peaceably to assemble
and petition the government for redress of grievances.
The first point to mark is that the right to peaceably assemble and petition for
redress of grievances is, together with freedom of speech, of expression,
and of the press, a right that enjoys primacy in the realm of constitutional
protection. For these rights constitute the very basis of a functional
democratic polity, without which all the other rights would be meaningless
and unprotected. As stated in Jacinto v. CA,15 the Court, as early as the

onset of this century, in U.S. v. Apurado,16 already upheld the right to

assembly and petition, as follows:
There is no question as to the petitioners rights to peaceful assembly to
petition the government for a redress of grievances and, for that matter, to
organize or form associations for purposes not contrary to law, as well as to
engage in peaceful concerted activities. These rights are guaranteed by no
less than the Constitution, particularly Sections 4 and 8 of the Bill of Rights,
Section 2(5) of Article IX, and Section 3 of Article XIII. Jurisprudence
abounds with hallowed pronouncements defending and promoting the
peoples exercise of these rights. As early as the onset of this century, this
Court in U.S. vs. Apurado, already upheld the right to assembly and petition
and even went as far as to acknowledge:
"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. But if the prosecution be permitted
to seize upon every instance of such disorderly conduct by individual
members of a crowd as an excuse to characterize the assembly as a
seditious and tumultuous rising against the authorities, then the right to
assemble and to petition for redress of grievances would become a delusion
and a snare and the attempt to exercise it on the most righteous occasion
and in the most peaceable manner would expose all those who took part
therein to the severest and most unmerited punishment, if the purposes
which they sought to attain did not happen to be pleasing to the prosecuting
authorities. If instances of disorderly conduct occur on such occasions, the
guilty individuals should be sought out and punished therefor, but the utmost
discretion must be exercised in drawing the line between disorderly and
seditious conduct and between an essentially peaceable assembly and a
tumultuous uprising."

44
Again, in Primicias v. Fugoso,17 the Court likewise sustained the primacy of
freedom of speech and to assembly and petition over comfort and
convenience in the use of streets and parks.
Next, however, it must be remembered that the right, while sacrosanct, is not
absolute. In Primicias, this Court said:
The right to freedom of speech, and to peacefully assemble and petition the
government for redress of grievances, are fundamental personal rights of the
people recognized and guaranteed by the constitutions of democratic
countries. But it is a settled principle growing out of the nature of wellordered civil societies that the exercise of those rights is not absolute for it
may be so regulated that it shall not be injurious to the equal enjoyment of
others having equal rights, nor injurious to the rights of the community or
society. The power to regulate the exercise of such and other constitutional
rights is termed the sovereign "police power," which is the power to prescribe
regulations, to promote the health, morals, peace, education, good order or
safety, and general welfare of the people. This sovereign police power is
exercised by the government through its legislative branch by the enactment
of laws regulating those and other constitutional and civil rights, and it may
be delegated to political subdivisions, such as towns, municipalities and
cities by authorizing their legislative bodies called municipal and city councils
to enact ordinances for the purpose.18
Reyes v. Bagatsing19 further expounded on the right and its limits, as
follows:
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." 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. There is to be then no previous restraint on the

communication of views or subsequent liability whether in libel suits,

prosecution for sedition, or action for damages, or contempt proceedings
unless there be a "clear and present danger of a substantive evil that [the
State] has a right to prevent." Freedom of assembly connotes the right of the
people to meet peaceably for consultation and discussion of matters of
public concern. It is entitled to be accorded the utmost deference and
respect. It is not to be limited, much less denied, except on a showing, as is
the case with freedom of expression, of a clear and present danger of a
substantive evil that the state has a right to prevent. Even prior to the 1935
Constitution, Justice Malcolm had occasion to stress that it is a necessary
consequence of our republican institutions and complements the right of free
speech. To paraphrase the opinion of Justice Rutledge, speaking for the
majority of the American Supreme Court in Thomas v. Collins, it was not by
accident or coincidence that the rights to freedom of speech and of the press
were coupled in a single guarantee with 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. In every case, therefore, where
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.
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." What was rightfully stressed is the

45
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 nonpeaceful 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: "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." 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 ones 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.
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:
"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 must not, in the guise of
regulation, be abridged or denied." The above excerpt was quoted with
approval in Primicias v. Fugoso. Primicias made explicit what was implicit in
Municipality of Cavite v. Rojas, 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," 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 proposed march and rally starting from a public park 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 blocks 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 v.
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 be permitted unless a special
license therefor shall first be obtained 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

46
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, * * *. "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."
xxx
6. x x x 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." There could be danger
to public peace and safety if such a gathering were marked by turbulence.
That would deprive it of its peaceful character. Even then, only the guilty
parties should be held accountable. It is true that the licensing official, here
respondent Mayor, is not devoid of discretion in determining whether or not a
permit would be granted. It is not, however, unfettered discretion. While
prudence requires that there be a realistic appraisal not of what may possibly
occur but of what may probably occur, given all the relevant circumstances,
still the assumption especially so where the assembly is scheduled for a

specific public place is that the permit must be for the assembly being held
there. The exercise of such a right, in the language of Justice Roberts,
speaking for the American Supreme Court, is not to be "abridged on the plea
that it may be exercised in some other place."
xxx
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, they 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. x x x.

B.P. No. 880 was enacted after this Court rendered its decision in Reyes.
The provisions of B.P. No. 880 practically codify the ruling in Reyes:

47
Reyes v. Bagatsing
(G.R. No. L-65366, November 9, 1983,
125 SCRA 553, 569)
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, they can have recourse to the proper judicial authority

(a) The applications shall be in writing and shall include the names of the
leaders or organizers; the purpose of such public assembly; the date, time
and duration thereof, and place or streets to be used for the intended activity;
and the probable number of persons participating, the transport and the
public address systems to be used.
(b) The application shall incorporate the duty and responsibility of applicant
under Section 8 hereof.
(c) The application shall be filed with the office of the mayor of the city or
municipality in whose jurisdiction the intended activity is to be held, at least
five (5) working days before the scheduled public assembly.
(d) Upon receipt of the application, which must be duly acknowledged in
writing, the office of the city or municipal mayor shall cause the same to
immediately be posted at a conspicuous place in the city or municipal
building.

B.P. No. 880

Sec. 6. Action to be taken on the application.

Sec. 4. Permit when required and when not required.-- A written permit shall
be required for any person or persons to organize and hold a public
assembly in a public place. However, no permit shall be required if the public
assembly shall be done or made in a freedom park duly established by law
or ordinance or in private property, in which case only the consent of the
owner or the one entitled to its legal possession is required, or in the campus
of a government-owned and operated educational institution which shall be
subject to the rules and regulations of said educational institution. Political
meetings or rallies held during any election campaign period as provided for
by law are not covered by this Act.

(a) It shall be the duty of the mayor or any official acting in his behalf to issue
or grant a permit unless there is clear and convincing evidence that the
public assembly will create a clear and present danger to public order, public
safety, public convenience, public morals or public health.

Sec. 5. Application requirements.-- All applications for a permit shall comply

with the following guidelines:

(b) The mayor or any official acting in his behalf shall act on the application
within two (2) working days from the date the application was filed, failing
which, the permit shall be deemed granted. Should for any reason the mayor
or any official acting in his behalf refuse to accept the application for a
permit, said application shall be posted by the applicant on the premises of
the office of the mayor and shall be deemed to have been filed.

48
(c) If the mayor is of the view that there is imminent and grave danger of a
substantive evil warranting the denial or modification of the permit, he shall
immediately inform the applicant who must be heard on the matter.
(d) The action on the permit shall be in writing and served on the applica[nt]
within twenty-four hours.

(e) If the mayor or any official acting in his behalf denies the application or
modifies the terms thereof in his permit, the applicant may contest the
decision in an appropriate court of law.
(f) In case suit is brought before the Metropolitan Trial Court, the Municipal
Trial Court, the Municipal Circuit Trial Court, the Regional Trial Court, or the
Intermediate Appellate Court, its decisions may be appealed to the
appropriate court within forty-eight (48) hours after receipt of the same. No
appeal bond and record on appeal shall be required. A decision granting
such permit or modifying it in terms satisfactory to the applicant shall be
immediately executory.
(g) All cases filed in court under this section shall be decided within twentyfour (24) hours from date of filing. Cases filed hereunder shall be
immediately endorsed to the executive judge for disposition or, in his
absence, to the next in rank.

A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to
all kinds of public assemblies22 that would use public places. The reference
to "lawful cause" does not make it content-based because assemblies really
have to be for lawful causes, otherwise they would not be "peaceable" and
entitled to protection. Neither are the words "opinion," "protesting" and
"influencing" in the definition of public assembly content based, since they
can refer to any subject. The words "petitioning the government for redress
of grievances" come from the wording of the Constitution, so its use cannot
be avoided. Finally, maximum tolerance is for the protection and benefit of all
rallyists and is independent of the content of the expressions in the rally.
Furthermore, the permit can only be denied on the ground of clear and
present danger to public order, public safety, public convenience, public
morals or public health. This is a recognized exception to the exercise of the
right even under the Universal Declaration of Human Rights and the
International Covenant on Civil and Political Rights, thus:
Universal Declaration of Human Rights
Article 20
1. Everyone has the right to freedom of peaceful assembly and association.
xxx
Article 29

(h) In all cases, any decision may be appealed to the Supreme Court.
(i) Telegraphic appeals to be followed by formal appeals are hereby allowed.

1. Everyone has duties to the community in which alone the free and full
development of his personality is possible.

It is very clear, therefore, that B.P. No. 880 is not an absolute ban of public
assemblies but a restriction that simply regulates the time, place and manner
of the assemblies. This was adverted to in Osmea v. Comelec,20 where the
Court referred to it as a "content-neutral" regulation of the time, place, and
manner of holding public assemblies.21

2. In the exercise of his rights and freedoms, everyone shall be subject only
to such limitations as are determined by law solely for the purpose of
securing due recognition and respect for the rights and freedoms of others
and of meeting the just requirements of morality, public order and the general
welfare in a democratic society.

49
3. These rights and freedoms may in no case be exercised contrary to the
purposes and principles of the United Nations.

concerted action held in a public place." So it does not cover any and all
kinds of gatherings.

The International Covenant on Civil and Political Rights

Neither is the law overbroad. It regulates the exercise of the right to peaceful
assembly and petition only to the extent needed to avoid a clear and present
danger of the substantive evils Congress has the right to prevent.

Article 19.
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall
include freedom to seek, receive and impart information and ideas of all
kinds, regardless of frontiers, either orally, in writing or in print, in the form of
art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries
with it special duties and responsibilities. It may therefore be subject to
certain restrictions, but these shall only be such as are provided by law and
are necessary:
(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or
of public health or morals.
Contrary to petitioners claim, the law is very clear and is nowhere vague in
its provisions. "Public" does not have to be defined. Its ordinary meaning is
well-known. Websters Dictionary defines it, thus:23
public, n, x x x 2a: an organized body of people x x x 3: a group of people
distinguished by common interests or characteristics x x x.
Not every expression of opinion is a public assembly. The law refers to "rally,
demonstration, march, parade, procession or any other form of mass or

There is, likewise, no prior restraint, since the content of the speech is not
relevant to the regulation.
As to the delegation of powers to the mayor, the law provides a precise and
sufficient standard the clear and present danger test stated in Sec. 6(a).
The reference to "imminent and grave danger of a substantive evil" in Sec.
6(c) substantially means the same thing and is not an inconsistent standard.
As to whether respondent Mayor has the same power independently under
Republic Act No. 716024 is thus not necessary to resolve in these
proceedings, and was not pursued by the parties in their arguments.
Finally, for those who cannot wait, Section 15 of the law provides for an
alternative forum through the creation of freedom parks where no prior
permit is needed for peaceful assembly and petition at any time:
Sec. 15. Freedom parks. Every city and municipality in the country shall
within six months after the effectivity of this Act establish or designate at
least one suitable "freedom park" or mall in their respective jurisdictions
which, as far as practicable, shall be centrally located within the poblacion
where demonstrations and meetings may be held at any time without the
need of any prior permit.

In the cities and municipalities of Metropolitan Manila, the respective mayors

shall establish the freedom parks within the period of six months from the
effectivity this Act.

50
This brings up the point, however, of compliance with this provision.
The Solicitor General stated during the oral arguments that, to his
knowledge, only Cebu City has declared a freedom park Fuente Osmea.
That of Manila, the Sunken Gardens, has since been converted into a golf
course, he added.
If this is so, the degree of observance of B.P. No. 880s mandate that every
city and municipality set aside a freedom park within six months from its
effectivity in 1985, or 20 years ago, would be pathetic and regrettable. The
matter appears to have been taken for granted amidst the swell of freedom
that rose from the peaceful revolution of 1986.
Considering that the existence of such freedom parks is an essential part of
the laws system of regulation of the peoples exercise of their right to
peacefully assemble and petition, the Court is constrained to rule that after
thirty (30) days from the finality of this Decision, no prior permit may be
required for the exercise of such right in any public park or plaza of a city or
municipality until that city or municipality shall have complied with Section 15
of the law. For without such alternative forum, to deny the permit would in
effect be to deny the right. Advance notices should, however, be given to the
authorities to ensure proper coordination and orderly proceedings.
The Court now comes to the matter of the CPR. As stated earlier, the
Solicitor General has conceded that the use of the term should now be
discontinued, since it does not mean anything other than the maximum
tolerance policy set forth in B.P. No. 880. This is stated in the Affidavit of
respondent Executive Secretary Eduardo Ermita, submitted by the Solicitor
General, thus:
14. The truth of the matter is the policy of "calibrated preemptive response"
is in consonance with the legal definition of "maximum tolerance" under
Section 3 (c) of B.P. Blg. 880, which is the "highest degree of restraint that
the military, police and other peacekeeping authorities shall observe during a

public assembly or in the dispersal of the same." Unfortunately, however, the

phrase "maximum tolerance" has acquired a different meaning over the
years. Many have taken it to mean inaction on the part of law enforcers even
in the face of mayhem and serious threats to public order. More so, other felt
that they need not bother secure a permit when holding rallies thinking this
would be "tolerated." Clearly, the popular connotation of "maximum
tolerance" has departed from its real essence under B.P. Blg. 880.
15. It should be emphasized that the policy of maximum tolerance is
provided under the same law which requires all pubic assemblies to have a
permit, which allows the dispersal of rallies without a permit, and which
recognizes certain instances when water cannons may be used. This could
only mean that "maximum tolerance" is not in conflict with a "no permit, no
rally policy" or with the dispersal and use of water cannons under certain
circumstances for indeed, the maximum amount of tolerance required is
dependent on how peaceful or unruly a mass action is. Our law enforcers
should calibrate their response based on the circumstances on the ground
with the view to preempting the outbreak of violence.
16. Thus, when I stated that calibrated preemptive response is being
enforced in lieu of maximum tolerance I clearly was not referring to its legal
definition but to the distorted and much abused definition that it has now
acquired. I only wanted to disabuse the minds of the public from the notion
that law enforcers would shirk their responsibility of keeping the peace even
when confronted with dangerously threatening behavior. I wanted to send a
message that we would no longer be lax in enforcing the law but would
henceforth follow it to the letter. Thus I said, "we have instructed the PNP as
well as the local government units to strictly enforce a no permit, no rally
policy . . . arrest all persons violating the laws of the land . . . unlawful mass
actions will be dispersed." None of these is at loggerheads with the letter and
spirit of Batas Pambansa Blg. 880. It is thus absurd for complainants to even
claim that I ordered my co-respondents to violate any law.25
At any rate, the Court rules that in view of the maximum tolerance mandated
by B.P. No. 880, CPR serves no valid purpose if it means the same thing as

51
maximum tolerance and is illegal if it means something else. Accordingly,
what is to be followed is and should be that mandated by the law itself,
namely, maximum tolerance, which specifically means the following:

(b) The members of the law enforcement contingent shall not carry any kind
of firearms but may be equipped with baton or riot sticks, shields, crash
helmets with visor, gas masks, boots or ankle high shoes with shin guards;

Sec. 3. Definition of terms. For purposes of this Act:

xxx

(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device
shall not be used unless the public assembly is attended by actual violence
or serious threats of violence, or deliberate destruction of property.

(c) "Maximum tolerance" means the highest degree of restraint that the
military, police and other peace keeping authorities shall observe during a
public assembly or in the dispersal of the same.

Sec. 11. Dispersal of public assembly with permit. No public assembly with
a permit shall be dispersed. However, when an assembly becomes violent,
the police may disperse such public assembly as follows:

xxx

(a) At the first sign of impending violence, the ranking officer of the law
enforcement contingent shall call the attention of the leaders of the public
assembly and ask the latter to prevent any possible disturbance;

Sec. 9. Non-interference by law enforcement authorities. Law enforcement

agencies shall not interfere with the holding of a public assembly. However,
to adequately ensure public safety, a law enforcement contingent under the
command of a responsible police officer may be detailed and stationed in a
place at least one hundred (100) meters away from the area of activity ready
to maintain peace and order at all times.
Sec. 10. Police assistance when requested. It shall be imperative for law
enforcement agencies, when their assistance is requested by the leaders or
organizers, to perform their duties always mindful that their responsibility to
provide proper protection to those exercising their right peaceably to
assemble and the freedom of expression is primordial.1avvphil.net Towards
this end, law enforcement agencies shall observe the following guidelines:
(a) Members of the law enforcement contingent who deal with the
demonstrators shall be in complete uniform with their nameplates and units
to which they belong displayed prominently on the front and dorsal parts of
their uniform and must observe the policy of "maximum tolerance" as herein
defined;

(b) If actual violence starts to a point where rocks or other harmful objects
from the participants are thrown at the police or at the non-participants, or at
any property causing damage to such property, the ranking officer of the law
enforcement contingent shall audibly warn the participants that if the
disturbance persists, the public assembly will be dispersed;

(c) If the violence or disturbance prevailing as stated in the preceding

subparagraph should not stop or abate, the ranking officer of the law
enforcement contingent shall audibly issue a warning to the participants of
the public assembly, and after allowing a reasonable period of time to lapse,
shall immediately order it to forthwith disperse;
(d) No arrest of any leader, organizer or participant shall also be made during
the public assembly unless he violates during the assembly a law, statute,
ordinance or any provision of this Act. Such arrest shall be governed by
Article 125 of the Revised Penal Code, as amended;

52
(d) Isolated acts or incidents of disorder or breach of the peace during the
public assembly shall not constitute a ground for dispersal.
xxx
Sec. 12. Dispersal of public assembly without permit. When the public
assembly is held without a permit where a permit is required, the said public
assembly may be peacefully dispersed.
Sec. 13. Prohibited acts. The following shall constitute violations of the Act:
(e) Obstructing, impeding, disrupting or otherwise denying the exercise of the
right to peaceful assembly;
(f) The unnecessary firing of firearms by a member of any law enforcement
agency or any person to disperse the public assembly;
(g) Acts described hereunder if committed within one hundred (100) meters
from the area of activity of the public assembly or on the occasion thereof:
xxx
4. the carrying of firearms by members of the law enforcement unit;
5. the interfering with or intentionally disturbing the holding of a public
assembly by the use of a motor vehicle, its horns and loud sound systems.

Furthermore, there is need to address the situation adverted to by petitioners

where mayors do not act on applications for a permit and when the police
demand a permit and the rallyists could not produce one, the rally is
immediately dispersed. In such a situation, as a necessary consequence and
part of maximum tolerance, rallyists who can show the police an application
duly filed on a given date can, after two days from said date, rally in

accordance with their application without the need to show a permit, the
grant of the permit being then presumed under the law, and it will be the
burden of the authorities to show that there has been a denial of the
application, in which case the rally may be peacefully dispersed following the
procedure of maximum tolerance prescribed by the law.
In sum, this Court reiterates its basic policy of upholding the fundamental
rights of our people, especially freedom of expression and freedom of
assembly. In several policy addresses, Chief Justice Artemio V. Panganiban
has repeatedly vowed to uphold the liberty of our people and to nurture their
prosperity. He said that "in cases involving liberty, the scales of justice should
weigh heavily against the government and in favor of the poor, the
oppressed, the marginalized, the dispossessed and the weak. Indeed, laws
and actions that restrict fundamental rights come to the courts with a heavy
presumption against their validity. These laws and actions are subjected to
heightened scrutiny."26
For this reason, the so-called calibrated preemptive response policy has no
place in our legal firmament and must be struck down as a darkness that
shrouds freedom. It merely confuses our people and is used by some police
agents to justify abuses. On the other hand, B.P. No. 880 cannot be
condemned as unconstitutional; it does not curtail or unduly restrict
freedoms; it merely regulates the use of public places as to the time, place
and manner of assemblies. Far from being insidious, "maximum tolerance" is
for the benefit of rallyists, not the government. The delegation to the mayors
of the power to issue rally "permits" is valid because it is subject to the
constitutionally-sound "clear and present danger" standard.
In this Decision, the Court goes even one step further in safeguarding liberty
by giving local governments a deadline of 30 days within which to designate
specific freedom parks as provided under B.P. No. 880. If, after that period,
no such parks are so identified in accordance with Section 15 of the law, all
public parks and plazas of the municipality or city concerned shall in effect
be deemed freedom parks; no prior permit of whatever kind shall be required
to hold an assembly therein. The only requirement will be written notices to

53
the police and the mayors office to allow proper coordination and orderly
activities.

WHEREFORE, the petitions are GRANTED in part, and respondents, more

particularly the Secretary of the Interior and Local Governments, are
DIRECTED to take all necessary steps for the immediate compliance with
Section 15 of Batas Pambansa No. 880 through the establishment or
designation of at least one suitable freedom park or plaza in every city and
municipality of the country. After thirty (30) days from the finality of this
Decision, subject to the giving of advance notices, no prior permit shall be
required to exercise the right to peaceably assemble and petition in the
public parks or plazas of a city or municipality that has not yet complied with
Section 15 of the law. Furthermore, Calibrated Preemptive Response (CPR),
insofar as it would purport to differ from or be in lieu of maximum tolerance,
is NULL and VOID and respondents are ENJOINED to REFRAIN from using
it and to STRICTLY OBSERVE the requirements of maximum tolerance. The
petitions are DISMISSED in all other respects, and the constitutionality of
Batas Pambansa No. 880 is SUSTAINED.
No costs.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

54
EN BANC
G.R. No. L-72119 May 29, 1987
VALENTIN L. LEGASPI, petitioner,
vs.
CIVIL SERVICE COMMISSION, respondent.
CORTES, J.:
The fundamental right of the people to information on matters of public
concern is invoked in this special civil action for mandamus instituted by
petitioner Valentin L. Legaspi against the Civil Service Commission. The
respondent had earlier denied Legaspi's request for information on the civil
service eligibilities of certain persons employed as sanitarians in the Health
Department of Cebu City. These government employees, Julian
Sibonghanoy and Mariano Agas, had allegedly represented themselves as
civil service eligibles who passed the civil service examinations for
sanitarians.
Claiming that his right to be informed of the eligibilities of Julian Sibonghanoy
and Mariano Agas, is guaranteed by the Constitution, and that he has no
other plain, speedy and adequate remedy to acquire the information,
petitioner prays for the issuance of the extraordinary writ of mandamus to
compel the respondent Commission to disclose said information.
This is not the first tune that the writ of mandamus is sought to enforce the
fundamental right to information. The same remedy was resorted to in the
case of Tanada et. al. vs. Tuvera et. al., (G.R. No. L-63915, April
24,1985,136 SCRA 27) wherein the people's right to be informed under the
1973 Constitution (Article IV, Section 6) was invoked in order to compel the
publication in the Official Gazette of various presidential decrees, letters of
instructions and other presidential issuances. Prior to the recognition of the
right in said Constitution the statutory right to information provided for in the
Land Registration Act (Section 56, Act 496, as amended) was claimed by a

newspaper editor in another mandamus proceeding, this time to demand

access to the records of the Register of Deeds for the purpose of gathering
data on real estate transactions involving aliens (Subido vs. Ozaeta, 80 Phil.
383 [1948]).
The constitutional right to information on matters of public concern first
gained recognition in the Bill of Rights, Article IV, of the 1973 Constitution,
which states:
Sec. 6. The right of the people to information on matters of public concern
shall be recognized. Access to official records, and to documents and papers
pertaining to official acts, transactions, or decisions, shall be afforded the
citizen subject to such limitations as may be provided by law.
The foregoing provision has been retained and the right therein provided
amplified in Article III, Sec. 7 of the 1987 Constitution with the addition of the
phrase, "as well as to government research data used as basis for policy
development." The new provision reads:
The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents, and papers
pertaining to official acts, transactions, or decisions, as well as to
government research data used as basis. for policy development, shall be
afforded the citizen, subject to such stations as may be provided by law.
These constitutional provisions are self-executing. They supply the rules by
means of which the right to information may be enjoyed (Cooley, A Treatise
on the Constitutional Limitations 167 [1927]) by guaranteeing the right and
mandating the duty to afford access to sources of information. Hence, the
fundamental right therein recognized may be asserted by the people upon
the ratification of the constitution without need for any ancillary act of the
Legislature. (Id. at, p. 165) What may be provided for by the Legislature are
reasonable conditions and limitations upon the access to be afforded which
must, of necessity, be consistent with the declared State policy of full public
disclosure of all transactions involving public interest (Constitution, Art. 11,
Sec. 28). However, it cannot be overemphasized that whatever limitation

55
may be prescribed by the Legislature, the right and the duty under Art. III
Sec. 7 have become operative and enforceable by virtue of the adoption of
the New Charter. Therefore, the right may be properly invoked in a
mandamus proceeding such as this one.
The Solicitor General interposes procedural objections to Our giving due
course to this Petition. He challenges the petitioner's standing to sue upon
the ground that the latter does not possess any clear legal right to be
informed of the civil service eligibilities of the government employees
concerned. He calls attention to the alleged failure of the petitioner to show
his actual interest in securing this particular information. He further argues
that there is no ministerial duty on the part of the Commission to furnish the
petitioner with the information he seeks.
1. To be given due course, a Petition for mandamus must have been
instituted by a party aggrieved by the alleged inaction of any tribunal,
corporation, board or person which unlawfully excludes said party from the
enjoyment of a legal right. (Ant;-Chinese League of the Philippines vs. Felix,
77 Phil. 1012 [1947]). The petitioner in every case must therefore be an
"aggrieved party" in the sense that he possesses a clear legal right to be
enforced and a direct interest in the duty or act to be performed.
In the case before Us, the respondent takes issue on the personality of the
petitioner to bring this suit. It is asserted that, the instant Petition is bereft of
any allegation of Legaspi's actual interest in the civil service eligibilities of
Julian Sibonghanoy and Mariano Agas, At most there is a vague reference to
an unnamed client in whose behalf he had allegedly acted when he made
inquiries on the subject (Petition, Rollo, p. 3).
But what is clear upon the face of the Petition is that the petitioner has firmly
anchored his case upon the right of the people to information on matters of
public concern, which, by its very nature, is a public right. It has been held
that:
* * * when the question is one of public right and the object of the mandamus
is to procure the enforcement of a public duty, the people are regarded as

the real party in interest and the relator at whose instigation the proceedings
are instituted need not show that he has any legal or special interest in the
result, it being sufficient to show that he is a citizen and as such interested in
the execution of the laws * * * (Tanada et. al. vs. Tuvera, et. al., G.R. No. L63915, April 24, 1985, 136 SCRA 27, 36).
From the foregoing, it becomes apparent that when a mandamus proceeding
involves the assertion of a public right, the requirement of personal interest is
satisfied by the mere fact that the petitioner is a citizen, and therefore, part of
the general "public" which possesses the right.

The Court had opportunity to define the word "public" in the Subido case,
supra, when it held that even those who have no direct or tangible interest in
any real estate transaction are part of the "public" to whom "(a)ll records
relating to registered lands in the Office of the Register of Deeds shall be
open * * *" (Sec. 56, Act No. 496, as amended). In the words of the Court:
* * * "Public" is a comprehensive, all-inclusive term. Properly construed, it
embraces every person. To say that only those who have a present and
existing interest of a pecuniary character in the particular information sought
are given the right of inspection is to make an unwarranted distinction. ***
(Subido vs. Ozaeta, supra at p. 387).
The petitioner, being a citizen who, as such is clothed with personality to
seek redress for the alleged obstruction of the exercise of the public right.
We find no cogent reason to deny his standing to bring the present suit.
2. For every right of the people recognized as fundamental, there lies a
corresponding duty on the part of those who govern, to respect and protect
that right. That is the very essence of the Bill of Rights in a constitutional
regime. Only governments operating under fundamental rules defining the
limits of their power so as to shield individual rights against its arbitrary
exercise can properly claim to be constitutional (Cooley, supra, at p. 5).
Without a government's acceptance of the limitations imposed upon it by the

56
Constitution in order to uphold individual liberties, without an
acknowledgment on its part of those duties exacted by the rights pertaining
to the citizens, the Bill of Rights becomes a sophistry, and liberty, the
ultimate illusion.
In recognizing the people's right to be informed, both the 1973 Constitution
and the New Charter expressly mandate the duty of the State and its agents
to afford access to official records, documents, papers and in addition,
government research data used as basis for policy development, subject to
such limitations as may be provided by law. The guarantee has been further
enhanced in the New Constitution with the adoption of a policy of full public
disclosure, this time "subject to reasonable conditions prescribed by law," in
Article 11, Section 28 thereof, to wit:

Subject to reasonable conditions prescribed by law, the State adopts and

implements a policy of full public disclosure of all its transactions involving
public interest. (Art. 11, Sec. 28).
In the Tanada case, supra, the constitutional guarantee was bolstered by
what this Court declared as an imperative duty of the government officials
concerned to publish all important legislative acts and resolutions of a public
nature as well as all executive orders and proclamations of general
applicability. We granted mandamus in said case, and in the process, We
found occasion to expound briefly on the nature of said duty:
* * * That duty must be enforced if the Constitutional right of the people to be
informed on matters of public concern is to be given substance and reality.
The law itself makes a list of what should be published in the Official
Gazette. Such listing, to our mind, leaves respondents with no discretion
whatsoever as to what must be in included or excluded from such
publication. (Tanada v. Tuvera, supra, at 39). (Emphasis supplied).

The absence of discretion on the part of government agencia es in allowing

the examination of public records, specifically, the records in the Office of the
Register of Deeds, is emphasized in Subido vs. Ozaeta, supra:
Except, perhaps when it is clear that the purpose of the examination is
unlawful, or sheer, idle curiosity, we do not believe it is the duty under the law
of registration officers to concern themselves with the motives, reasons, and
objects of the person seeking access to the records. It is not their prerogative
to see that the information which the records contain is not flaunted before
public gaze, or that scandal is not made of it. If it be wrong to publish the
contents of the records, it is the legislature and not the officials having
custody thereof which is called upon to devise a remedy. *** (Subido v.
Ozaeta, supra at 388). (Emphasis supplied).
It is clear from the foregoing pronouncements of this Court that government
agencies are without discretion in refusing disclosure of, or access to,
information of public concern. This is not to lose sight of the reasonable
regulations which may be imposed by said agencies in custody of public
records on the manner in which the right to information may be exercised by
the public. In the Subido case, We recognized the authority of the Register of
Deeds to regulate the manner in which persons desiring to do so, may
inspect, examine or copy records relating to registered lands. However, the
regulations which the Register of Deeds may promulgate are confined to:
* * * prescribing the manner and hours of examination to the end that
damage to or loss of, the records may be avoided, that undue interference
with the duties of the custodian of the books and documents and other
employees may be prevented, that the right of other persons entitled to make
inspection may be insured * * * (Subido vs. Ozaeta, 80 Phil. 383, 387)
Applying the Subido ruling by analogy, We recognized a similar authority in a
municipal judge, to regulate the manner of inspection by the public of
criminal docket records in the case of Baldoza vs. Dimaano (Adm. Matter
No. 1120-MJ, May 5, 1976, 71 SCRA 14). Said administrative case was filed
against the respondent judge for his alleged refusal to allow examination of
the criminal docket records in his sala. Upon a finding by the Investigating

57
Judge that the respondent had allowed the complainant to open and view the
subject records, We absolved the respondent. In effect, We have also held
that the rules and conditions imposed by him upon the manner of examining
the public records were reasonable.
In both the Subido and the Baldoza cases, We were emphatic in Our
statement that the authority to regulate the manner of examining public
records does not carry with it the power to prohibit. A distinction has to be
made between the discretion to refuse outright the disclosure of or access to
a particular information and the authority to regulate the manner in which the
access is to be afforded. The first is a limitation upon the availability of
access to the information sought, which only the Legislature may impose
(Art. III, Sec. 6, 1987 Constitution). The second pertains to the government
agency charged with the custody of public records. Its authority to regulate
access is to be exercised solely to the end that damage to, or loss of, public
records may be avoided, undue interference with the duties of said agencies
may be prevented, and more importantly, that the exercise of the same
constitutional right by other persons shall be assured (Subido vs. Ozaetal
supra).
Thus, while the manner of examining public records may be subject to
reasonable regulation by the government agency in custody thereof, the duty
to disclose the information of public concern, and to afford access to public
records cannot be discretionary on the part of said agencies. Certainly, its
performance cannot be made contingent upon the discretion of such
agencies. Otherwise, the enjoyment of the constitutional right may be
rendered nugatory by any whimsical exercise of agency discretion. The
constitutional duty, not being discretionary, its performance may be
compelled by a writ of mandamus in a proper case.
But what is a proper case for Mandamus to issue? In the case before Us, the
public right to be enforced and the concomitant duty of the State are
unequivocably set forth in the Constitution. The decisive question on the
propriety of the issuance of the writ of mandamus in this case is, whether the

information sought by the petitioner is within the ambit of the constitutional

guarantee.
3. The incorporation in the Constitution of a guarantee of access to
information of public concern is a recognition of the essentiality of the free
flow of ideas and information in a democracy (Baldoza v. Dimaano, Adm.
Matter No. 1120-MJ, May 5, 1976, 17 SCRA 14). In the same way that free
discussion enables members of society to cope with the exigencies of their
time (Thornhill vs. Alabama, 310 U.S. 88,102 [1939]), access to information
of general interest aids the people in democratic decision-making (87
Harvard Law Review 1505 [1974]) by giving them a better perspective of the
vital issues confronting the nation.
But the constitutional guarantee to information on matters of public concern
is not absolute. It does not open every door to any and all information. Under
the Constitution, access to official records, papers, etc., are "subject to
limitations as may be provided by law" (Art. III, Sec. 7, second sentence).
The law may therefore exempt certain types of information from public
scrutiny, such as those affecting national security (Journal No. 90,
September 23, 1986, p. 10; and Journal No. 91, September 24, 1986, p. 32,
1986 Constitutional Commission). It follows that, in every case, the
availability of access to a particular public record must be circumscribed by
the nature of the information sought, i.e., (a) being of public concern or one
that involves public interest, and, (b) not being exempted by law from the
operation of the constitutional guarantee. The threshold question is,
therefore, whether or not the information sought is of public interest or public
concern.
a. This question is first addressed to the government agency having custody
of the desired information. However, as already discussed, this does not give
the agency concerned any discretion to grant or deny access. In case of
denial of access, the government agency has the burden of showing that the
information requested is not of public concern, or, if it is of public concern,
that the same has been exempted by law from the operation of the
guarantee. To hold otherwise will serve to dilute the constitutional right. As

58
aptly observed, ". . . the government is in an advantageous position to
marshall and interpret arguments against release . . ." (87 Harvard Law
Review 1511 [1974]). To safeguard the constitutional right, every denial of
access by the government agency concerned is subject to review by the
courts, and in the proper case, access may be compelled by a writ of
Mandamus.
In determining whether or not a particular information is of public concern
there is no rigid test which can be applied. "Public concern" like "public
interest" is a term that eludes exact definition. Both terms embrace a broad
spectrum of subjects which the public may want to know, either because
these directly affect their lives, or simply because such matters naturally
arouse the interest of an ordinary citizen. In the final analysis, it is for the
courts to determine in a case by case basis whether the matter at issue is of
interest or importance, as it relates to or affects the public.
The public concern invoked in the case of Tanada v. Tuvera, supra, was the
need for adequate notice to the public of the various laws which are to
regulate the actions and conduct of citizens. In Subido vs. Ozaeta, supra, the
public concern deemed covered by the statutory right was the knowledge of
those real estate transactions which some believed to have been registered
in violation of the Constitution.
The information sought by the petitioner in this case is the truth of the claim
of certain government employees that they are civil service eligibles for the
positions to which they were appointed. The Constitution expressly declares
as a State policy that:

at all times accountable to the people even as to their eligibilities for their
respective positions.
b. But then, it is not enough that the information sought is of public interest.
For mandamus to lie in a given case, the information must not be among the
species exempted by law from the operation of the constitutional guarantee.

In the instant, case while refusing to confirm or deny the claims of eligibility,
the respondent has failed to cite any provision in the Civil Service Law which
would limit the petitioner's right to know who are, and who are not, civil
service eligibles. We take judicial notice of the fact that the names of those
who pass the civil service examinations, as in bar examinations and
licensure examinations for various professions, are released to the public.
Hence, there is nothing secret about one's civil service eligibility, if actually
possessed. Petitioner's request is, therefore, neither unusual nor
unreasonable. And when, as in this case, the government employees
concerned claim to be civil service eligibles, the public, through any citizen,
has a right to verify their professed eligibilities from the Civil Service
Commission.
The civil service eligibility of a sanitarian being of public concern, and in the
absence of express limitations under the law upon access to the register of
civil service eligibles for said position, the duty of the respondent
Commission to confirm or deny the civil service eligibility of any person
occupying the position becomes imperative. Mandamus, therefore lies.

Appointments in the civil service shall be made only according to merit and
fitness to be determined, as far as practicable, and except as to positions
which are policy determining, primarily confidential or highly technical, by
competitive examination. (Art. IX, B, Sec. 2.[2]).

WHEREFORE, the Civil Service Commission is ordered to open its register

of eligibles for the position of sanitarian, and to confirm or deny, the civil
service eligibility of Julian Sibonghanoy and Mariano Agas, for said position
in the Health Department of Cebu City, as requested by the petitioner
Valentin L. Legaspi.

Public office being a public trust, [Const. Art. XI, Sec. 1] it is the legitimate
concern of citizens to ensure that government positions requiring civil service
eligibility are occupied only by persons who are eligibles. Public officers are

Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr.,

Cruz, Paras, Gancayco, Padilla, Bidin and Sarmiento, JJ., concur.

59
Republic of the Philippines
SUPREME COURT
Manila
EN BANC

The controversy arose when petitioner Valmonte wrote respondent Belmonte

the following letter:
June 4, 1986

G.R. No. 74930 February 13, 1989

Hon. Feliciano Belmonte

RICARDO VALMONTE, OSWALDO CARBONELL, DOY DEL CASTILLO,

ROLANDO BARTOLOME, LEO OBLIGAR, JUN GUTIERREZ, REYNALDO
BAGATSING, JUN "NINOY" ALBA, PERCY LAPID, ROMMEL CORRO and
ROLANDO FADUL, petitioners,

GSIS General Manager

vs.

As a lawyer, member of the media and plain citizen of our Republic, I am

requesting that I be furnished with the list of names of the opposition
members of (the) Batasang Pambansa who were able to secure a clean loan
of P2 million each on guarranty (sic) of Mrs. Imelda Marcos. We understand
that OIC Mel Lopez of Manila was one of those aforesaid MPs. Likewise,
may we be furnished with the certified true copies of the documents
evidencing their loan. Expenses in connection herewith shall be borne by us.

FELICIANO BELMONTE, JR., respondent.

Ricardo C. Valmonte for and in his own behalf and his co-petitioners.
The Solicitor General for respondent.
CORTES, J.:
Petitioners in this special civil action for mandamus with preliminary
injunction invoke their right to information and pray that respondent be
directed:

Arroceros, Manila
Sir:

If we could not secure the above documents could we have access to them?
We are premising the above request on the following provision of the
Freedom Constitution of the present regime.

(a) to furnish petitioners the list of the names of the Batasang Pambansa
members belonging to the UNIDO and PDP-Laban who were able to secure
clean loans immediately before the February 7 election thru the
intercession/marginal note of the then First Lady Imelda Marcos; and/or

The right of the people to information on matters of public concern shall be

recognized. Access to official records, and to documents and papers
pertaining to official acts, transactions or decisions, shall be afforded the
citizen subject to such limitation as may be provided by law. (Art. IV, Sec. 6).

(b) to furnish petitioners with certified true copies of the documents

evidencing their respective loans; and/or

We trust that within five (5) days from receipt hereof we will receive your
favorable response on the matter.

(c) to allow petitioners access to the public records for the subject
information. (Petition, pp. 4-5; paragraphing supplied.]

Very truly yours,

(Sgd.) RICARDO C. VALMONTE

60
[Rollo, p. 7.]

To the aforesaid letter, the Deputy General Counsel of the GSIS replied:
June 17, 1986

On June 20, 1986, apparently not having yet received the reply of the
Government Service and Insurance System (GSIS) Deputy General
Counsel, petitioner Valmonte wrote respondent another letter, saying that for
failure to receive a reply, "(W)e are now considering ourselves free to do
whatever action necessary within the premises to pursue our desired
objective in pursuance of public interest." [Rollo, p. 8.]

Atty. Ricardo C. Valmonte

108 E. Benin Street
Caloocan City
Dear Compaero:
Possibly because he must have thought that it contained serious legal
implications, President & General Manager Feliciano Belmonte, Jr. referred
to me for study and reply your letter to him of June 4, 1986 requesting a list
of the opposition members of Batasang Pambansa who were able to secure
a clean loan of P2 million each on guaranty of Mrs. Imelda Marcos.
My opinion in this regard is that a confidential relationship exists between the
GSIS and all those who borrow from it, whoever they may be; that the GSIS
has a duty to its customers to preserve this confidentiality; and that it would
not be proper for the GSIS to breach this confidentiality unless so ordered by
the courts.
As a violation of this confidentiality may mar the image of the GSIS as a
reputable financial institution, I regret very much that at this time we cannot
respond positively to your request.
Very truly yours,
(Sgd.) MEYNARDO A. TIRO
Deputy General Counsel
[Rollo, p. 40.]

On June 26, 1986, Valmonte, joined by the other petitioners, filed the instant
suit.
On July 19, 1986, the Daily Express carried a news item reporting that 137
former members of the defunct interim and regular Batasang Pambansa,
including ten (10) opposition members, were granted housing loans by the
GSIS [Rollo, p. 41.]
Separate comments were filed by respondent Belmonte and the Solicitor
General. After petitioners filed a consolidated reply, the petition was given
due course and the parties were required to file their memoranda. The
parties having complied, the case was deemed submitted for decision.
In his comment respondent raises procedural objections to the issuance of a
writ of mandamus, among which is that petitioners have failed to exhaust
administrative remedies.
Respondent claims that actions of the GSIS General Manager are
reviewable by the Board of Trustees of the GSIS. Petitioners, however, did
not seek relief from the GSIS Board of Trustees. It is therefore asserted that
since administrative remedies were not exhausted, then petitioners have no
cause of action.
To this objection, petitioners claim that they have raised a purely legal issue,
viz., whether or not they are entitled to the documents sought, by virtue of
their constitutional right to information. Hence, it is argued that this case falls
under one of the exceptions to the principle of exhaustion of administrative
remedies.

61
Among the settled principles in administrative law is that before a party can
be allowed to resort to the courts, he is expected to have exhausted all
means of administrative redress available under the law. The courts for
reasons of law, comity and convenience will not entertain a case unless the
available administrative remedies have been resorted to and the appropriate
authorities have been given opportunity to act and correct the errors
committed in the administrative forum. However, the principle of exhaustion
of administrative remedies is subject to settled exceptions, among which is
when only a question of law is involved [Pascual v. Provincial Board, 106
Phil. 466 (1959); Aguilar v. Valencia, et al., G.R. No. L-30396, July 30, 1971,
40 SCRA 210; Malabanan v. Ramento, G.R. No. L-2270, May 21, 1984, 129
SCRA 359.] The issue raised by petitioners, which requires the interpretation
of the scope of the constitutional right to information, is one which can be
passed upon by the regular courts more competently than the GSIS or its
Board of Trustees, involving as it does a purely legal question. Thus, the
exception of this case from the application of the general rule on exhaustion
of administrative remedies is warranted. Having disposed of this procedural
issue, We now address ourselves to the issue of whether or not mandamus
hes to compel respondent to perform the acts sought by petitioners to be
done, in pursuance of their right to information.
We shall deal first with the second and third alternative acts sought to be
done, both of which involve the issue of whether or not petitioners are
entitled to access to the documents evidencing loans granted by the GSIS.
This is not the first time that the Court is confronted with a controversy
directly involving the constitutional right to information. In Taada v. Tuvera,
G.R. No. 63915, April 24,1985, 136 SCRA 27 and in the recent case of
Legaspi v. Civil Service Commission, G.R. No. 72119, May 29, 1987,150
SCRA 530, the Court upheld the people's constitutional right to be informed
of matters of public interest and ordered the government agencies
concerned to act as prayed for by the petitioners.
The pertinent provision under the 1987 Constitution is Art. 111, Sec. 7 which
states:

The right of the people to information on matters of public concern shall be

recognized. Access to official records, and to documents, and papers
pertaining to official acts, transactions, or decisions, as well as to
government research data used as basis for policy development, shall be
afforded the citizen, subject to such limitations as may be provided by law.
The right of access to information was also recognized in the 1973
Constitution, Art. IV Sec. 6 of which provided:
The right of the people to information on 'matters of public concern shall be
recognized. Access to official records, and to documents and papers
pertaining to official acts, transactions, or decisions, shall be afforded the
citizen subject to such limitations as may be provided by law.
An informed citizenry with access to the diverse currents in political, moral
and artistic thought and data relative to them, and the free exchange of ideas
and discussion of issues thereon, is vital to the democratic government
envisioned under our Constitution. The cornerstone of this republican system
of government is delegation of power by the people to the State. In this
system, governmental agencies and institutions operate within the limits of
the authority conferred by the people. Denied access to information on the
inner workings of government, the citizenry can become prey to the whims
and caprices of those to whom the power had been delegated. The postulate
of public office as a public trust, institutionalized in the Constitution (in Art. XI,
Sec. 1) to protect the people from abuse of governmental power, would
certainly be were empty words if access to such information of public
concern is denied, except under limitations prescribed by implementing
legislation adopted pursuant to the Constitution.
Petitioners are practitioners in media. As such, they have both the right to
gather and the obligation to check the accuracy of information the
disseminate. For them, the freedom of the press and of speech is not only
critical, but vital to the exercise of their professions. The right of access to
information ensures that these freedoms are not rendered nugatory by the
government's monopolizing pertinent information. For an essential element
of these freedoms is to keep open a continuing dialogue or process of

62
communication between the government and the people. It is in the interest
of the State that the channels for free political discussion be maintained to
the end that the government may perceive and be responsive to the people's
will. Yet, this open dialogue can be effective only to the extent that the
citizenry is informed and thus able to formulate its will intelligently. Only when
the participants in the discussion are aware of the issues and have access to
information relating thereto can such bear fruit.
The right to information is an essential premise of a meaningful right to
speech and expression. But this is not to say that the right to information is
merely an adjunct of and therefore restricted in application by the exercise of
the freedoms of speech and of the press. Far from it. The right to information
goes hand-in-hand with the constitutional policies of full public disclosure *
and honesty in the public service. ** It is meant to enhance the widening role
of the citizenry in governmental decision-making as well as in checking
abuse in government.
Yet, like all the constitutional guarantees, the right to information is not
absolute. As stated in Legaspi, the people's right to information is limited to
"matters of public concern," and is further "subject to such limitations as may
be provided by law." Similarly, the State's policy of full disclosure is limited to
"transactions involving public interest," and is "subject to reasonable
conditions prescribed by law."

Hence, before mandamus may issue, it must be clear that the information
sought is of "public interest" or "public concern," and is not exempted by law
from the operation of the constitutional guarantee [Legazpi v. Civil Service
Commission, supra, at p. 542.]
The Court has always grappled with the meanings of the terms "public
interest" and "public concern". As observed in Legazpi:
In determining whether or not a particular information is of public concern
there is no rigid test which can be applied. "Public concern" like "public

interest" is a term that eludes exact definition. Both terms embrace a broad
spectrum of subjects which the public may want to know, either because
these directly affect their lives, or simply because such matters naturally
arouse the interest of an ordinary citezen. In the final analysis, it is for the
courts to determine on a case by case basis whether the matter at issue is of
interest or importance, as it relates to or affects the public. [Ibid. at p. 541]
In the Taada case the public concern deemed covered by the constitutional
right to information was the need for adequate notice to the public of the
various laws which are to regulate the actions and conduct of citezens. In
Legaspi, it was the "legitimate concern of citezensof ensure that government
positions requiring civil service eligibility are occupied only by persons who
are eligibles" [Supra at p. 539.]
The information sought by petitioners in this case is the truth of reports that
certain Members of the Batasang Pambansa belonging to the opposition
were able to secure "clean" loans from the GSIS immediately before the
February 7, 1986 election through the intercession of th eformer First Lady,
Mrs. Imelda Marcos.
The GSIS is a trustee of contributions from the government and its
employees and the administrator of various insurance programs for the
benefit of the latter. Undeniably, its funds assume a public character. More
particularly, Secs. 5(b) and 46 of P.D. 1146, as amended (the Revised
Government Service Insurance Act of 1977), provide for annual
appropriations to pay the contributions, premiums, interest and other
amounts payable to GSIS by the government, as employer, as well as the
obligations which the Republic of the Philippines assumes or guarantees to
pay. Considering the nature of its funds, the GSIS is expected to manage its
resources with utmost prudence and in strict compliance with the pertinent
laws or rules and regulations. Thus, one of the reasons that prompted the
revision of the old GSIS law (C.A. No. 186, as amended) was the necessity
"to preserve at all times the actuarial solvency of the funds administered by
the System" [Second Whereas Clause, P.D. No. 1146.] Consequently, as
respondent himself admits, the GSIS "is not supposed to grant 'clean loans.'"

63
[Comment, p. 8.] It is therefore the legitimate concern of the public to ensure
that these funds are managed properly with the end in view of maximizing
the benefits that accrue to the insured government employees. Moreover, the
supposed borrowers were Members of the defunct Batasang Pambansa who
themselves appropriated funds for the GSIS and were therefore expected to
be the first to see to it that the GSIS performed its tasks with the greatest
degree of fidelity and that an its transactions were above board.
In sum, the public nature of the loanable funds of the GSIS and the public
office held by the alleged borrowers make the information sought clearly a
matter of public interest and concern.
A second requisite must be met before the right to information may be
enforced through mandamus proceedings, viz., that the information sought
must not be among those excluded by law.
Respondent maintains that a confidential relationship exists between the
GSIS and its borrowers. It is argued that a policy of confidentiality restricts
the indiscriminate dissemination of information.
Yet, respondent has failed to cite any law granting the GSIS the privilege of
confidentiality as regards the documents subject of this petition. His position
is apparently based merely on considerations of policy. The judiciary does
not settle policy issues. The Court can only declare what the law is, and not
what the law should be. Under our system of government, policy issues are
within the domain of the political branches of the government, and of the
people themselves as the repository of all State power.
Respondent however contends that in view of the right to privacy which is
equally protected by the Constitution and by existing laws, the documents
evidencing loan transactions of the GSIS must be deemed outside the ambit
of the right to information.

There can be no doubt that right to privacy is constitutionally protected. In

the landmark case of Morfe v. Mutuc [130 Phil. 415 (1968), 22 SCRA 424],
this Court, speaking through then Mr. Justice Fernando, stated:
... The right to privacy as such is accorded recognition independently of its
identification with liberty; in itself, it is fully deserving of constitutional
protection. The language of Prof. Emerson is particularly apt: "The concept
of limited government has always included the idea that governmental
powers stop short of certain intrusions into the personal life of the citizen.
This is indeed one of the basic distinctions between absolute and limited
government. UItimate and pervasive control of the individual, in all aspects of
his life, is the hallmark of the absolute. state, In contrast, a system of limited
government safeguards a private sector, which belongs to the individual,
firmly distinguishing it from the public sector, which the state can control.
Protection of this private sector protection, in other words, of the dignity
and integrity of the individual has become increasingly important as
modem society has developed. All the forces of technological age
industrialization, urbanization, and organization operate to narrow the
area of privacy and facilitate intrusion into it. In modern terms, the capacity to
maintain and support this enclave of private life marks the difference
between a democratic and a totalitarian society." [at pp. 444-445.]
When the information requested from the government intrudes into the
privacy of a citizen, a potential conflict between the rights to information and
to privacy may arise. However, the competing interests of these rights need
not be resolved in this case. Apparent from the above-quoted statement of
the Court in Morfe is that the right to privacy belongs to the individual in his
private capacity, and not to public and governmental agencies like the GSIS.
Moreover, the right cannot be invoked by juridical entities like the GSIS. As
held in the case of Vassar College v. Loose Wills Biscuit Co. [197 F. 982
(1912)], a corporation has no right of privacy in its name since the entire
basis of the right to privacy is an injury to the feelings and sensibilities of the
party and a corporation would have no such ground for relief.

64
Neither can the GSIS through its General Manager, the respondent, invoke
the right to privacy of its borrowers. The right is purely personal in nature [Cf.
Atkinson v. John Doherty & Co., 121 Mich 372, 80 N.W. 285, 46 L.RA. 219
(1899); Schuyler v. Curtis, 147 N.Y. 434, 42 N.E. 22, 31 L.R.A. 286 (1895)),
and hence may be invoked only by the person whose privacy is claimed to
be violated.

It may be observed, however, that in the instant case, the concerned

borrowers themselves may not succeed if they choose to invoke their right to
privacy, considering the public offices they were holding at the time the loans
were alleged to have been granted. It cannot be denied that because of the
interest they generate and their newsworthiness, public figures, most
especially those holding responsible positions in government, enjoy a more
limited right to privacy as compared to ordinary individuals, their actions
being subject to closer public scrutiny [Cf. Ayer Productions Pty. Ltd. v.
Capulong, G.R. Nos. 82380 and 82398, April 29, 1988; See also Cohen v.
Marx, 211 P. 2d 321 (1949).]
Respondent next asserts that the documents evidencing the loan
transactions of the GSIS are private in nature and hence, are not covered by
the Constitutional right to information on matters of public concern which
guarantees "(a)ccess to official records, and to documents, and papers
pertaining to official acts, transactions, or decisions" only.
It is argued that the records of the GSIS, a government corporation
performing proprietary functions, are outside the coverage of the people's
right of access to official records.
It is further contended that since the loan function of the GSIS is merely
incidental to its insurance function, then its loan transactions are not covered
by the constitutional policy of full public disclosure and the right to
information which is applicable only to "official" transactions.

First of all, the "constituent ministrant" dichotomy characterizing

government function has long been repudiated. In ACCFA v. Confederation
of Unions and Government Corporations and Offices (G.R. Nos. L-21484
and L-23605, November 29, 1969, 30 SCRA 6441, the Court said that the
government, whether carrying out its sovereign attributes or running some
business, discharges the same function of service to the people.
Consequently, that the GSIS, in granting the loans, was exercising a
proprietary function would not justify the exclusion of the transactions from
the coverage and scope of the right to information.

Moreover, the intent of the members of the Constitutional Commission of

1986, to include government-owned and controlled corporations and
transactions entered into by them within the coverage of the State policy of
fun public disclosure is manifest from the records of the proceedings:
xxx xxx xxx
THE PRESIDING OFFICER (Mr. Colayco).
Commissioner Suarez is recognized.
MR. SUAREZ. Thank you. May I ask the Gentleman a few question?
MR. OPLE. Very gladly.
MR. SUAREZ. Thank you.
When we declare a "policy of full public disclosure of all its transactions"
referring to the transactions of the State and when we say the "State"
which I suppose would include all of the various agencies, departments,
ministries and instrumentalities of the government....
MR. OPLE. Yes, and individual public officers, Mr. Presiding Officer.
MR. SUAREZ. Including government-owned and controlled corporations.

65
MR. OPLE. That is correct, Mr. Presiding Officer.
MR. SUAREZ. And when we say "transactions" which should be
distinguished from contracts, agreements, or treaties or whatever, does the
Gentleman refer to the steps leading to the consummation of the contract, or
does he refer to the contract itself?
MR. OPLE. The "transactions" used here I suppose is generic and,
therefore, it can cover both steps leading to a contract, and already a
consummated contract, Mr. Presiding Officer.
MR. SUAREZ. This contemplates inclusion of negotiations leading to the
consummation of the transaction.

MR. OPLE. Yes, subject only to reasonable safeguards on the national

interest.
MR. SUAREZ. Thank you. [V Record of the Constitutional Commission 2425.] (Emphasis supplied.)
Considering the intent of the framers of the Constitution which, though not
binding upon the Court, are nevertheless persuasive, and considering further
that government-owned and controlled corporations, whether performing
proprietary or governmental functions are accountable to the people, the
Court is convinced that transactions entered into by the GSIS, a governmentcontrolled corporation created by special legislation are within the ambit of
the people's right to be informed pursuant to the constitutional policy of
transparency in government dealings.
In fine, petitioners are entitled to access to the documents evidencing loans
granted by the GSIS, subject to reasonable regulations that the latter may
promulgate relating to the manner and hours of examination, to the end that
damage to or loss of the records may be avoided, that undue interference
with the duties of the custodian of the records may be prevented and that the
right of other persons entitled to inspect the records may be insured [Legaspi

v. Civil Service Commission, supra at p. 538, quoting Subido v. Ozaeta, 80

Phil. 383, 387.] The petition, as to the second and third alternative acts
sought to be done by petitioners, is meritorious.
However, the same cannot be said with regard to the first act sought by
petitioners, i.e., "to furnish petitioners the list of the names of the Batasang
Pambansa members belonging to the UNIDO and PDP-Laban who were
able to secure clean loans immediately before the February 7 election thru
the intercession/marginal note of the then First Lady Imelda Marcos."
Although citizens are afforded the right to information and, pursuant thereto,
are entitled to "access to official records," the Constitution does not accord
them a right to compel custodians of official records to prepare lists,
abstracts, summaries and the like in their desire to acquire information on
matters of public concern.
It must be stressed that it is essential for a writ of mandamus to issue that
the applicant has a well-defined, clear and certain legal right to the thing
demanded and that it is the imperative duty of defendant to perform the act
required. The corresponding duty of the respondent to perform the required
act must be clear and specific [Lemi v. Valencia, G.R. No. L-20768,
November 29,1968,126 SCRA 203; Ocampo v. Subido, G.R. No. L-28344,
August 27, 1976, 72 SCRA 443.] The request of the petitioners fails to meet
this standard, there being no duty on the part of respondent to prepare the
list requested.
WHEREFORE, the instant petition is hereby granted and respondent
General Manager of the Government Service Insurance System is
ORDERED to allow petitioners access to documents and records evidencing
loans granted to Members of the former Batasang Pambansa, as petitioners
may specify, subject to reasonable regulations as to the time and manner of
inspection, not incompatible with this decision, as the GSIS may deem
necessary.
SO ORDERED.

66
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano,
Gancayco, Padilla, Bidin, Sarmiento, Grio-Aquino, Medialdea and
Regalado, JJ., concur.

67
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION

late President Ferdinand E. Marcos . . . relating to and concerning the

properties and assets of Ferdinand Marcos located in the Philippines and/or
abroad including the so-called Marcos gold hoard"; and (2) to "[c]ompel
respondent[s] to make public all negotiations and agreement, be they
ongoing or perfected, and all documents related to or relating to such
negotiations and agreement between the PCGG and the Marcos heirs." 1
The Facts

G.R. No. 130716 December 9, 1998

FRANCISCO I. CHAVEZ, petitioner,
vs.
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG) and
MAGTANGGOL GUNIGUNDO (in his capacity as chairman of the PCGG),
respondents, GLORIA A. JOPSON, CELNAN A. JOPSON, SCARLET A.
JOPSON, and TERESA A. JOPSON, petitioners-in-intervention.
PANGANIBAN, J.:
Petitioner asks this Court to define the nature and the extent of the people's
constitutional right to information on matters of public concern. Does this
right include access to the terms of government negotiations prior to their
consummation or conclusion? May the government, through the Presidential
Commission on Good Government (PCGG), be required to reveal the
proposed terms of a compromise agreement with the Marcos heirs as
regards their alleged ill-gotten wealth? More specifically, are the "General
Agreement" and "Supplemental Agreement," both dated December 28, 1993
and executed between the PCGG and the Marcos heirs, valid and binding?
The Case
These are the main questions raised in this original action seeking (1) to
prohibit and "[e]njoin respondents [PCGG and its chairman] from privately
entering into, perfecting and/or executing any greement with the heirs of the

Petitioner Francisco I. Chavez, as "taxpayer, citizen and former government

official who initiated the prosecution of the Marcoses and their cronies who
committed unmitigated plunder of the public treasury and the systematic
subjugation of the country's economy," alleges that what impelled him to
bring this action were several news reports 2 bannered in a number of
broadsheets sometime in September 1997. These news items referred to (1)
the alleged discovery of billions of dollars of Marcos assets deposited in
various coded accounts in Swiss banks; and (2) the reported execution of a
compromise, between the government (through PCGG) and the Marcos
heirs, on how to split or share these assets.
Petitioner, invoking his constitutional right to information 3 and the correlative
duty of the state to disclose publicly all its transactions involving the national
interest, 4 demands that respondents make public any and all negotiations
and agreements pertaining to PCGG's task of recovering the Marcoses' illgotten wealth. He claims that any compromise on the alleged billions of illgotten wealth involves an issue of "paramount public interest," since it has a
"debilitating effect on the country's economy" that would be greatly
prejudicial to the national interest of the Filipino people. Hence, the people in
general have a right to know the transactions or deals being contrived and
effected by the government.
Respondents, on the other hand, do not deny forging a compromise
agreement with the Marcos heirs. They claim, though, that petitioner's action
is premature, because there is no showing that he has asked the PCGG to
disclose the negotiations and the Agreements. And even if he has, PCGG

68
may not yet be compelled to make any disclosure, since the proposed terms
and conditions of the Agreements have not become effective and binding.

This Agreement entered into this 28th day of December, 1993, by and
between

Respondents further aver that the Marcos heirs have submitted the subject
Agreements to the Sandiganbayan for its approval in Civil Case No. 141,
entitled Republic v. Heirs of Ferdinand E. Marcos, and that the Republic
opposed such move on the principal grounds that (1) said Agreements have
not been ratified by or even submitted to the President for approval, pursuant
to Item No. 8 of the General Agreement; and (2) the Marcos heirs have failed
to comply with their undertakings therein, particularly the collation and
submission of an inventory of their assets. The Republic also cited an April
11, 1995 Resolution in Civil Case No. 0165, in which the Sandiganbayan
dismissed a similar petition filed by the Marcoses' attorney-in-fact.

The Republic of the Philippines, through the Presidential Commission on

Good Government (PCGG), a governmental agency vested with authority
defined under Executive Orders Nos. 1, 2 and 14, with offices at the
philcomcen Building, Pasig, Metro Manila, represented by its Chairman
referred to as FIRST PARTY,

Furthermore, then President Fidel V. Ramos, in his May 4, 1998

Memorandum 5 to then PCGG Chairman Magtanggol Gunigundo,
categorically stated:

and
Estate of Ferdinand E. Marcos, represented by Imelda Romualdez Marcos
and Ferdinand R. Marcos, Jr., all of legal age, and with address at c/o No.
154 Lopez Rizal St., Mandaluyong, Metro Manila, and Imelda Romualdez
Marcos, Imee Marcos Manotoc, Ferdinand E. Marcos, Jr., and Irene Marcos
Araneta, hereinafter collectively referred to as the PRIVATE PARTY.
W I T N E S S E T H:

This is to reiterate my previous position embodied in the Palace Press

Release of 6 April 1995 that I have not authorized you to approve the
Compromise Agreements of December 28, 1993 or any agreement at all with
the Marcoses, and would have disapproved them had they been submitted
to me.

WHEREAS, the PRIVATE PARTY has been impelled by their sense of

nationalism and love of country and of the entire Filipino people, and their
desire to set up a foundation and finance impact projects like installation of
power plants in selected rural areas and initiation of other community
projects for the empowerment of the people;

The Full Powers of Attorney of March 1994 and July 4, 1994, did not
authorize you to approve said Agreements, which I reserve for myself as
President of the Republic of the Philippines.

WHEREAS, the FIRST PARTY has obtained a judgment from the Swiss
Federal Tribunal of December 21, 1990, that the $356 million belongs in
principle to the Republic of the Philippines provided certain conditionalities
are met, but even after 7 years, the FIRST PARTY has not been able to
procure a final judgment of conviction against the PRIVATE PARTY;

The assailed principal Agreement 6 reads:

GENERAL AGREEMENT
KNOW ALL MEN BY THESE PRESENTS:

WHEREAS, the FIRST PARTY is desirous of avoiding a long-drawn out

litigation which, as proven by the past 7 years, is consuming money, time
and effort, and is counter-productive and ties up assets which the FIRST
PARTY could otherwise utilize for its Comprehensive Agrarian Reform
Program, and other urgent needs;

69

WHEREAS, His Excellency, President Fidel V. Ramos, has adopted a policy

of unity and reconciliation in order to bind the nation's wounds and start the
process of rebuilding this nation as it goes on to the twenty-first century;
WHEREAS, this Agreement settles all claims and counterclaims which the
parties may have against one another, whether past, present, or future,
matured or inchoate.
NOW, THEREFORE, for and in consideration of the mutual covenants set
forth herein, the parties agree as follows:
1. The parties will collate all assets presumed to be owned by, or held by
other parties for the benefit of, the PRIVATE PARTY for purposes of
determining the totality of the assets covered by the settlement. The subject
assets shall be classified by the nature thereof, namely: (a) real estate; (b)
jewelry; (c) paintings and other works of art; (d) securities; (e) funds on
deposit; (f) precious metals, if any, and (g) miscellaneous assets or assets
which could not appropriately fall under any of the preceding classification.
The list shall be based on the full disclosure of the PRIVATE PARTY to
insure its accuracy.
2. Based on the inventory, the FIRST PARTY shall determine which shall be
ceded to the FIRST PARTY, and which shall be assigned to/retained by the
PRIVATE PARTY. The assets of the PRIVATE PARTY shall be net of and
exempt from, any form of taxes due the Republic of the Philippines.
However, considering the unavailability of all pertinent and relevant
documents and information as to balances and ownership, the actual
specification of assets to be retained by the PRIVATE PARTY shall be
covered by supplemental agreements which shall form part of this
Agreement.
3. Foreign assets which the PRIVATE PARTY shall fully disclose but which
are held by trustees, nominees, agents or foundations are hereby waived
over by the PRIVATE PARTY in favor of the FIRST PARTY. For this purpose,

the parties shall cooperate in taking the appropriate action, judicial and/or
extrajudicial, to recover the same for the FIRST PARTY.

4. All disclosures of assets made by the PRIVATE PARTY shall not be used
as evidence by the FIRST PARTY in any criminal, civil, tax or administrative
case, but shall be valid and binding against said PARTY for use by the
FIRST PARTY in withdrawing any account and/or recovering any asset. The
PRIVATE PARTY withdraws any objection to the withdrawal by and/or
release to the FIRST PARTY by the Swiss banks and/or Swiss authorities of
the $356 million, its accrued interests, and/or any other account; over which
the PRIVATE PARTY waives any right, interest or participation in favor of the
FIRST PARTY. However, any withdrawal or release of any account
aforementioned by the FIRST PARTY shall be made in the presence of any
authorized representative of the PRIVATE PARTY.
5. The trustees, custodians, safekeepers, depositaries, agents, nominees,
administrators, lawyers, or any other party acting in similar capacity in behalf
of the PRIVATE PARTY are hereby informed through this General
Agreement to insure that it is fully implemented and this shall serve as
absolute authority from both parties for full disclosure to the FIRST PARTY of
said assets and for the FIRST PARTY to withdraw said account and/or
assets and any other assets which the FIRST PARTY on its own or through
the help of the PRIVATE PARTY/their trustees, etc., may discover.
6. Any asset which may be discovered in the future as belonging to the
PRIVATE PARTY or is being held by another for the benefit of the PRIVATE
PARTY and which is not included in the list per No. 1 for whatever reason
shall automatically belong to the FIRST PARTY, and the PRIVATE PARTY in
accordance with No. 4 above, waives any right thereto.

70
7. This Agreement shall be binding on and inure to the benefit of, the parties
and their respective legal representatives, successors and assigns and shall
supersede any other prior agreement.

MARCOS-MANOTOC, FERDINAND R.

8. The PARTIES shall submit this and any other implementing Agreements to
the President of the Philippines for approval. In the same manner, the
PRIVATE PARTY shall provide the FIRST PARTY assistance by way of
testimony or deposition on any information it may have that could shed light
on the cases being pursued by the FIRST PARTY against other parties. The
FIRST PARTY shall desist from instituting new suits already subject of this
Agreement against the PRIVATE PARTY and cause the dismissal of all other
cases pending in the Sandiganbayan and in other courts.

ARANETA

9. In case of violation by the PRIVATE PARTY of any of the conditions herein

contained, the PARTIES shall be restored automatically to the status quo
ante the signing of this Agreement.
For purposes of this Agreement, the PRIVATE PARTY shall be represented
by Atty. Simeon M. Mesina, Jr., as their only Attorney-in-Fact.
IN WITNESS WHEREOF, the parties have signed this instrument this 28th
day of December, 1993, in Makati, Metro Manila.
PRESIDENTIAL COMMISSION ON
GOOD GOVERNMENT
By:
[Sgd.] MAGTANGGOL C. GUNIGUNDO
Chairman
ESTATE OF FERDINAND E. MARCOS,
IMELDA R. MARCOS, MA. IMELDA

MARCOS, JR., & IRENE MARCOS-

By:
[Sgd.] IMELDA ROMUALDEZ-MARCOS
[Sgd.] MA. IMELDA MARCOS-MANOTOC
FERDINAND R. MARCOS, JR. 7
[Sgd.] IRENE MARCOS-ARANETA
Assisted by:
[Sgd.] ATTY. SIMEON M. MESINA, JR.
Counsel & Attorney-in-Fact
Petitioner also denounces this supplement to the above Agreement: 8
SUPPLEMENTAL AGREEMENT
This Agreement entered into this 28th day of December, 1993, by and
between
The Republic of the Philippines, through the Presidential Commission on
Good Government (PCGG), a governmental agency vested with authority
defined under Executive Orders Nos. 1, 2 and 14, with offices at the
Philcomcen Building, Pasig, Metro Manila, represented by its Chairman
Magtanggol C. Gunigundo, hereinafter referred to as the FIRST PARTY,
and

71
Estate of Ferdinand E. Marcos, represented by Imelda Romualdez Marcos
and Ferdinand R. Marcos, Jr., all of legal age, and with address at c/o No.
154 Lopez Rizal St., Mandaluyong, Metro Manila, and Imelda Romualdez
Marcos, Imee Marcos Manotoc, Ferdinand E. Marcos, Jr., and Irene Marcos
Araneta, hereinafter collectively referred to as the PRIVATE PARTY.
W I T N E S S E T H:
The parties in this case entered into a General Agreement dated Dec. 28,
1993;

ESTATE OF FERDINAND E. MARCOS,

IMELDA R. MARCOS, MA. IMELDA
MARCOS-MANOTOC, FERDINAND R.
MARCOS, JR., & IRENE MARCOSARANETA
By:

The PRIVATE PARTY expressly reserve their right to pursue their interest
and/or sue over local assets located in the Philippines against parties other
than the FIRST PARTY.

[Sgd.] IMELDA ROMUALDEZ-MARCOS

The parties hereby agree that all expenses related to the recovery and/or
withdrawal of all assets including lawyers' fees, agents' fees, nominees'
service fees, bank charges, traveling expenses and all other expenses
related thereto shall be for the account of the PRIVATE PARTY.

FERDINAND R. MARCOS, JR. 9

In consideration of the foregoing, the parties hereby agree that the PRIVATE
PARTY shall be entitled to the equivalent of 25% of the amount that may be
eventually withdrawn from said $356 million Swiss deposits.

[Sgd.] ATTY. SIMEON M. MESINA, JR.

IN WITNESS WHEREOF, the parties have signed this instrument this 28th
day of December, 1993, in Makati, Metro Manila.

Acting on a motion of petitioner, the Court issued a Temporary Restraining

Order 10 dated March 23, enjoining respondents, their agents and/or
representatives from "entering into, or perfecting and/or executing any
agreement with the heirs of the late President Ferdinand E. Marcos relating
to and concerning their ill-gotten wealth."

PRESIDENTIAL COMMISSION ON
GOOD GOVERNMENT
By:
[Sgd.] MAGTANGGOL C. GUNIGUNDO
Chairman

[Sgd.] MA. IMELDA MARCOS-MANOTOC

[Sgd.] IRENE MARCOS-ARANETA

Assisted by:

Counsel & Attorney-in-Fact

Issues
The Oral Argument, held on March 16, 1998, focused on the following
issues:
(a) Procedural:

72
(1) Whether or not the petitioner has the personality or legal standing to file
the instant petition; and
(2) Whether or not this Court is the proper court before which this action may
be filed.
(b) Substantive:
(1) Whether or not this Court could require the PCGG to disclose to the
public the details of any agreement, perfected or not, with the Marcoses; and
(2) Whether or not there exist any legal restraints against a compromise
agreement between the Marcoses and the PCGG relative to the Marcoses'
ill-gotten wealth. 11
After their oral presentations, the parties filed their respective memoranda.
On August 19, 1998, Gloria, Celnan, Scarlet and Teresa, all surnamed
Jopson, filed before the Court a Motion for Intervention, attaching thereto
their Petition in Intervention. They aver that they are "among the 10,000
claimants whose right to claim from the Marcos Family and/or the Marcos
Estate is recognized by the decision in In re Estate of Ferdinand Marcos,
Human Rights Litigation, Maximo Hilao, et al., Class Plaintiffs No. 92-15526,
U.S. Court of Appeals for the 9th Circuit US App. Lexis 14796, June 16, 1994
and the Decision of the Swiss Supreme Court of December 10, 1997." As
such, they claim to have personal and direct interest in the subject matter of
the instant case, since a distribution or disposition of the Marcos properties
may adversely affect their legitimate claims. In a minute Resolution issued
on August 24, 1998, the Court granted their motion to intervene and required
the respondents to comment thereon. The September 25, 1998 Comment 12
of the solicitor general on said motion merely reiterated his aforecited
arguments against the main petition. 13
The Court's Ruling
The petition id imbued with merit.

First Procedural Issue:

Petitioner's Standing
Petitioner, on the one hand, explains that as a taxpayer and citizen, he has
the legal personality to file the instant petition. He submits that since illgotten wealth "belongs to the Filipino people and [is], in truth hand in fact,
part of the public treasury," any compromise in relation to it would constitute
a diminution of the public funds, which can be enjoined by a taxpayer whose
interest is for a full, if not substantial, recovery of such assets.
Besides, petitioner emphasize, the matter of recovering the ill-gotten wealth
of the Marcoses is an issue "of transcendental importance the public." He
asserts that ordinary taxpayers have a right to initiate and prosecute actions
questioning the validity of acts or orders of government agencies or
instrumentalities, if the issues raised are "of paramount public interest;" and
if they "immeasurably affect the social, economic, and moral well-being of
the people."
Moreover, the mere fact that he is a citizen satisfies the requirement of
personal interest, when the proceeding involves the assertion of a public
right, 14 such as in this case. He invokes several decisions 15 of this Court
which have set aside the procedural matter of locus standi, when the subject
of the case involved public interest.
On the other hand, the solicitor general, on behalf of respondents, contends
that petitioner has no standing to institute the present action, because no
expenditure of public funds is involved and said petitioner has no actual
interest in the alleged agreement. Respondents further insist that the instant
petition is premature, since there is no showing that petitioner has requested
PCGG to disclose any such negotiations and agreements; or that, if he has,
the Commission has refused to do so.
Indeed, the arguments cited by petitioner constitute the controlling decisional
rule as regards his legal standing to institute the instant petition. Access to

73
public documents and records is a public right, and the real parties in interest
are the people themselves. 16
In Taada v. Tuvera, 17 the Court asserted that when the issue concerns a
public a right and the object of mandamus is to obtain the enforcement of a
public duty, the people are regarded as the real parties in interest; and
because it is sufficient that petitioner is a citizen and as such is interested in
the execution of the laws, he need not show that he has any legal or special
interest in the result of the action. 18 In the aforesaid case, the petitioners
sought to enforce their right to be informed on matters of public concern, a
right then recognized in Section 6, Article IV of the 1973 Constitution, 19 in
connection with the rule that laws in order to be valid and enforceable must
be published in the Official Gazette or otherwise effectively promulgated. In
ruling for the petitioners' legal standing, the Court declared that the right they
sought to be enforced "is a public right recognized by no less than the
fundamental law of the land."
Legaspi v. Civil Service Commission, 20 while reiterating Taada, further
declared that "when a mandamus proceeding involves the assertion of a
public right, the requirement of personal interest is satisfied by the mere fact
that petitioner is a citizen and, therefore, part of the general 'public' which
possesses the right." 21
Further, in Albano v. Reyes, 22 we said that while expenditure of public funds
may not have been involved under the questioned contract for the
development, the management and the operation of the Manila International
Container Terminal, "public interest [was] definitely involved considering the
important role [of the subject contract] . . . in the economic development of
the country and the magnitude of the financial consideration involved." We
concluded that, as a consequence, the disclosure provision in the
Constitution would constitute sufficient authority for upholding the petitioner's
standing.

Similarly, the instant petition is anchored on the right of the people to

information and access to official records, documents and papers a right
guaranteed under Section 7, Article III of the 1987 Constitution. Petitioner, a
former solicitor general, is a Filipino citizen. Because of the satisfaction of
the two basic requisites laid down by decisional law to sustain petitioner's
legal standing, i.e. (1) the enforcement of a public right (2) espoused by a
Filipino citizen, we rule that the petition at bar should be allowed.
In any event, the question on the standing of Petitioner Chavez is rendered
moot by the intervention of the Jopsons, who are among the legitimate
claimants to the Marcos wealth. The standing of the Jopsons is not seriously
contested by the solicitor general. Indeed, said petitioners-intervenors have a
legal interest in the subject matter of the instant case, since a distribution or
disposition of the Marcoses' ill-gotten properties may adversely affect the
satisfaction of their claims.
Second Procedural Issue:
The Court's Jurisdiction
Petitioner asserts that because this petition is an original action for
mandamus and one that is not intended to delay any proceeding in the
Sandiganbayan, its having been filed before this Court was proper. He
invokes Section 5, Article VIII of the Constitution, which confers upon the
Supreme Court original jurisdiction over petitions for prohibition and
mandamus.
The solicitor general, on the other hand, argues that the petition has been
erroneously brought before this Court, since there is neither a justiciable
controversy nor a violation of petitioner's rights by the PCGG. He alleges that
the assailed agreements are already the very lis mota in Sandiganbayan
Civil Case No. 0141, which has yet to dispose of the issue; thus, this petition
is premature. Furthermore, respondents themselves have opposed the
Marcos heirs' motion, filed in the graft court, for the approval of the subject
Agreements. Such opposition belies petitioner's claim that the government,

74
through respondents, has concluded a settlement with the Marcoses as
regards their alleged ill-gotten assets.
In Taada and Legaspi, we upheld therein petitioners' resort to a mandamus
proceeding, seeking to enforce a public right as well as to compel
performance of a public duty mandated by no less than the fundamental law.
23 Further, Section 5, Article VIII of the Constitution, expressly confers upon
the Supreme Court original jurisdiction over petitions for certiorari,
prohibition, mandamus, quo warranto and habeas corpus.
Respondents argue that petitioner should have properly sought relief before
the Sandiganbayan, particularly in Civil Case No. 0141, in which the
enforcement of the compromise Agreements is pending resolution. There
may seem to be some merit in such argument, if petitioner is merely seeking
to enjoin the enforcement of the compromise and/or to compel the PCGG to
disclose to the public the terms contained in said Agreements. However,
petitioner is here seeking the public disclose of "all negotiations and
agreement, be they ongoing or perfected, and documents related to or
relating to such negotiations and agreement between the PCGG and the
Marcos heirs."
In other words, this petition is not confined to the Agreements that have
already been drawn, but likewise to any other ongoing or future undertaking
towards any settlement on the alleged Marcos loot. Ineluctably, the core
issue boils down to the precise interpretation, in terms of scope, of the twin
constitutional provisions on "public transactions." This broad and prospective
relief sought by the instant petition brings it out of the realm of Civil Case No.
0141.
First Substantive Issue:
Public Disclosure of Terms of
Any Agreement, Perfected or Not

In seeking the public disclosure of negotiations and agreements pertaining to

a compromise settlement with the Marcoses as regards their alleged illgotten wealth, petitioner invokes the following provisions of the Constitution:
Sec. 7 [Article III]. The right of the people to information on matters of public
concern shall be recognized. Access to official records, and to documents,
and papers pertaining to official acts, transactions, or decisions, as well as to
government research data used as basis for policy development, shall be
afforded the citizen, subject to such limitations as may be provided by law.
Sec. 28 [Article II]. Subject to reasonable conditions prescribed by law, the
State adopts and implements a policy of full public disclosure of all its
transactions involving public interest.
Respondents' opposite view is that the above constitutional provisions refer
to completed and operative official acts, not to those still being considered.
As regards the assailed Agreements entered into by the PCGG with the
Marcoses, there is yet no right of action that has accrued, because said
Agreements have not been approved by the President, and the Marcos heirs
have failed to fulfill their express undertaking therein. Thus, the Agreements
have not become effective. Respondents add that they are not aware of any
ongoing negotiation for another compromise with the Marcoses regarding
their alleged ill-gotten assets.
The "information" and the "transactions" referred to in the subject provisions
of the Constitution have as yet no defined scope and extent. There are no
specific laws prescribing the exact limitations within which the right may be
exercised or the correlative state duty may be obliged. However, the
following are some of the recognized restrictions: (1) national security
matters and intelligence information, (2) trade secrets and banking
transactions, (3) criminal matters, and (4) other confidential information.
Limitations to the Right:
(1) National Security Matters

75
At the very least, this jurisdiction recognizes the common law holding that
there is a governmental privilege against public disclosure with respect to
state secrets regarding military, diplomatic and other national security
matters. 24 But where there is no need to protect such state secrets, the
privilege may not be invoked to withhold documents and other information,
25 provided that they are examined "in strict confidence" and given
"scrupulous protection."
Likewise, information on inter-government exchanges prior to the conclusion
of treaties and executive agreements may be subject to reasonable
safeguards for the sake of national interest. 26
(2) Trade Secrets and
Banking Transactions
The drafters of the Constitution also unequivocally affirmed that, aside from
national security matters and intelligence information, trade or industrial
secrets (pursuant to the Intellectual Property Code 27 and other related
laws) as well as banking transactions (pursuant to the Secrecy of Bank
Deposits Act 28) are also exempted from compulsory disclosure. 29
(3) Criminal Matters
Also excluded are classified law enforcement matters, such as those relating
to the apprehension, the prosecution and the detention of criminals, 30 which
courts may nor inquire into prior to such arrest, detention and prosecution.
Efforts at effective law enforcement would be seriously jeopardized by free
public access to, for example, police information regarding rescue
operations, the whereabouts of fugitives, or leads on covert criminal
activities.
(4) Other Confidential
Information

The Ethical Standards Act 31 further prohibits public officials and employees
from using or divulging "confidential or classified information officially known
to them by reason of their office and not made available to the public." 32
Other acknowledged limitations to information access include diplomatic
correspondence, closed door Cabinet meetings and executive sessions of
either house of Congress, as well as the internal deliberations of the
Supreme Court. 33
Scope: Matters of Public Concern and
Transactions Involving Public Interest
In Valmonte v. Belmonte Jr., 34 the Court emphasized that the information
sought must be "matters of public concern," access to which may be limited
by law. Similarly, the state policy of full public disclosure extends only to
"transactions involving public interest" and may also be "subject to
reasonable conditions prescribed by law." As to the meanings of the terms
"public interest" and "public concern," the Court, in Legaspi v. Civil Service
Commission, 35 elucidated:
In determining whether or not a particular information is of public concern
there is no rigid test which can be applied. "Public concern" like "public
interest" is a term that eludes exact definition. Both terms embrace a broad
spectrum of subjects which the public may want to know, either because
these directly affect their lives, or simply because such matters naturally
arouse the interest of an ordinary citizen. In the final analysis, it is for the
courts to determine on a case by case basis whether the matter at issue is of
interest or importance, as it relates to or affects the public.
Considered a public concern in the above-mentioned case was the
"legitimate concern of citizens to ensure that government positions requiring
civil service eligibility are occupied only by persons who are eligibles." So
was the need to give the general public adequate notification of various laws
that regulate and affect the actions and conduct of citizens, as held in
Taada. Likewise did the "public nature of the loanable funds of the GSIS

76
and the public office held by the alleged borrowers (members of the defunct
Batasang Pambansa)" qualify the information sought in Valmonte as matters
of public interest and concern. In Aquino-Sarmiento v. Morato, 36 the Court
also held that official acts of public officers done in pursuit if their official
functions are public in character; hence, the records pertaining to such
official acts and decisions are within the ambit of the constitutional right of
access to public records.
Under Republic Act No. 6713, public officials and employees are mandated
to "provide information on their policies and procedures in clear and
understandable language, [and] ensure openness of information, public
consultations and hearings whenever appropriate . . .," except when
"otherwise provided by law or when required by the public interest." In
particular, the law mandates free public access, at reasonable hours, to the
annual performance reports of offices and agencies of government and
government-owned or controlled corporations; and the statements of assets,
liabilities and financial disclosures of all public officials and employees. 37
In general, writings coming into the hands of public officers in connection
with their official functions must be accessible to the public, consistent with
the policy of transparency of governmental affairs. This principle is aimed at
affording the people an opportunity to determine whether those to whom they
have entrusted the affairs of the government are honesty, faithfully and
competently performing their functions as public servants. 38 Undeniably, the
essence of democracy lies in the free flow of thought; 39 but thoughts and
ideas must be well-informed so that the public would gain a better
perspective of vital issues confronting them and, thus, be able to criticize as
well as participate in the affairs of the government in a responsible,
reasonable and effective manner. Certainly, it is by ensuring an unfettered
and uninhibited exchange of ideas among a well-informed public that a
government remains responsive to the changes desired by the people. 40
The Nature of the Marcoses'

Alleged Ill-Gotten Wealth

We now come to the immediate matter under consideration.
Upon the departure from the country of the Marcos family and their cronies in
February 1986, the new government headed by President Corazon C.
Aquino was specifically mandated to "[r]ecover ill-gotten properties amassed
by the leaders and supporters of the previous regime and [to] protect the
interest of the people through orders of sequestration or freezing of assets or
accounts." 41 Thus, President Aquino's very first executive orders (which
partook of the nature of legislative enactments) dealt with the recovery of
these alleged ill-gotten properties.
Executive Order No. 1, promulgated on February 28, 1986, only two (2) days
after the Marcoses fled the country, created the PCGG which was primarily
tasked to assist the President in the recovery of vast government resources
allegedly amassed by former President Marcos, his immediate family,
relatives and close associates both here and abroad.
Under Executive Order No. 2, issued twelve (12) days later, all persons and
entities who had knowledge or possession of ill-gotten assets and properties
were warned and, under pain of penalties prescribed by law, prohibited from
concealing, transferring or dissipating them or from otherwise frustrating or
obstructing the recovery efforts of the government.
On May 7, 1986, another directive (EO No. 14) was issued giving additional
powers to the PCGG which, taking into account the overriding considerations
of national interest and national survival, required it to achieve expeditiously
and effectively its vital task of recovering ill-gotten wealth.
With such pronouncements of our government, whose authority emanates
from the people, there is no doubt that the recovery of the Marcoses' alleged
ill-gotten wealth is a matter of public concern and imbued with public interest.
42 We may also add that "ill-gotten wealth," by its very nature, assumes a
public character. Based on the aforementioned Executive Orders, "ill-gotten
wealth" refers to assets and properties purportedly acquired, directly or

77
indirectly, by former President Marcos, his immediate family, relatives and
close associates through or as a result of their improper or illegal use of
government funds or properties; or their having taken undue advantage of
their public office; or their use of powers, influences or relationships,
"resulting in their unjust enrichment and causing grave damage and
prejudice to the Filipino people and the Republic of the Philippines." Clearly,
the assets and properties referred to supposedly originated from the
government itself. To all intents and purposes, therefore, they belong to the
people. As such, upon reconveyance they will be returned to the public
treasury, subject only to the satisfaction of positive claims of certain persons
as may be adjudged by competent courts. Another declared overriding
consideration for the expeditious recovery of ill-gotten wealth is that it may
be used for national economic recovery.
We believe the foregoing disquisition settles the question of whether
petitioner has a right to respondents' disclosure of any agreement that may
be arrived at concerning the Marcoses' purported ill-gotten wealth.
Access to Information
on Negotiating Terms
But does the constitutional provision likewise guarantee access to
information regarding ongoing negotiations or proposals prior to the final
agreement? This same clarification was sought and clearly addressed by the
constitutional commissioners during their deliberations, which we quote
hereunder: 43
MR. SUAREZ. And when we say "transactions" which should be
distinguished from contracts, agreements, or treaties or whatever, does the
Gentleman refer to the steps leading to the consummation of the contract, or
does he refer to the contract itself?

MR. OPLE. The "transactions" used here, I suppose, is generic and,

therefore, it can cover both steps leading to a contract, and already a
consummated contract, Mr. Presiding Officer.
MR. SUAREZ. This contemplates inclusion of negotiations leading to the
consummation of the transaction?
MR. OPLE. Yes, subject to reasonable safeguards on the national interest.
Considering the intent of the Constitution, we believe that it is incumbent
upon the PCGG and its officers, as well as other government
representatives, to disclose sufficient public information on any proposed
settlement they have decided to take up with the ostensible owners and
holders of ill-gotten wealth. Such information, though, must pertain to definite
propositions of the government, not necessarily to intra-agency or interagency recommendations or communications 44 during the stage when
common assertions are still in the process of being formulated or are in the
"exploratory" stage. There is a need, of course, to observe the same
restrictions on disclosure of information in general, as discussed earlier
such as on matters involving national security, diplomatic or foreign relations,
intelligence and other classified information.
Second Substantive Issue:
Legal Restraints on a Marcos-PCGG Compromise
Petitioner lastly contends that any compromise agreement between the
government and the Marcoses will be a virtual condonation of all the alleged
wrongs done by them, as well as an unwarranted permission to commit graft
and corruption.
Respondents, for their part, assert that there is no legal restraint on entering
into a compromise with the Marcos heirs, provided the agreement does not
violate any law.

78
Prohibited Compromises

Criminal Prosecution

In general, the law encourages compromises in civil cases, except with

regard to the following matters: (1) the civil status of persons, (2) the validity
of a marriage or a legal separation, (3) any ground for legal separation, (4)
future support, (5) the jurisdiction of courts, and (6) future legitimate. 45 And
like any other contract, the terms and conditions of a compromise must not
be contrary to law, morals, good customs, public policy or public order. 46 A
compromise is binding and has the force of law between the parties, 47
unless the consent of a party is vitiated such as by mistake, fraud,
violence, intimidation or undue influence or when there is forgery, or if the
terms of the settlment are so palpably unconscionable. In the latter
instances, the agreement may be invalidated by the courts. 48

However, any compromise relating to the civil liability arising from an offense
does not automatically terminate the criminal proceeding against or
extinguish the criminal liability of the malefactor. 55 While a compromise in
civil suits is expressly authorized by law, there is no similar general sanction
as regards criminal liability. The authority must be specifically conferred. In
the present case, the power to grant criminal immunity was confered on
PCGG by Section 5 of EO No. 14, as amended by EO No. 14-A, whci
provides:

Effect of Compromise on Civil Actions

One of the consequences of a compromise, and usually its primary object, is
to avoid or to end a litigation. 49 In fact, the law urges courts to persuade the
parties in a civil case to agree to a fair settlement. 50 As an incentive, a court
may mitigate damages to be paid by a losing party who shows a sincere
desire to compromise. 51
In Republic & Campos Jr. v. Sandiganbayan, 52 which affirmed the grant by
the PCGG of civil and criminal immunity to Jose Y. Campos and the family,
the Court held that in the absence an express prohibition, the rule on
compromises in civil actions under the Civil Code is applicable to PCGG
cases. Such principle is pursuant to the objectives of EO No. 14 particularly
the just and expeditious recovery of ill-gotten wealth, so that it may be used
to hasten economic recovery. The same principle was upheld in Benedicto v.
Board of Administrators of Television Stations RPN, BBC and IBC 53 and
Republic v. Benedicto, 54 which ruled in favor of the validity of the PCGG
compromise agreement with Roberto S. Benedicto.
Immunity from

Sec. 5. The President Commission on Good Government is authorized to

grant immunity from criminal prosecution to any person who provides
information or testifies in any investigation conducted by such Commission to
establish the unlawful manner in which any respondent, defendant or
accused has acquired or accumulated the property or properties in question
in any case where such information or testimony is necessary to ascertain or
prove the latter's guilt or his civil liability. The immunity thereby granted shall
be continued to protect the witness who repeats such testimony before the
Sandiganbayan when required to do so by the latter or by the Commission.
The above provision specifies that the PCGG may exercise such authority
under these conditions: (1) the person to whom criminal immunity is granted
provides information or testifies in an investigation conducted by the
Commission; (2) the information or testimony pertains to the unlawful
manner in which the respondent, defendant or accused acquired or
accumulated ill-gotten property; and (3) such information or testimony is
necessary to ascertain or prove guilt or civil liability of such individual. From
the wording of the law, it can be easily deducted that the person referred to is
a witness in the proceeding, not the principal respondent, defendant or
accused.
Thus, in the case of Jose Y. Campos, the grant of both civil and criminal
immunity to him and his family was "[i]n consideration of the full cooperation
of Mr. Jose Y. Campos [with] this Commission, his voluntary surrender of the
properties and assets [] disclosed and declared by him to belong to

79
deposed President Ferdinand E. Marcos [] to the Government of the
Republic of the Philippines[;] his full, complete and truthful disclosures[;] and
his commitment to pay a sum of money as determined by the Philippine
Government." 56 Moreover, the grant of criminal immunity to the Camposes
and the Benedictos was limited to acts and omissions prior to February 25,
1996. At the time such immunity was granted, no criminal cases have yet
been filed against them before the competent court.
Validity of the PCGG-Marcos
Compromise Agreements
Going now to the subject General and Supplemental Agreements between
the PCGG and the Marcos heirs, a cursory perusal thereof reveals serious
legal flaws. First, the Agreements do not conform to the above requirements
of EO Nos. 14 and 14-A. We believe that criminal immunity under Section 5
cannot be granted to the Marcoses, who are the principal defendants in the
spate of ill-gotten wealth cases now pending before the Sandiganbayan. As
stated earlier, the provision is applicable mainly to witnesses who provide
information or testify against a respondent, defendant or accused in an illgotten wealth case.
While the General Agreement states that the Marcoses "shall provide the
[government] assistance by way of testimony or deposition on any
information [they] may have that could shed light on the cases being pursued
by the [government] against other parties," 57 the clause does not fully
comply with the law. Its inclusion in the Agreement may have been only an
afterthought, conceived in pro forma compliance with Section 5 of EO No.
14, as amended. There is no indication whatsoever that any of the Marcos
heirs has indeed provided vital information against any respondent or
defendant as to the manner in which the latter may have unlawfully acquired
public property.

Second, under Item No. 2 of the General Agreement, the PCGG commits to
exempt from all forms of taxes the properties to be retained by the Marcos
heirs. This is a clear violation of the Construction. The power to tax and to
grant tax exemptions is vested in the Congress and, to a certain extent, in
the local legislative bodies. 58 Section 28 (4), Article VI of the Constitution,
specifically provides: "No law granting any tax exemption shall be passed
without the concurrence of a majority of all the Member of the Congress."
The PCGG has absolutely no power to grant tax exemptions, even under the
cover of its authority to compromise ill-gotten wealth cases.
Even granting that Congress enacts a law exempting the Marcoses form
paying taxes on their properties, such law will definitely not pass the test of
the equal protection clause under the Bill of Rights. Any special grant of tax
exemption in favor only of the Marcos heirs will constitute class legislation. It
will also violate the constitutional rule that "taxation shall be uniform and
equitable." 59
Neither can the stipulation be construed to fall within the power of the
commissioner of internal revenue to compromise taxes. Such authority may
be exercised only when (1) there is reasonable doubt as to the validity of the
claim against the taxpayer, and (2) the taxpayer's financial position
demonstrates a clear inability to pay. 60 Definitely, neither requisite is
present in the case of the Marcoses, because under the Agreement they are
effectively conceding the validity of the claims against their properties, part of
which they will be allowed to retain. Nor can the PCGG grant of tax
exemption fall within the power of the commissioner to abate or cancel a tax
liability. This power can be exercised only when (1) the tax appears to be
unjustly or excessively assessed, or (2) the administration and collection
costs involved do not justify the collection of the tax due. 61 In this instance,
the cancellation of tax liability is done even before the determination of the
amount due. In any event, criminal violations of the Tax Code, for which legal
actions have been filed in court or in which fraud is involved, cannot be
compromised. 62

80
Third, the government binds itself to cause the dismissal of all cases against
the Marcos heirs, pending before the Sandiganbayan and other court. 63
This is a direct encroachment on judicial powers, particularly in regard to
criminal jurisdiction. Well-settled is the doctrine that once a case has been
filed before a court of competent jurisdiction, the matter of its dismissal or
pursuance lies within the full discretion and control of the judge. In a criminal
case, the manner in which the prosecution is handled, including the matter of
whom to present as witnesses, may lie within the sound discretion of the
government prosecution; 64 but the court decides, based on the evidence
proffered, in what manner it will dispose of the case. Jurisdiction, once
acquired by the trial court, is not lost despite a resolution, even by the justice
secretary, to withdraw the information or to dismiss the complaint. 65 The
prosecution's motion to withdraw or to dismiss is not the least binding upon
the court. On the contrary, decisional rules require the trial court to make its
own evaluation of the merit of the case, because granting such motion is
equivalent to effecting a disposition of the case itself. 66
Thus, the PCGG, as the government prosecutor of ill-gotten wealth cases,
cannot guarantee the dismissal of all such criminal cases against the
Marcoses pending in the courts, for said dismissal is not within its sole power
and discretion.
Fourth, the government also waives all claims and counterclaims, "whether
past, present, or future, matured or inchoate," against the Marcoses. 67
Again, this ill-encompassing stipulation is contrary to law. Under the Civil
Code, an action for future fraud may not be waived. 68 The stipulation in the
Agreement does not specify the exact scope of future claims against the
Marcoses that the government thereby relinquishes. Such vague and broad
statement may well be interpreted to include all future illegal acts of any of
the Marcos heirs, practically giving them a license to perpetrate fraud against
the government without any liability at all. This is a palpable violation of the
due process and equal protection guarantees of the Constitution. It
effectively ensconces the Marcoses beyond the reach of the law. It also sets
a dangerous precedent for public accountability. It is a virtual warrant for
public officials to amass public funds illegally, since there is an open option

to compromise their liability in exchange for only a portion of their ill-gotten

wealth.
Fifth, the Agreements do not provide for a definite or determinable period
within which the parties shall fulfill their respective prestations. It may take a
lifetime before the Marcoses submit an inventory of their total assets.
Sixth, the Agreements do not state with specificity the standards for
determining which assets shall be forfeited by the government and which
shall be retained by the Marcoses. While the Supplemental Agreement
provides that the Marcoses shall be entitled to 25 per cent of the $356 million
Swiss deposits (less government recovery expenses), such sharing
arrangement pertains only to the said deposits. No similar splitting scheme is
defined with respect to the other properties. Neither is there, anywhere in the
Agreements, a statement of the basis for the 25-75 percent sharing ratio.
Public officers entering into an arrangement appearing to be manifestly and
grossly disadvantageous to the government, in violation of the Ati-Graft and
Corruption Practice Act, 69 invite their indictment for corruption under the
said law.
Finally, the absence of then President Ramos' approval of the principal
Agreement, an express condition therein, renders the compromise
incomplete and unenforceable. Nevertheless, as detailed above, even if such
approval were obtained, the Agreements would still not be valid.
From the foregoing disquisition, it is crystal clear to the Court that the
General and Supplemental Agreements, both dated December 28, 1993,
which the PCGG entered into with the Marcos heirs, are violative of the
Constitution and the laws aforementioned.

WHEREFORE, the petition is GRANTED. The General and Supplemental

Agreement dated December 28, 1993, which PCGG and the Marcos heirs
entered into are hereby declared NULL AND VOID for being contrary to law
and the Constitution. Respondent PCGG, its officers and all government

81
functionaries and officials who are or may be directly ot indirectly involved in
the recovery of the alleged ill-gotten wealth of the Marcoses and their
associates are DIRECTED to disclose to the public the terms of any
proposed compromise settlment, as well as the final agreement, relating to
such alleged ill-gotten wealth, in accordance with the discussions embodied
in this Decision. No pronouncement as to cost.
SO ORDERED.
Davide, Jr., C.J., Melo and Quisumbing, JJ., concur.
Vitug, J., Please see separate opinion.

82
The Province of North Cotabato v. Government
GR 183591, October 14, 2008

DECISION
CARPIO MORALES, J.:
Subject of these consolidated cases is the extent of the powers of the
President in pursuing the peace process. While the facts surrounding this
controversy center on the armed conflict in Mindanao between the
government and the Moro Islamic Liberation Front (MILF), the legal issue
involved has a bearing on all areas in the country where there has been a
long-standing armed conflict. Yet again, the Court is tasked to perform a
delicate balancing act. It must uncompromisingly delineate the bounds within
which the President may lawfully exercise her discretion, but it must do so in
strict adherence to the Constitution, lest its ruling unduly restricts the
freedom of action vested by that same Constitution in the Chief Executive
precisely to enable her to pursue the peace process effectively.
I. FACTUAL ANTECEDENTS OF THE PETITIONS
On August 5, 2008, the Government of the Republic of the Philippines (GRP)
and the MILF, through the Chairpersons of their respective peace negotiating
panels, were scheduled to sign a Memorandum of Agreement on the
Ancestral Domain (MOA-AD) Aspect of the GRP-MILF Tripoli Agreement on
Peace of 2001 in Kuala Lumpur, Malaysia.
The MILF is a rebel group which was established in March 1984 when, under
the leadership of the late Salamat Hashim, it splintered from the Moro
National Liberation Front (MNLF) then headed by Nur Misuari, on the
ground, among others, of what Salamat perceived to be the manipulation of
the MNLF away from an Islamic basis towards Marxist-Maoist orientations.1

The signing of the MOA-AD between the GRP and the MILF was not to
materialize, however, for upon motion of petitioners, specifically those who
filed their cases before the scheduled signing of the MOA-AD, this Court
issued a Temporary Restraining Order enjoining the GRP from signing the
same.
The MOA-AD was preceded by a long process of negotiation and the
concluding of several prior agreements between the two parties beginning in
1996, when the GRP-MILF peace negotiations began. On July 18, 1997, the
GRP and MILF Peace Panels signed the Agreement on General Cessation
of Hostilities. The following year, they signed the General Framework of
Agreement of Intent on August 27, 1998.
The Solicitor General, who represents respondents, summarizes the MOAAD by stating that the same contained, among others, the commitment of the
parties to pursue peace negotiations, protect and respect human rights,
negotiate with sincerity in the resolution and pacific settlement of the conflict,
and refrain from the use of threat or force to attain undue advantage while
the peace negotiations on the substantive agenda are on-going.2
Early on, however, it was evident that there was not going to be any smooth
sailing in the GRP-MILF peace process. Towards the end of 1999 up to early
2000, the MILF attacked a number of municipalities in Central Mindanao
and, in March 2000, it took control of the town hall of Kauswagan, Lanao del
Norte.3 In response, then President Joseph Estrada declared and carried out
an "all-out-war" against the MILF.
When President Gloria Macapagal-Arroyo assumed office, the military
offensive against the MILF was suspended and the government sought a
resumption of the peace talks. The MILF, according to a leading MILF
member, initially responded with deep reservation, but when President
Arroyo asked the Government of Malaysia through Prime Minister Mahathir
Mohammad to help convince the MILF to return to the negotiating table, the
MILF convened its Central Committee to seriously discuss the matter and,
eventually, decided to meet with the GRP.4

83
The parties met in Kuala Lumpur on March 24, 2001, with the talks being
facilitated by the Malaysian government, the parties signing on the same
date the Agreement on the General Framework for the Resumption of Peace
Talks Between the GRP and the MILF. The MILF thereafter suspended all its
military actions.5
Formal peace talks between the parties were held in Tripoli, Libya from June
20-22, 2001, the outcome of which was the GRP-MILF Tripoli Agreement on
Peace (Tripoli Agreement 2001) containing the basic principles and agenda
on the following aspects of the negotiation: Security Aspect, Rehabilitation
Aspect, and Ancestral Domain Aspect. With regard to the Ancestral Domain
Aspect, the parties in Tripoli Agreement 2001 simply agreed "that the same
be discussed further by the Parties in their next meeting."
A second round of peace talks was held in Cyberjaya, Malaysia on August 57, 2001 which ended with the signing of the Implementing Guidelines on the
Security Aspect of the Tripoli Agreement 2001 leading to a ceasefire status
between the parties. This was followed by the Implementing Guidelines on
the Humanitarian Rehabilitation and Development Aspects of the Tripoli
Agreement 2001, which was signed on May 7, 2002 at Putrajaya, Malaysia.
Nonetheless, there were many incidence of violence between government
forces and the MILF from 2002 to 2003.
Meanwhile, then MILF Chairman Salamat Hashim passed away on July 13,
2003 and he was replaced by Al Haj Murad, who was then the chief peace
negotiator of the MILF. Murad's position as chief peace negotiator was taken
over by Mohagher Iqbal.6
In 2005, several exploratory talks were held between the parties in Kuala
Lumpur, eventually leading to the crafting of the draft MOA-AD in its final
form, which, as mentioned, was set to be signed last August 5, 2008.
II. STATEMENT OF THE PROCEEDINGS

Before the Court is what is perhaps the most contentious "consensus" ever
embodied in an instrument - the MOA-AD which is assailed principally by the
present petitions bearing docket numbers 183591, 183752, 183893, 183951
and 183962.
Commonly impleaded as respondents are the GRP Peace Panel on
Ancestral Domain7 and the Presidential Adviser on the Peace Process
(PAPP) Hermogenes Esperon, Jr.
On July 23, 2008, the Province of North Cotabato8 and Vice-Governor
Emmanuel Piol filed a petition, docketed as G.R. No. 183591, for
Mandamus and Prohibition with Prayer for the Issuance of Writ of
Preliminary Injunction and Temporary Restraining Order.9 Invoking the right
to information on matters of public concern, petitioners seek to compel
respondents to disclose and furnish them the complete and official copies of
the MOA-AD including its attachments, and to prohibit the slated signing of
the MOA-AD, pending the disclosure of the contents of the MOA-AD and the
holding of a public consultation thereon. Supplementarily, petitioners pray
that the MOA-AD be declared unconstitutional.10
This initial petition was followed by another one, docketed as G.R. No.
183752, also for Mandamus and Prohibition11 filed by the City of
Zamboanga,12 Mayor Celso Lobregat, Rep. Ma. Isabelle Climaco and Rep.
Erico Basilio Fabian who likewise pray for similar injunctive reliefs.
Petitioners herein moreover pray that the City of Zamboanga be excluded
from the Bangsamoro Homeland and/or Bangsamoro Juridical Entity and, in
the alternative, that the MOA-AD be declared null and void.
By Resolution of August 4, 2008, the Court issued a Temporary Restraining
Order commanding and directing public respondents and their agents to
cease and desist from formally signing the MOA-AD.13 The Court also
required the Solicitor General to submit to the Court and petitioners the
official copy of the final draft of the MOA-AD,14 to which she complied.15

84
Meanwhile, the City of Iligan16 filed a petition for Injunction and/or
Declaratory Relief, docketed as G.R. No. 183893, praying that respondents
be enjoined from signing the MOA-AD or, if the same had already been
signed, from implementing the same, and that the MOA-AD be declared
unconstitutional. Petitioners herein additionally implead Executive Secretary
Eduardo Ermita as respondent.

the Muslim Multi-Sectoral Movement for Peace and Development (MMMPD)

filed their respective Comments-in-Intervention.

The Province of Zamboanga del Norte,17 Governor Rolando Yebes, ViceGovernor Francis Olvis, Rep. Cecilia Jalosjos-Carreon, Rep. Cesar Jalosjos,
and the members18 of the Sangguniang Panlalawigan of Zamboanga del
Norte filed on August 15, 2008 a petition for Certiorari, Mandamus and
Prohibition,19 docketed as G.R. No. 183951. They pray, inter alia, that the
MOA-AD be declared null and void and without operative effect, and that
respondents be enjoined from executing the MOA-AD.

Respondents, by Manifestation and Motion of August 19, 2008, stated that

the Executive Department shall thoroughly review the MOA-AD and pursue
further negotiations to address the issues hurled against it, and thus moved
to dismiss the cases. In the succeeding exchange of pleadings, respondents'
motion was met with vigorous opposition from petitioners.

On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino Pimentel
III filed a petition for Prohibition,20 docketed as G.R. No. 183962, praying for
a judgment prohibiting and permanently enjoining respondents from formally
signing and executing the MOA-AD and or any other agreement derived
therefrom or similar thereto, and nullifying the MOA-AD for being
unconstitutional and illegal. Petitioners herein additionally implead as
respondent the MILF Peace Negotiating Panel represented by its Chairman
Mohagher Iqbal.

1. Whether the petitions have become moot and academic

Various parties moved to intervene and were granted leave of court to file
their petitions-/comments-in-intervention. Petitioners-in-Intervention include
Senator Manuel A. Roxas, former Senate President Franklin Drilon and Atty.
Adel Tamano, the City of Isabela21 and Mayor Cherrylyn Santos-Akbar, the
Province of Sultan Kudarat22 and Gov. Suharto Mangudadatu, the
Municipality of Linamon in Lanao del Norte,23 Ruy Elias Lopez of Davao City
and of the Bagobo tribe, Sangguniang Panlungsod member Marino Ridao
and businessman Kisin Buxani, both of Cotabato City; and lawyers Carlo
Gomez, Gerardo Dilig, Nesario Awat, Joselito Alisuag, Richalex Jagmis, all of
Palawan City. The Muslim Legal Assistance Foundation, Inc. (Muslaf) and

2. Whether the constitutionality and the legality of the MOA is ripe for
adjudication;

By subsequent Resolutions, the Court ordered the consolidation of the

petitions. Respondents filed Comments on the petitions, while some of
petitioners submitted their respective Replies.

The cases were heard on oral argument on August 15, 22 and 29, 2008 that
tackled the following principal issues:

(i) insofar as the mandamus aspect is concerned, in view of the disclosure of

official copies of the final draft of the Memorandum of Agreement (MOA); and
(ii) insofar as the prohibition aspect involving the Local Government Units is
concerned, if it is considered that consultation has become fait accompli with
the finalization of the draft;

3. Whether respondent Government of the Republic of the Philippines Peace

Panel committed grave abuse of discretion amounting to lack or excess of
jurisdiction when it negotiated and initiated the MOA vis--vis ISSUES Nos. 4
and 5;

4. Whether there is a violation of the people's right to information on matters

of public concern (1987 Constitution, Article III, Sec. 7) under a state policy
of full disclosure of all its transactions involving public interest (1987

85
Constitution, Article II, Sec. 28) including public consultation under Republic
Act No. 7160 (LOCAL GOVERNMENT CODE OF 1991)[;]
If it is in the affirmative, whether prohibition under Rule 65 of the 1997 Rules
of Civil Procedure is an appropriate remedy;
5. Whether by signing the MOA, the Government of the Republic of the
Philippines would be BINDING itself
a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a
separate state, or a juridical, territorial or political subdivision not recognized
by law;
b) to revise or amend the Constitution and existing laws to conform to the
MOA;
c) to concede to or recognize the claim of the Moro Islamic Liberation Front
for ancestral domain in violation of Republic Act No. 8371 (THE
INDIGENOUS PEOPLES RIGHTS ACT OF 1997), particularly Section 3(g) &
Chapter VII (DELINEATION, RECOGNITION OF ANCESTRAL DOMAINS)[;]
If in the affirmative, whether the Executive Branch has the authority to so
bind the Government of the Republic of the Philippines;
6. Whether the inclusion/exclusion of the Province of North Cotabato, Cities
of Zamboanga, Iligan and Isabela, and the Municipality of Linamon, Lanao
del Norte in/from the areas covered by the projected Bangsamoro Homeland
is a justiciable question; and
7. Whether desistance from signing the MOA derogates any prior valid
commitments of the Government of the Republic of the Philippines.24

The Court, thereafter, ordered the parties to submit their respective

Memoranda. Most of the parties submitted their memoranda on time.
III. OVERVIEW OF THE MOA-AD

As a necessary backdrop to the consideration of the objections raised in the

subject five petitions and six petitions-in-intervention against the MOA-AD,
as well as the two comments-in-intervention in favor of the MOA-AD, the
Court takes an overview of the MOA.
The MOA-AD identifies the Parties to it as the GRP and the MILF.
Under the heading "Terms of Reference" (TOR), the MOA-AD includes not
only four earlier agreements between the GRP and MILF, but also two
agreements between the GRP and the MNLF: the 1976 Tripoli Agreement,
and the Final Peace Agreement on the Implementation of the 1976 Tripoli
Agreement, signed on September 2, 1996 during the administration of
President Fidel Ramos.
The MOA-AD also identifies as TOR two local statutes - the organic act for
the Autonomous Region in Muslim Mindanao (ARMM)25 and the Indigenous
Peoples Rights Act (IPRA),26 and several international law instruments - the
ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in
Independent Countries in relation to the UN Declaration on the Rights of the
Indigenous Peoples, and the UN Charter, among others.
The MOA-AD includes as a final TOR the generic category of "compact
rights entrenchment emanating from the regime of dar-ul-mua'hada (or
territory under compact) and dar-ul-sulh (or territory under peace agreement)
that partakes the nature of a treaty device."
During the height of the Muslim Empire, early Muslim jurists tended to see
the world through a simple dichotomy: there was the dar-ul-Islam (the Abode
of Islam) and dar-ul-harb (the Abode of War). The first referred to those lands
where Islamic laws held sway, while the second denoted those lands where
Muslims were persecuted or where Muslim laws were outlawed or
ineffective.27 This way of viewing the world, however, became more
complex through the centuries as the Islamic world became part of the
international community of nations.

86
As Muslim States entered into treaties with their neighbors, even with distant
States and inter-governmental organizations, the classical division of the
world into dar-ul-Islam and dar-ul-harb eventually lost its meaning. New
terms were drawn up to describe novel ways of perceiving non-Muslim
territories. For instance, areas like dar-ul-mua'hada (land of compact) and
dar-ul-sulh (land of treaty) referred to countries which, though under a
secular regime, maintained peaceful and cooperative relations with Muslim
States, having been bound to each other by treaty or agreement. Dar-ulaman (land of order), on the other hand, referred to countries which, though
not bound by treaty with Muslim States, maintained freedom of religion for
Muslims.28
It thus appears that the "compact rights entrenchment" emanating from the
regime of dar-ul-mua'hada and dar-ul-sulh simply refers to all other
agreements between the MILF and the Philippine government - the
Philippines being the land of compact and peace agreement - that partake of
the nature of a treaty device, "treaty" being broadly defined as "any solemn
agreement in writing that sets out understandings, obligations, and benefits
for both parties which provides for a framework that elaborates the principles
declared in the [MOA-AD]."29
The MOA-AD states that the Parties "HAVE AGREED AND
ACKNOWLEDGED AS FOLLOWS," and starts with its main body.
The main body of the MOA-AD is divided into four strands, namely, Concepts
and Principles, Territory, Resources, and Governance.
A. CONCEPTS AND PRINCIPLES
This strand begins with the statement that it is "the birthright of all Moros and
all Indigenous peoples of Mindanao to identify themselves and be accepted
as Bangsamoros.'" It defines "Bangsamoro people" as the natives or original
inhabitants of Mindanao and its adjacent islands including Palawan and the
Sulu archipelago at the time of conquest or colonization, and their
descendants whether mixed or of full blood, including their spouses.30

Thus, the concept of "Bangsamoro," as defined in this strand of the MOAAD, includes not only "Moros" as traditionally understood even by
Muslims,31 but all indigenous peoples of Mindanao and its adjacent islands.
The MOA-AD adds that the freedom of choice of indigenous peoples shall be
respected. What this freedom of choice consists in has not been specifically
defined.
The MOA-AD proceeds to refer to the "Bangsamoro homeland," the
ownership of which is vested exclusively in the Bangsamoro people by virtue
of their prior rights of occupation.32 Both parties to the MOA-AD
acknowledge that ancestral domain does not form part of the public
domain.33
The Bangsamoro people are acknowledged as having the right to selfgovernance, which right is said to be rooted on ancestral territoriality
exercised originally under the suzerain authority of their sultanates and the
Pat a Pangampong ku Ranaw. The sultanates were described as states or
"karajaan/kadatuan" resembling a body politic endowed with all the elements
of a nation-state in the modern sense.34
The MOA-AD thus grounds the right to self-governance of the Bangsamoro
people on the past suzerain authority of the sultanates. As gathered, the
territory defined as the Bangsamoro homeland was ruled by several
sultanates and, specifically in the case of the Maranao, by the Pat a
Pangampong ku Ranaw, a confederation of independent principalities
(pangampong) each ruled by datus and sultans, none of whom was supreme
over the others.35
The MOA-AD goes on to describe the Bangsamoro people as "the First
Nation' with defined territory and with a system of government having
entered into treaties of amity and commerce with foreign nations."

The term "First Nation" is of Canadian origin referring to the indigenous

peoples of that territory, particularly those known as Indians. In Canada,

87
each of these indigenous peoples is equally entitled to be called "First
Nation," hence, all of them are usually described collectively by the plural
"First Nations."36 To that extent, the MOA-AD, by identifying the
Bangsamoro people as "the First Nation" - suggesting its exclusive
entitlement to that designation - departs from the Canadian usage of the
term.
The MOA-AD then mentions for the first time the "Bangsamoro Juridical
Entity" (BJE) to which it grants the authority and jurisdiction over the
Ancestral Domain and Ancestral Lands of the Bangsamoro.37
B. TERRITORY
The territory of the Bangsamoro homeland is described as the land mass as
well as the maritime, terrestrial, fluvial and alluvial domains, including the
aerial domain and the atmospheric space above it, embracing the MindanaoSulu-Palawan geographic region.38
More specifically, the core of the BJE is defined as the present geographic
area of the ARMM - thus constituting the following areas: Lanao del Sur,
Maguindanao, Sulu, Tawi-Tawi, Basilan, and Marawi City. Significantly, this
core also includes certain municipalities of Lanao del Norte that voted for
inclusion in the ARMM in the 2001 plebiscite.39
Outside of this core, the BJE is to cover other provinces, cities, municipalities
and barangays, which are grouped into two categories, Category A and
Category B. Each of these areas is to be subjected to a plebiscite to be held
on different dates, years apart from each other. Thus, Category A areas are
to be subjected to a plebiscite not later than twelve (12) months following the
signing of the MOA-AD.40 Category B areas, also called "Special
Intervention Areas," on the other hand, are to be subjected to a plebiscite
twenty-five (25) years from the signing of a separate agreement - the
Comprehensive Compact.41
The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction over
all natural resources within its "internal waters," defined as extending fifteen

(15) kilometers from the coastline of the BJE area;42 that the BJE shall also
have "territorial waters," which shall stretch beyond the BJE internal waters
up to the baselines of the Republic of the Philippines (RP) south east and
south west of mainland Mindanao; and that within these territorial waters, the
BJE and the "Central Government" (used interchangeably with RP) shall
exercise joint jurisdiction, authority and management over all natural
resources.43 Notably, the jurisdiction over the internal waters is not similarly
described as "joint."
The MOA-AD further provides for the sharing of minerals on the territorial
waters between the Central Government and the BJE, in favor of the latter,
through production sharing and economic cooperation agreement.44 The
activities which the Parties are allowed to conduct on the territorial waters
are enumerated, among which are the exploration and utilization of natural
resources, regulation of shipping and fishing activities, and the enforcement
of police and safety measures.45 There is no similar provision on the sharing
of minerals and allowed activities with respect to the internal waters of the
BJE.
C. RESOURCES
The MOA-AD states that the BJE is free to enter into any economic
cooperation and trade relations with foreign countries and shall have the
option to establish trade missions in those countries. Such relationships and
understandings, however, are not to include aggression against the GRP.
The BJE may also enter into environmental cooperation agreements.46
The external defense of the BJE is to remain the duty and obligation of the
Central Government. The Central Government is also bound to "take
necessary steps to ensure the BJE's participation in international meetings
and events" like those of the ASEAN and the specialized agencies of the UN.
The BJE is to be entitled to participate in Philippine official missions and
delegations for the negotiation of border agreements or protocols for
environmental protection and equitable sharing of incomes and revenues
involving the bodies of water adjacent to or between the islands forming part
of the ancestral domain.47

88
With regard to the right of exploring for, producing, and obtaining all potential
sources of energy, petroleum, fossil fuel, mineral oil and natural gas, the
jurisdiction and control thereon is to be vested in the BJE "as the party
having control within its territorial jurisdiction." This right carries the proviso
that, "in times of national emergency, when public interest so requires," the
Central Government may, for a fixed period and under reasonable terms as
may be agreed upon by both Parties, assume or direct the operation of such
resources.48

between the Central Government

The sharing between the Central Government and the BJE of total
production pertaining to natural resources is to be 75:25 in favor of the
BJE.49

The MOA-AD provides that its provisions requiring "amendments to the

existing legal framework" shall take effect upon signing of the
Comprehensive Compact and upon effecting the aforesaid amendments,
with due regard to the non-derogation of prior agreements and within the
stipulated timeframe to be contained in the Comprehensive Compact. As will
be discussed later, much of the present controversy hangs on the legality of
this provision.

The MOA-AD provides that legitimate grievances of the Bangsamoro people

arising from any unjust dispossession of their territorial and proprietary
rights, customary land tenures, or their marginalization shall be
acknowledged. Whenever restoration is no longer possible, reparation is to
be in such form as mutually determined by the Parties.50
The BJE may modify or cancel the forest concessions, timber licenses,
contracts or agreements, mining concessions, Mineral Production and
Sharing Agreements (MPSA), Industrial Forest Management Agreements
(IFMA), and other land tenure instruments granted by the Philippine
Government, including those issued by the present ARMM.51
D. GOVERNANCE
The MOA-AD binds the Parties to invite a multinational third-party to observe
and monitor the implementation of the Comprehensive Compact. This
compact is to embody the "details for the effective enforcement" and "the
mechanisms and modalities for the actual implementation" of the MOA-AD.
The MOA-AD explicitly provides that the participation of the third party shall
not in any way affect the status of the relationship between the Central
Government and the BJE.52
The "associative" relationship

and the BJE

The MOA-AD describes the relationship of the Central Government and the
BJE as "associative," characterized by shared authority and responsibility.
And it states that the structure of governance is to be based on executive,
legislative, judicial, and administrative institutions with defined powers and
functions in the Comprehensive Compact.

The BJE is granted the power to build, develop and maintain its own
institutions inclusive of civil service, electoral, financial and banking,
education, legislation, legal, economic, police and internal security force,
judicial system and correctional institutions, the details of which shall be
discussed in the negotiation of the comprehensive compact.
As stated early on, the MOA-AD was set to be signed on August 5, 2008 by
Rodolfo Garcia and Mohagher Iqbal, Chairpersons of the Peace Negotiating
Panels of the GRP and the MILF, respectively. Notably, the penultimate
paragraph of the MOA-AD identifies the signatories as "the representatives
of the Parties," meaning the GRP and MILF themselves, and not merely of
the negotiating panels.53 In addition, the signature page of the MOA-AD
states that it is "WITNESSED BY" Datuk Othman Bin Abd Razak, Special
Adviser to the Prime Minister of Malaysia, "ENDORSED BY" Ambassador
Sayed Elmasry, Adviser to Organization of the Islamic Conference (OIC)
Secretary General and Special Envoy for Peace Process in Southern
Philippines, and SIGNED "IN THE PRESENCE OF" Dr. Albert G. Romulo,
Secretary of Foreign Affairs of RP and Dato' Seri Utama Dr. Rais Bin Yatim,

89
Minister of Foreign Affairs, Malaysia, all of whom were scheduled to sign the
Agreement last August 5, 2008.

immediately in danger of sustaining some direct injury as a result of the act

complained of.62

Annexed to the MOA-AD are two documents containing the respective lists
cum maps of the provinces, municipalities, and barangays under Categories
A and B earlier mentioned in the discussion on the strand on TERRITORY.

The Solicitor General argues that there is no justiciable controversy that is

ripe for judicial review in the present petitions, reasoning that

IV. PROCEDURAL ISSUES

A. RIPENESS
The power of judicial review is limited to actual cases or controversies.54
Courts decline to issue advisory opinions or to resolve hypothetical or
feigned problems, or mere academic questions.55 The limitation of the
power of judicial review to actual cases and controversies defines the role
assigned to the judiciary in a tripartite allocation of power, to assure that the
courts will not intrude into areas committed to the other branches of
government.56
An actual case or controversy involves a conflict of legal rights, an assertion
of opposite legal claims, susceptible of judicial resolution as distinguished
from a hypothetical or abstract difference or dispute. There must be a
contrariety of legal rights that can be interpreted and enforced on the basis of
existing law and jurisprudence.57 The Court can decide the constitutionality
of an act or treaty only when a proper case between opposing parties is
submitted for judicial determination.58
Related to the requirement of an actual case or controversy is the
requirement of ripeness. A question is ripe for adjudication when the act
being challenged has had a direct adverse effect on the individual
challenging it.59 For a case to be considered ripe for adjudication, it is a
prerequisite that something had then been accomplished or performed by
either branch before a court may come into the picture,60 and the petitioner
must allege the existence of an immediate or threatened injury to itself as a
result of the challenged action.61 He must show that he has sustained or is

The unsigned MOA-AD is simply a list of consensus points subject to further

negotiations and legislative enactments as well as constitutional processes
aimed at attaining a final peaceful agreement. Simply put, the MOA-AD
remains to be a proposal that does not automatically create legally
demandable rights and obligations until the list of operative acts required
have been duly complied with. x x x
xxxx
In the cases at bar, it is respectfully submitted that this Honorable Court has
no authority to pass upon issues based on hypothetical or feigned
constitutional problems or interests with no concrete bases. Considering the
preliminary character of the MOA-AD, there are no concrete acts that could
possibly violate petitioners' and intervenors' rights since the acts complained
of are mere contemplated steps toward the formulation of a final peace
agreement. Plainly, petitioners and intervenors' perceived injury, if at all, is
merely imaginary and illusory apart from being unfounded and based on
mere conjectures. (Underscoring supplied)
The Solicitor General cites63 the following provisions of the MOA-AD:
TERRITORY
xxxx
2. Toward this end, the Parties enter into the following stipulations:

xxxx

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d. Without derogating from the requirements of prior agreements, the
Government stipulates to conduct and deliver, using all possible legal
measures, within twelve (12) months following the signing of the MOA-AD, a
plebiscite covering the areas as enumerated in the list and depicted in the
map as Category A attached herein (the "Annex"). The Annex constitutes an
integral part of this framework agreement. Toward this end, the Parties shall
endeavor to complete the negotiations and resolve all outstanding issues on
the Comprehensive Compact within fifteen (15) months from the signing of
the MOA-AD.
xxxx
GOVERNANCE
xxxx
7. The Parties agree that mechanisms and modalities for the actual
implementation of this MOA-AD shall be spelt out in the Comprehensive
Compact to mutually take such steps to enable it to occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing legal
framework shall come into force upon the signing of a Comprehensive
Compact and upon effecting the necessary changes to the legal framework
with due regard to non-derogation of prior agreements and within the
stipulated timeframe to be contained in the Comprehensive Compact.64
(Underscoring supplied)
The Solicitor General's arguments fail to persuade.
Concrete acts under the MOA-AD are not necessary to render the present
controversy ripe. In Pimentel, Jr. v. Aguirre,65 this Court held:
x x x [B]y the mere enactment of the questioned law or the approval of the
challenged action, the dispute is said to have ripened into a judicial
controversy even without any other overt act. Indeed, even a singular
violation of the Constitution and/or the law is enough to awaken judicial duty.

xxxx
By the same token, when an act of the President, who in our constitutional
scheme is a coequal of Congress, is seriously alleged to have infringed the
Constitution and the laws x x x settling the dispute becomes the duty and the
responsibility of the courts.66
In Santa Fe Independent School District v. Doe,67 the United States
Supreme Court held that the challenge to the constitutionality of the school's
policy allowing student-led prayers and speeches before games was ripe for
adjudication, even if no public prayer had yet been led under the policy,
because the policy was being challenged as unconstitutional on its face.68
That the law or act in question is not yet effective does not negate ripeness.
For example, in New York v. United States,69 decided in 1992, the United
States Supreme Court held that the action by the State of New York
challenging the provisions of the Low-Level Radioactive Waste Policy Act
was ripe for adjudication even if the questioned provision was not to take
effect until January 1, 1996, because the parties agreed that New York had
to take immediate action to avoid the provision's consequences.70
The present petitions pray for Certiorari,71 Prohibition, and Mandamus.
Certiorari and Prohibition are remedies granted by law when any tribunal,
board or officer has acted, in the case of certiorari, or is proceeding, in the
case of prohibition, without or in excess of its jurisdiction or with grave abuse
of discretion amounting to lack or excess of jurisdiction.72 Mandamus is a
remedy granted by law when any tribunal, corporation, board, officer or
person unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or station, or
unlawfully excludes another from the use or enjoyment of a right or office to
which such other is entitled.73 Certiorari, Mandamus and Prohibition are
appropriate remedies to raise constitutional issues and to review and/or
prohibit/nullify, when proper, acts of legislative and executive officials.74
The authority of the GRP Negotiating Panel is defined by Executive Order
No. 3 (E.O. No. 3), issued on February 28, 2001.75 The said executive order

91
requires that "[t]he government's policy framework for peace, including the
systematic approach and the administrative structure for carrying out the
comprehensive peace process x x x be governed by this Executive Order."76
The present petitions allege that respondents GRP Panel and PAPP Esperon
drafted the terms of the MOA-AD without consulting the local government
units or communities affected, nor informing them of the proceedings. As will
be discussed in greater detail later, such omission, by itself, constitutes a
departure by respondents from their mandate under E.O. No. 3.
Furthermore, the petitions allege that the provisions of the MOA-AD violate
the Constitution. The MOA-AD provides that "any provisions of the MOA-AD
requiring amendments to the existing legal framework shall come into force
upon the signing of a Comprehensive Compact and upon effecting the
necessary changes to the legal framework," implying an amendment of the
Constitution to accommodate the MOA-AD. This stipulation, in effect,
guaranteed to the MILF the amendment of the Constitution. Such act
constitutes another violation of its authority. Again, these points will be
discussed in more detail later.
As the petitions allege acts or omissions on the part of respondent that
exceed their authority, by violating their duties under E.O. No. 3 and the
provisions of the Constitution and statutes, the petitions make a prima facie
case for Certiorari, Prohibition, and Mandamus, and an actual case or
controversy ripe for adjudication exists. When an act of a branch of
government is seriously alleged to have infringed the Constitution, it
becomes not only the right but in fact the duty of the judiciary to settle the
dispute.77
B. LOCUS STANDI

For a party to have locus standi, one must allege "such a personal stake in
the outcome of the controversy as to assure that concrete adverseness

which sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult constitutional questions."78
Because constitutional cases are often public actions in which the relief
sought is likely to affect other persons, a preliminary question frequently
arises as to this interest in the constitutional question raised.79
When suing as a citizen, the person complaining must allege that he has
been or is about to be denied some right or privilege to which he is lawfully
entitled or that he is about to be subjected to some burdens or penalties by
reason of the statute or act complained of.80 When the issue concerns a
public right, it is sufficient that the petitioner is a citizen and has an interest in
the execution of the laws.81
For a taxpayer, one is allowed to sue where there is an assertion that public
funds are illegally disbursed or deflected to an illegal purpose, or that there is
a wastage of public funds through the enforcement of an invalid or
unconstitutional law.82 The Court retains discretion whether or not to allow a
taxpayer's suit.83
In the case of a legislator or member of Congress, an act of the Executive
that injures the institution of Congress causes a derivative but nonetheless
substantial injury that can be questioned by legislators. A member of the
House of Representatives has standing to maintain inviolate the
prerogatives, powers and privileges vested by the Constitution in his
office.84
An organization may be granted standing to assert the rights of its
members,85 but the mere invocation by the Integrated Bar of the Philippines
or any member of the legal profession of the duty to preserve the rule of law
does not suffice to clothe it with standing.86

As regards a local government unit (LGU), it can seek relief in order to

protect or vindicate an interest of its own, and of the other LGUs.87

92
Intervenors, meanwhile, may be given legal standing upon showing of facts
that satisfy the requirements of the law authorizing intervention,88 such as a
legal interest in the matter in litigation, or in the success of either of the
parties.
In any case, the Court has discretion to relax the procedural technicality on
locus standi, given the liberal attitude it has exercised, highlighted in the
case of David v. Macapagal-Arroyo,89 where technicalities of procedure
were brushed aside, the constitutional issues raised being of paramount
public interest or of transcendental importance deserving the attention of the
Court in view of their seriousness, novelty and weight as precedents.90 The
Court's forbearing stance on locus standi on issues involving constitutional
issues has for its purpose the protection of fundamental rights.
In not a few cases, the Court, in keeping with its duty under the Constitution
to determine whether the other branches of government have kept
themselves within the limits of the Constitution and the laws and have not
abused the discretion given them, has brushed aside technical rules of
procedure.91
In the petitions at bar, petitioners Province of North Cotabato (G.R. No.
183591) Province of Zamboanga del Norte (G.R. No. 183951), City of Iligan
(G.R. No. 183893) and City of Zamboanga (G.R. No. 183752) and
petitioners-in-intervention Province of Sultan Kudarat, City of Isabela and
Municipality of Linamon have locus standi in view of the direct and
substantial injury that they, as LGUs, would suffer as their territories, whether
in whole or in part, are to be included in the intended domain of the BJE.
These petitioners allege that they did not vote for their inclusion in the ARMM
which would be expanded to form the BJE territory. Petitioners' legal
standing is thus beyond doubt.

In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar Binay and Aquilino
Pimentel III would have no standing as citizens and taxpayers for their failure
to specify that they would be denied some right or privilege or there would be

wastage of public funds. The fact that they are a former Senator, an
incumbent mayor of Makati City, and a resident of Cagayan de Oro,
respectively, is of no consequence. Considering their invocation of the
transcendental importance of the issues at hand, however, the Court grants
them standing.
Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as
taxpayers, assert that government funds would be expended for the conduct
of an illegal and unconstitutional plebiscite to delineate the BJE territory. On
that score alone, they can be given legal standing. Their allegation that the
issues involved in these petitions are of "undeniable transcendental
importance" clothes them with added basis for their personality to intervene
in these petitions.
With regard to Senator Manuel Roxas, his standing is premised on his being
a member of the Senate and a citizen to enforce compliance by respondents
of the public's constitutional right to be informed of the MOA-AD, as well as
on a genuine legal interest in the matter in litigation, or in the success or
failure of either of the parties. He thus possesses the requisite standing as
an intervenor.
With respect to Intervenors Ruy Elias Lopez, as a former congressman of
the 3rd district of Davao City, a taxpayer and a member of the Bagobo tribe;
Carlo B. Gomez, et al., as members of the IBP Palawan chapter, citizens and
taxpayers; Marino Ridao, as taxpayer, resident and member of the
Sangguniang Panlungsod of Cotabato City; and Kisin Buxani, as taxpayer,
they failed to allege any proper legal interest in the present petitions. Just the
same, the Court exercises its discretion to relax the procedural technicality
on locus standi given the paramount public interest in the issues at hand.

Intervening respondents Muslim Multi-Sectoral Movement for Peace and

Development, an advocacy group for justice and the attainment of peace and
prosperity in Muslim Mindanao; and Muslim Legal Assistance Foundation
Inc., a non-government organization of Muslim lawyers, allege that they

93
stand to be benefited or prejudiced, as the case may be, in the resolution of
the petitions concerning the MOA-AD, and prays for the denial of the
petitions on the grounds therein stated. Such legal interest suffices to clothe
them with standing.
B. MOOTNESS
Respondents insist that the present petitions have been rendered moot with
the satisfaction of all the reliefs prayed for by petitioners and the subsequent
pronouncement of the Executive Secretary that "[n]o matter what the
Supreme Court ultimately decides[,] the government will not sign the
MOA."92
In lending credence to this policy decision, the Solicitor General points out
that the President had already disbanded the GRP Peace Panel.93
In David v. Macapagal-Arroyo,94 this Court held that the "moot and
academic" principle not being a magical formula that automatically dissuades
courts in resolving a case, it will decide cases, otherwise moot and
academic, if it finds that (a) there is a grave violation of the Constitution;95
(b) the situation is of exceptional character and paramount public interest is
involved;96 (c) the constitutional issue raised requires formulation of
controlling principles to guide the bench, the bar, and the public;97 and (d)
the case is capable of repetition yet evading review.98
Another exclusionary circumstance that may be considered is where there is
a voluntary cessation of the activity complained of by the defendant or doer.
Thus, once a suit is filed and the doer voluntarily ceases the challenged
conduct, it does not automatically deprive the tribunal of power to hear and
determine the case and does not render the case moot especially when the
plaintiff seeks damages or prays for injunctive relief against the possible
recurrence of the violation.99
The present petitions fall squarely into these exceptions to thus thrust them
into the domain of judicial review. The grounds cited above in David are just
as applicable in the present cases as they were, not only in David, but also in

Province of Batangas v. Romulo100 and Manalo v. Calderon101 where the

Court similarly decided them on the merits, supervening events that would
ordinarily have rendered the same moot notwithstanding.
Petitions not mooted
Contrary then to the asseverations of respondents, the non-signing of the
MOA-AD and the eventual dissolution of the GRP Peace Panel did not moot
the present petitions. It bears emphasis that the signing of the MOA-AD did
not push through due to the Court's issuance of a Temporary Restraining
Order.
Contrary too to respondents' position, the MOA-AD cannot be considered a
mere "list of consensus points," especially given its nomenclature, the need
to have it signed or initialed by all the parties concerned on August 5, 2008,
and the far-reaching Constitutional implications of these "consensus points,"
foremost of which is the creation of the BJE.
In fact, as what will, in the main, be discussed, there is a commitment on the
part of respondents to amend and effect necessary changes to the existing
legal framework for certain provisions of the MOA-AD to take effect.
Consequently, the present petitions are not confined to the terms and
provisions of the MOA-AD, but to other on-going and future negotiations and
agreements necessary for its realization. The petitions have not, therefore,
been rendered moot and academic simply by the public disclosure of the
MOA-AD,102 the manifestation that it will not be signed as well as the
disbanding of the GRP Panel not withstanding.
Petitions are imbued with paramount public interest
There is no gainsaying that the petitions are imbued with paramount public
interest, involving a significant part of the country's territory and the wideranging political modifications of affected LGUs. The assertion that the MOAAD is subject to further legal enactments including possible Constitutional
amendments more than ever provides impetus for the Court to formulate

94
controlling principles to guide the bench, the bar, the public and, in this case,
the government and its negotiating entity.
Respondents cite Suplico v. NEDA, et al.103 where the Court did not
"pontificat[e] on issues which no longer legitimately constitute an actual case
or controversy [as this] will do more harm than good to the nation as a
whole."
The present petitions must be differentiated from Suplico. Primarily, in
Suplico, what was assailed and eventually cancelled was a stand-alone
government procurement contract for a national broadband network involving
a one-time contractual relation between two parties-the government and a
private foreign corporation. As the issues therein involved specific
government procurement policies and standard principles on contracts, the
majority opinion in Suplico found nothing exceptional therein, the factual
circumstances being peculiar only to the transactions and parties involved in
the controversy.

Surely, the present MOA-AD can be renegotiated or another one will be

drawn up to carry out the Ancestral Domain Aspect of the Tripoli Agreement
2001, in another or in any form, which could contain similar or significantly
drastic provisions. While the Court notes the word of the Executive Secretary
that the government "is committed to securing an agreement that is both
constitutional and equitable because that is the only way that long-lasting
peace can be assured," it is minded to render a decision on the merits in the
present petitions to formulate controlling principles to guide the bench, the
bar, the public and, most especially, the government in negotiating with the
MILF regarding Ancestral Domain.

The MOA-AD is part of a series of agreements

Respondents invite the Court's attention to the separate opinion of then

Chief Justice Artemio Panganiban in Sanlakas v. Reyes104 in which he
stated that the doctrine of "capable of repetition yet evading review" can
override mootness, "provided the party raising it in a proper case has been
and/or continue to be prejudiced or damaged as a direct result of their
issuance." They contend that the Court must have jurisdiction over the
subject matter for the doctrine to be invoked.

In the present controversy, the MOA-AD is a significant part of a series of

agreements necessary to carry out the Tripoli Agreement 2001. The MOAAD which dwells on the Ancestral Domain Aspect of said Tripoli Agreement is
the third such component to be undertaken following the implementation of
the Security Aspect in August 2001 and the Humanitarian, Rehabilitation and
Development Aspect in May 2002.

The present petitions all contain prayers for Prohibition over which this Court
exercises original jurisdiction. While G.R. No. 183893 (City of Iligan v. GRP)
is a petition for Injunction and Declaratory Relief, the Court will treat it as one
for Prohibition as it has far reaching implications and raises questions that
need to be resolved.105 At all events, the Court has jurisdiction over most if
not the rest of the petitions.

Accordingly, even if the Executive Secretary, in his Memorandum of August

28, 2008 to the Solicitor General, has stated that "no matter what the
Supreme Court ultimately decides[,] the government will not sign the MOA[AD]," mootness will not set in in light of the terms of the Tripoli Agreement
2001.

Indeed, the present petitions afford a proper venue for the Court to again
apply the doctrine immediately referred to as what it had done in a number of
landmark cases.106 There is a reasonable expectation that petitioners,
particularly the Provinces of North Cotabato, Zamboanga del Norte and
Sultan Kudarat, the Cities of Zamboanga, Iligan and Isabela, and the
Municipality of Linamon, will again be subjected to the same problem in the
future as respondents' actions are capable of repetition, in another or any
form.

Need to formulate principles-guidelines

95
It is with respect to the prayers for Mandamus that the petitions have
become moot, respondents having, by Compliance of August 7, 2008,
provided this Court and petitioners with official copies of the final draft of the
MOA-AD and its annexes. Too, intervenors have been furnished, or have
procured for themselves, copies of the MOA-AD.
V. SUBSTANTIVE ISSUES
As culled from the Petitions and Petitions-in-Intervention, there are basically
two SUBSTANTIVE issues to be resolved, one relating to the manner in
which the MOA-AD was negotiated and finalized, the other relating to its
provisions, viz:
1. Did respondents violate constitutional and statutory provisions on public
consultation and the right to information when they negotiated and later
initialed the MOA-AD?
2. Do the contents of the MOA-AD violate the Constitution and the laws?
ON THE FIRST SUBSTANTIVE ISSUE
Petitioners invoke their constitutional right to information on matters of public
concern, as provided in Section 7, Article III on the Bill of Rights:
Sec. 7. The right of the people to information on matters of public concern
shall be recognized. Access to official records, and to documents, and
papers pertaining to official acts, transactions, or decisions, as well as to
government research data used as basis for policy development, shall be
afforded the citizen, subject to such limitations as may be provided by
law.107
As early as 1948, in Subido v. Ozaeta,108 the Court has recognized the
statutory right to examine and inspect public records, a right which was
eventually accorded constitutional status.

The right of access to public documents, as enshrined in both the 1973

Constitution and the 1987 Constitution, has been recognized as a selfexecutory constitutional right.109
In the 1976 case of Baldoza v. Hon. Judge Dimaano,110 the Court ruled that
access to public records is predicated on the right of the people to acquire
information on matters of public concern since, undoubtedly, in a democracy,
the pubic has a legitimate interest in matters of social and political
significance.
x x x The incorporation of this right in the Constitution is a recognition of the
fundamental role of free exchange of information in a democracy. There can
be no realistic perception by the public of the nation's problems, nor a
meaningful democratic decision-making if they are denied access to
information of general interest. Information is needed to enable the members
of society to cope with the exigencies of the times. As has been aptly
observed: "Maintaining the flow of such information depends on protection
for both its acquisition and its dissemination since, if either process is
interrupted, the flow inevitably ceases." x x x111
In the same way that free discussion enables members of society to cope
with the exigencies of their time, access to information of general interest
aids the people in democratic decision-making by giving them a better
perspective of the vital issues confronting the nation112 so that they may be
able to criticize and participate in the affairs of the government in a
responsible, reasonable and effective manner. It is by ensuring an unfettered
and uninhibited exchange of ideas among a well-informed public that a
government remains responsive to the changes desired by the people.113
The MOA-AD is a matter of public concern
That the subject of the information sought in the present cases is a matter of
public concern114 faces no serious challenge. In fact, respondents admit
that the MOA-AD is indeed of public concern.115 In previous cases, the
Court found that the regularity of real estate transactions entered in the
Register of Deeds,116 the need for adequate notice to the public of the

96
various laws,117 the civil service eligibility of a public employee,118 the
proper management of GSIS funds allegedly used to grant loans to public
officials,119 the recovery of the Marcoses' alleged ill-gotten wealth,120 and
the identity of party-list nominees,121 among others, are matters of public
concern. Undoubtedly, the MOA-AD subject of the present cases is of public
concern, involving as it does the sovereignty and territorial integrity of the
State, which directly affects the lives of the public at large.
Matters of public concern covered by the right to information include steps
and negotiations leading to the consummation of the contract. In not
distinguishing as to the executory nature or commercial character of
agreements, the Court has categorically ruled:
x x x [T]he right to information "contemplates inclusion of negotiations
leading to the consummation of the transaction." Certainly, a consummated
contract is not a requirement for the exercise of the right to information.
Otherwise, the people can never exercise the right if no contract is
consummated, and if one is consummated, it may be too late for the public
to expose its defects.
Requiring a consummated contract will keep the public in the dark until the
contract, which may be grossly disadvantageous to the government or even
illegal, becomes fait accompli. This negates the State policy of full
transparency on matters of public concern, a situation which the framers of
the Constitution could not have intended. Such a requirement will prevent the
citizenry from participating in the public discussion of any proposed contract,
effectively truncating a basic right enshrined in the Bill of Rights. We can
allow neither an emasculation of a constitutional right, nor a retreat by the
State of its avowed "policy of full disclosure of all its transactions involving
public interest."122 (Emphasis and italics in the original)
Intended as a "splendid symmetry"123 to the right to information under the
Bill of Rights is the policy of public disclosure under Section 28, Article II of
the Constitution reading:

Sec. 28. Subject to reasonable conditions prescribed by law, the State

adopts and implements a policy of full public disclosure of all its transactions
involving public interest.124
The policy of full public disclosure enunciated in above-quoted Section 28
complements the right of access to information on matters of public concern
found in the Bill of Rights. The right to information guarantees the right of the
people to demand information, while Section 28 recognizes the duty of
officialdom to give information even if nobody demands.125
The policy of public disclosure establishes a concrete ethical principle for the
conduct of public affairs in a genuinely open democracy, with the people's
right to know as the centerpiece. It is a mandate of the State to be
accountable by following such policy.126 These provisions are vital to the
exercise of the freedom of expression and essential to hold public officials at
all times accountable to the people.127
Whether Section 28 is self-executory, the records of the deliberations of the
Constitutional Commission so disclose:
MR. SUAREZ. And since this is not self-executory, this policy will not be
enunciated or will not be in force and effect until after Congress shall have
provided it.
MR. OPLE. I expect it to influence the climate of public ethics immediately
but, of course, the implementing law will have to be enacted by Congress,
Mr. Presiding Officer.128
The following discourse, after Commissioner Hilario Davide, Jr., sought
clarification on the issue, is enlightening.
MR. DAVIDE. I would like to get some clarifications on this. Mr. Presiding
Officer, did I get the Gentleman correctly as having said that this is not a selfexecuting provision? It would require a legislation by Congress to
implement?

97
MR. OPLE. Yes. Originally, it was going to be self-executing, but I accepted
an amendment from Commissioner Regalado, so that the safeguards on
national interest are modified by the clause "as may be provided by law"
MR. DAVIDE. But as worded, does it not mean that this will immediately take
effect and Congress may provide for reasonable safeguards on the sole
ground national interest?
MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier that it should
immediately influence the climate of the conduct of public affairs but, of
course, Congress here may no longer pass a law revoking it, or if this is
approved, revoking this principle, which is inconsistent with this policy.129
(Emphasis supplied)
Indubitably, the effectivity of the policy of public disclosure need not await the
passing of a statute. As Congress cannot revoke this principle, it is merely
directed to provide for "reasonable safeguards." The complete and effective
exercise of the right to information necessitates that its complementary
provision on public disclosure derive the same self-executory nature. Since
both provisions go hand-in-hand, it is absurd to say that the broader130 right
to information on matters of public concern is already enforceable while the
correlative duty of the State to disclose its transactions involving public
interest is not enforceable until there is an enabling law. Respondents cannot
thus point to the absence of an implementing legislation as an excuse in not
effecting such policy.
An essential element of these freedoms is to keep open a continuing
dialogue or process of communication between the government and the
people. It is in the interest of the State that the channels for free political
discussion be maintained to the end that the government may perceive and
be responsive to the people's will.131 Envisioned to be corollary to the twin
rights to information and disclosure is the design for feedback mechanisms.

MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will the people
be able to participate? Will the government provide feedback mechanisms so
that the people can participate and can react where the existing media
facilities are not able to provide full feedback mechanisms to the
government? I suppose this will be part of the government implementing
operational mechanisms.
MR. OPLE. Yes. I think through their elected representatives and that is how
these courses take place. There is a message and a feedback, both ways.
xxxx
MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make one last
sentence?
I think when we talk about the feedback network, we are not talking about
public officials but also network of private business o[r] community-based
organizations that will be reacting. As a matter of fact, we will put more
credence or credibility on the private network of volunteers and voluntary
community-based organizations. So I do not think we are afraid that there
will be another OMA in the making.132 (Emphasis supplied)
The imperative of a public consultation, as a species of the right to
information, is evident in the "marching orders" to respondents. The
mechanics for the duty to disclose information and to conduct public
consultation regarding the peace agenda and process is manifestly provided
by E.O. No. 3.133 The preambulatory clause of E.O. No. 3 declares that
there is a need to further enhance the contribution of civil society to the
comprehensive peace process by institutionalizing the people's participation.
One of the three underlying principles of the comprehensive peace process
is that it "should be community-based, reflecting the sentiments, values and
principles important to all Filipinos" and "shall be defined not by the
government alone, nor by the different contending groups only, but by all
Filipinos as one community."134 Included as a component of the
comprehensive peace process is consensus-building and empowerment for

98
peace, which includes "continuing consultations on both national and local
levels to build consensus for a peace agenda and process, and the
mobilization and facilitation of people's participation in the peace proces."135
Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite to
effectuate "continuing" consultations, contrary to respondents' position that
plebiscite is "more than sufficient consultation."136
Further, E.O. No. 3 enumerates the functions and responsibilities of the
PAPP, one of which is to "[c]onduct regular dialogues with the National
Peace Forum (NPF) and other peace partners to seek relevant information,
comments, recommendations as well as to render appropriate and timely
reports on the progress of the comprehensive peace process."137 E.O. No.
3 mandates the establishment of the NPF to be "the principal forum for the
PAPP to consult with and seek advi[c]e from the peace advocates, peace
partners and concerned sectors of society on both national and local levels,
on the implementation of the comprehensive peace process, as well as for
government[-]civil society dialogue and consensus-building on peace agenda
and initiatives."138
In fine, E.O. No. 3 establishes petitioners' right to be consulted on the peace
agenda, as a corollary to the constitutional right to information and
disclosure.
PAPP Esperon committed grave abuse of discretion
The PAPP committed grave abuse of discretion when he failed to carry out
the pertinent consultation. The furtive process by which the MOA-AD was
designed and crafted runs contrary to and in excess of the legal authority,
and amounts to a whimsical, capricious, oppressive, arbitrary and despotic
exercise thereof.
The Court may not, of course, require the PAPP to conduct the consultation
in a particular way or manner. It may, however, require him to comply with
the law and discharge the functions within the authority granted by the
President.139

Petitioners are not claiming a seat at the negotiating table, contrary to

respondents' retort in justifying the denial of petitioners' right to be consulted.
Respondents' stance manifests the manner by which they treat the salient
provisions of E.O. No. 3 on people's participation. Such disregard of the
express mandate of the President is not much different from superficial
conduct toward token provisos that border on classic lip service.140 It
illustrates a gross evasion of positive duty and a virtual refusal to perform the
duty enjoined.
As for respondents' invocation of the doctrine of executive privilege, it is not
tenable under the premises. The argument defies sound reason when
contrasted with E.O. No. 3's explicit provisions on continuing consultation
and dialogue on both national and local levels. The executive order even
recognizes the exercise of the public's right even before the GRP makes its
official recommendations or before the government proffers its definite
propositions.141 It bear emphasis that E.O. No. 3 seeks to elicit relevant
advice, information, comments and recommendations from the people
through dialogue.
AT ALL EVENTS, respondents effectively waived the defense of executive
privilege in view of their unqualified disclosure of the official copies of the
final draft of the MOA-AD. By unconditionally complying with the Court's
August 4, 2008 Resolution, without a prayer for the document's disclosure in
camera, or without a manifestation that it was complying therewith ex
abundante ad cautelam.
Petitioners' assertion that the Local Government Code (LGC) of 1991
declares it a State policy to "require all national agencies and offices to
conduct periodic consultations with appropriate local government units, nongovernmental and people's organizations, and other concerned sectors of
the community before any project or program is implemented in their
respective jurisdictions"142 is well-taken. The LGC chapter on
intergovernmental relations puts flesh into this avowed policy:

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Prior Consultations Required. - No project or program shall be implemented
by government authorities unless the consultations mentioned in Sections 2
(c) and 26 hereof are complied with, and prior approval of the sanggunian
concerned is obtained: Provided, That occupants in areas where such
projects are to be implemented shall not be evicted unless appropriate
relocation sites have been provided, in accordance with the provisions of the
Constitution.143 (Italics and underscoring supplied)

make a sweeping declaration on ancestral domain, without complying with

the IPRA, which is cited as one of the TOR of the MOA-AD, respondents
clearly transcended the boundaries of their authority. As it seems, even the
heart of the MOA-AD is still subject to necessary changes to the legal
framework. While paragraph 7 on Governance suspends the effectivity of all
provisions requiring changes to the legal framework, such clause is itself
invalid, as will be discussed in the following section.

In Lina, Jr. v. Hon. Pao,144 the Court held that the above-stated policy and
above-quoted provision of the LGU apply only to national programs or
projects which are to be implemented in a particular local community. Among
the programs and projects covered are those that are critical to the
environment and human ecology including those that may call for the
eviction of a particular group of people residing in the locality where these
will be implemented.145 The MOA-AD is one peculiar program that
unequivocally and unilaterally vests ownership of a vast territory to the
Bangsamoro people,146 which could pervasively and drastically result to the
diaspora or displacement of a great number of inhabitants from their total
environment.

Indeed, ours is an open society, with all the acts of the government subject to
public scrutiny and available always to public cognizance. This has to be so
if the country is to remain democratic, with sovereignty residing in the people
and all government authority emanating from them.149

With respect to the indigenous cultural communities/indigenous peoples

(ICCs/IPs), whose interests are represented herein by petitioner Lopez and
are adversely affected by the MOA-AD, the ICCs/IPs have, under the IPRA,
the right to participate fully at all levels of decision-making in matters which
may affect their rights, lives and destinies.147 The MOA-AD, an instrument
recognizing ancestral domain, failed to justify its non-compliance with the
clear-cut mechanisms ordained in said Act,148 which entails, among other
things, the observance of the free and prior informed consent of the
ICCs/IPs.
Notably, the IPRA does not grant the Executive Department or any
government agency the power to delineate and recognize an ancestral
domain claim by mere agreement or compromise. The recognition of the
ancestral domain is the raison d'etre of the MOA-AD, without which all other
stipulations or "consensus points" necessarily must fail. In proceeding to

ON THE SECOND SUBSTANTIVE ISSUE

With regard to the provisions of the MOA-AD, there can be no question that
they cannot all be accommodated under the present Constitution and laws.
Respondents have admitted as much in the oral arguments before this
Court, and the MOA-AD itself recognizes the need to amend the existing
legal framework to render effective at least some of its provisions.
Respondents, nonetheless, counter that the MOA-AD is free of any legal
infirmity because any provisions therein which are inconsistent with the
present legal framework will not be effective until the necessary changes to
that framework are made. The validity of this argument will be considered
later. For now, the Court shall pass upon how
The MOA-AD is inconsistent with the Constitution and laws as presently
worded.
In general, the objections against the MOA-AD center on the extent of the
powers conceded therein to the BJE. Petitioners assert that the powers
granted to the BJE exceed those granted to any local government under
present laws, and even go beyond those of the present ARMM. Before
assessing some of the specific powers that would have been vested in the
BJE, however, it would be useful to turn first to a general idea that serves as
a unifying link to the different provisions of the MOA-AD, namely, the

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international law concept of association. Significantly, the MOA-AD explicitly
alludes to this concept, indicating that the Parties actually framed its
provisions with it in mind.
Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on
RESOURCES, and paragraph 4 on GOVERNANCE. It is in the last
mentioned provision, however, that the MOA-AD most clearly uses it to
describe the envisioned relationship between the BJE and the Central
Government.

For purposes of illustration, the Republic of the Marshall Islands and the
Federated States of Micronesia (FSM), formerly part of the U.S.administered Trust Territory of the Pacific Islands,151 are associated states
of the U.S. pursuant to a Compact of Free Association. The currency in these
countries is the U.S. dollar, indicating their very close ties with the U.S., yet
they issue their own travel documents, which is a mark of their statehood.
Their international legal status as states was confirmed by the UN Security
Council and by their admission to UN membership.

4. The relationship between the Central Government and the Bangsamoro

juridical entity shall be associative characterized by shared authority and
responsibility with a structure of governance based on executive, legislative,
judicial and administrative institutions with defined powers and functions in
the comprehensive compact. A period of transition shall be established in a
comprehensive peace compact specifying the relationship between the
Central Government and the BJE. (Emphasis and underscoring supplied)

According to their compacts of free association, the Marshall Islands and the
FSM generally have the capacity to conduct foreign affairs in their own name
and right, such capacity extending to matters such as the law of the sea,
marine resources, trade, banking, postal, civil aviation, and cultural relations.
The U.S. government, when conducting its foreign affairs, is obligated to
consult with the governments of the Marshall Islands or the FSM on matters
which it (U.S. government) regards as relating to or affecting either
government.

The nature of the "associative" relationship may have been intended to be

defined more precisely in the still to be forged Comprehensive Compact.
Nonetheless, given that there is a concept of "association" in international
law, and the MOA-AD - by its inclusion of international law instruments in its
TOR- placed itself in an international legal context, that concept of
association may be brought to bear in understanding the use of the term
"associative" in the MOA-AD.

In the event of attacks or threats against the Marshall Islands or the FSM,
the U.S. government has the authority and obligation to defend them as if
they were part of U.S. territory. The U.S. government, moreover, has the
option of establishing and using military areas and facilities within these
associated states and has the right to bar the military personnel of any third
country from having access to these territories for military purposes.

Keitner and Reisman state that

[a]n association is formed when two states of unequal power voluntarily
establish durable links. In the basic model, one state, the associate,
delegates certain responsibilities to the other, the principal, while maintaining
its international status as a state. Free associations represent a middle
ground between integration and independence. x x x150 (Emphasis and
underscoring supplied)

It bears noting that in U.S. constitutional and international practice, free

association is understood as an international association between
sovereigns. The Compact of Free Association is a treaty which is
subordinate to the associated nation's national constitution, and each party
may terminate the association consistent with the right of independence. It
has been said that, with the admission of the U.S.-associated states to the
UN in 1990, the UN recognized that the American model of free association
is actually based on an underlying status of independence.152

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In international practice, the "associated state" arrangement has usually
been used as a transitional device of former colonies on their way to full
independence. Examples of states that have passed through the status of
associated states as a transitional phase are Antigua, St. Kitts-NevisAnguilla, Dominica, St. Lucia, St. Vincent and Grenada. All have since
become independent states.153
Back to the MOA-AD, it contains many provisions which are consistent with
the international legal concept of association, specifically the following: the
BJE's capacity to enter into economic and trade relations with foreign
countries, the commitment of the Central Government to ensure the BJE's
participation in meetings and events in the ASEAN and the specialized UN
agencies, and the continuing responsibility of the Central Government over
external defense. Moreover, the BJE's right to participate in Philippine official
missions bearing on negotiation of border agreements, environmental
protection, and sharing of revenues pertaining to the bodies of water
adjacent to or between the islands forming part of the ancestral domain,
resembles the right of the governments of FSM and the Marshall Islands to
be consulted by the U.S. government on any foreign affairs matter affecting
them.
These provisions of the MOA indicate, among other things, that the Parties
aimed to vest in the BJE the status of an associated state or, at any rate, a
status closely approximating it.
The concept of association is not recognized under the present Constitution
No province, city, or municipality, not even the ARMM, is recognized under
our laws as having an "associative" relationship with the national
government. Indeed, the concept implies powers that go beyond anything
ever granted by the Constitution to any local or regional government. It also
implies the recognition of the associated entity as a state. The Constitution,
however, does not contemplate any state in this jurisdiction other than the
Philippine State, much less does it provide for a transitory status that aims to
prepare any part of Philippine territory for independence.

Even the mere concept animating many of the MOA-AD's provisions,

therefore, already requires for its validity the amendment of constitutional
provisions, specifically the following provisions of Article X:
SECTION 1. The territorial and political subdivisions of the Republic of the
Philippines are the provinces, cities, municipalities, and barangays. There
shall be autonomous regions in Muslim Mindanao and the Cordilleras as
hereinafter provided.
SECTION 15. There shall be created autonomous regions in Muslim
Mindanao and in the Cordilleras consisting of provinces, cities,
municipalities, and geographical areas sharing common and distinctive
historical and cultural heritage, economic and social structures, and other
relevant characteristics within the framework of this Constitution and the
national sovereignty as well as territorial integrity of the Republic of the
Philippines.
The BJE is a far more powerful
entity than the autonomous region
recognized in the Constitution
It is not merely an expanded version of the ARMM, the status of its
relationship with the national government being fundamentally different from
that of the ARMM. Indeed, BJE is a state in all but name as it meets the
criteria of a state laid down in the Montevideo Convention,154 namely, a
permanent population, a defined territory, a government, and a capacity to
enter into relations with other states.
Even assuming arguendo that the MOA-AD would not necessarily sever any
portion of Philippine territory, the spirit animating it - which has betrayed itself
by its use of the concept of association - runs counter to the national
sovereignty and territorial integrity of the Republic.

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The defining concept underlying the relationship between the national
government and the BJE being itself contrary to the present Constitution, it is
not surprising that many of the specific provisions of the MOA-AD on the
formation and powers of the BJE are in conflict with the Constitution and the
laws.

SECTION 20. Within its territorial jurisdiction and subject to the provisions of
this Constitution and national laws, the organic act of autonomous regions
shall provide for legislative powers over:

Article X, Section 18 of the Constitution provides that "[t]he creation of the

autonomous region shall be effective when approved by a majority of the
votes cast by the constituent units in a plebiscite called for the purpose,
provided that only provinces, cities, and geographic areas voting favorably in
such plebiscite shall be included in the autonomous region." (Emphasis
supplied)

(2) Creation of sources of revenues;

As reflected above, the BJE is more of a state than an autonomous region.

But even assuming that it is covered by the term "autonomous region" in the
constitutional provision just quoted, the MOA-AD would still be in conflict with
it. Under paragraph 2(c) on TERRITORY in relation to 2(d) and 2(e), the
present geographic area of the ARMM and, in addition, the municipalities of
Lanao del Norte which voted for inclusion in the ARMM during the 2001
plebiscite - Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal - are
automatically part of the BJE without need of another plebiscite, in contrast
to the areas under Categories A and B mentioned earlier in the overview.
That the present components of the ARMM and the above-mentioned
municipalities voted for inclusion therein in 2001, however, does not render
another plebiscite unnecessary under the Constitution, precisely because
what these areas voted for then was their inclusion in the ARMM, not the
BJE.

(6) Economic, social, and tourism development;

The MOA-AD, moreover, would not

comply with Article X, Section 20 of
the Constitution
since that provision defines the powers of autonomous regions as follows:

(1) Administrative organization;

(3) Ancestral domain and natural resources;

(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;

(7) Educational policies;

(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the promotion of the
general welfare of the people of the region. (Underscoring supplied)
Again on the premise that the BJE may be regarded as an autonomous
region, the MOA-AD would require an amendment that would expand the
above-quoted provision. The mere passage of new legislation pursuant to
sub-paragraph No. 9 of said constitutional provision would not suffice, since
any new law that might vest in the BJE the powers found in the MOA-AD
must, itself, comply with other provisions of the Constitution. It would not do,
for instance, to merely pass legislation vesting the BJE with treaty-making
power in order to accommodate paragraph 4 of the strand on RESOURCES
which states: "The BJE is free to enter into any economic cooperation and
trade relations with foreign countries: provided, however, that such
relationships and understandings do not include aggression against the
Government of the Republic of the Philippines x x x." Under our
constitutional system, it is only the President who has that power. Pimentel v.
Executive Secretary155 instructs:

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In our system of government, the President, being the head of state, is
regarded as the sole organ and authority in external relations and is the
country's sole representative with foreign nations. As the chief architect of
foreign policy, the President acts as the country's mouthpiece with respect to
international affairs. Hence, the President is vested with the authority to deal
with foreign states and governments, extend or withhold recognition,
maintain diplomatic relations, enter into treaties, and otherwise transact the
business of foreign relations. In the realm of treaty-making, the President has
the sole authority to negotiate with other states. (Emphasis and underscoring
supplied)

freedom of choice of the Indigenous people shall be respected. (Emphasis

and underscoring supplied)

Article II, Section 22 of the Constitution must also be amended if the scheme
envisioned in the MOA-AD is to be effected. That constitutional provision
states: "The State recognizes and promotes the rights of indigenous cultural
communities within the framework of national unity and development."
(Underscoring supplied) An associative arrangement does not uphold
national unity. While there may be a semblance of unity because of the
associative ties between the BJE and the national government, the act of
placing a portion of Philippine territory in a status which, in international
practice, has generally been a preparation for independence, is certainly not
conducive to national unity.

(a) Tribal peoples. These are citizens whose social, cultural and economic
conditions distinguish them from other sectors of the national community; an

Besides being irreconcilable with the Constitution, the MOA-AD is also

inconsistent with prevailing statutory law, among which are R.A. No.
9054156 or the Organic Act of the ARMM, and the IPRA.157
Article X, Section 3 of the Organic Act of the ARMM is a bar to the adoption
of the definition of "Bangsamoro people" used in the MOA-AD. Paragraph 1
on Concepts and Principles states:
1. It is the birthright of all Moros and all Indigenous peoples of Mindanao to
identify themselves and be accepted as "Bangsamoros". The Bangsamoro
people refers to those who are natives or original inhabitants of Mindanao
and its adjacent islands including Palawan and the Sulu archipelago at the
time of conquest or colonization of its descendants whether mixed or of full
blood. Spouses and their descendants are classified as Bangsamoro. The

This use of the term Bangsamoro sharply contrasts with that found in the
Article X, Section 3 of the Organic Act, which, rather than lumping together
the identities of the Bangsamoro and other indigenous peoples living in
Mindanao, clearly distinguishes between Bangsamoro people and Tribal
peoples, as follows:
"As used in this Organic Act, the phrase "indigenous cultural community"
refers to Filipino citizens residing in the autonomous region who are:

(b) Bangsa Moro people. These are citizens who are believers in Islam and
who have retained some or all of their own social, economic, cultural, and
political institutions."
Respecting the IPRA, it lays down the prevailing procedure for the
delineation and recognition of ancestral domains. The MOA-AD's manner of
delineating the ancestral domain of the Bangsamoro people is a clear
departure from that procedure. By paragraph 1 of Territory, the Parties simply
agree that, subject to the delimitations in the agreed Schedules, "[t]he
Bangsamoro homeland and historic territory refer to the land mass as well as
the maritime, terrestrial, fluvial and alluvial domains, and the aerial domain,
the atmospheric space above it, embracing the Mindanao-Sulu-Palawan
geographic region."
Chapter VIII of the IPRA, on the other hand, lays down a detailed procedure,
as illustrated in the following provisions thereof:

104
SECTION 52. Delineation Process. - The identification and delineation of
ancestral domains shall be done in accordance with the following
procedures:

6) Anthropological data;

xxxx

8) Pictures and descriptive histories of traditional communal forests and

hunting grounds;

b) Petition for Delineation. - The process of delineating a specific perimeter

may be initiated by the NCIP with the consent of the ICC/IP concerned, or
through a Petition for Delineation filed with the NCIP, by a majority of the
members of the ICCs/IPs;

9) Pictures and descriptive histories of traditional landmarks such as

mountains, rivers, creeks, ridges, hills, terraces and the like; and

c) Delineation Proper. - The official delineation of ancestral domain

boundaries including census of all community members therein, shall be
immediately undertaken by the Ancestral Domains Office upon filing of the
application by the ICCs/IPs concerned. Delineation will be done in
coordination with the community concerned and shall at all times include
genuine involvement and participation by the members of the communities
concerned;

e) Preparation of Maps. - On the basis of such investigation and the findings

of fact based thereon, the Ancestral Domains Office of the NCIP shall
prepare a perimeter map, complete with technical descriptions, and a
description of the natural features and landmarks embraced therein;

d) Proof Required. - Proof of Ancestral Domain Claims shall include the

testimony of elders or community under oath, and other documents directly
or indirectly attesting to the possession or occupation of the area since time
immemorial by such ICCs/IPs in the concept of owners which shall be any
one (1) of the following authentic documents:
1) Written accounts of the ICCs/IPs customs and traditions;
2) Written accounts of the ICCs/IPs political structure and institution;
3) Pictures showing long term occupation such as those of old
improvements, burial grounds, sacred places and old villages;
4) Historical accounts, including pacts and agreements concerning
boundaries entered into by the ICCs/IPs concerned with other ICCs/IPs;

5) Survey plans and sketch maps;

7) Genealogical surveys;

10) Write-ups of names and places derived from the native dialect of the
community.

f) Report of Investigation and Other Documents. - A complete copy of the

preliminary census and a report of investigation, shall be prepared by the
Ancestral Domains Office of the NCIP;
g) Notice and Publication. - A copy of each document, including a translation
in the native language of the ICCs/IPs concerned shall be posted in a
prominent place therein for at least fifteen (15) days. A copy of the document
shall also be posted at the local, provincial and regional offices of the NCIP,
and shall be published in a newspaper of general circulation once a week for
two (2) consecutive weeks to allow other claimants to file opposition thereto
within fifteen (15) days from date of such publication: Provided, That in areas
where no such newspaper exists, broadcasting in a radio station will be a
valid substitute: Provided, further, That mere posting shall be deemed
sufficient if both newspaper and radio station are not available;

h) Endorsement to NCIP. - Within fifteen (15) days from publication, and of

the inspection process, the Ancestral Domains Office shall prepare a report

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to the NCIP endorsing a favorable action upon a claim that is deemed to
have sufficient proof. However, if the proof is deemed insufficient, the
Ancestral Domains Office shall require the submission of additional
evidence: Provided, That the Ancestral Domains Office shall reject any claim
that is deemed patently false or fraudulent after inspection and verification:
Provided, further, That in case of rejection, the Ancestral Domains Office
shall give the applicant due notice, copy furnished all concerned, containing
the grounds for denial. The denial shall be appealable to the NCIP: Provided,
furthermore, That in cases where there are conflicting claims among
ICCs/IPs on the boundaries of ancestral domain claims, the Ancestral
Domains Office shall cause the contending parties to meet and assist them
in coming up with a preliminary resolution of the conflict, without prejudice to
its full adjudication according to the section below.
xxxx
To remove all doubts about the irreconcilability of the MOA-AD with the
present legal system, a discussion of not only the Constitution and domestic
statutes, but also of international law is in order, for
Article II, Section 2 of the Constitution states that the Philippines "adopts the
generally accepted principles of international law as part of the law of the
land."
Applying this provision of the Constitution, the Court, in Mejoff v. Director of
Prisons,158 held that the Universal Declaration of Human Rights is part of
the law of the land on account of which it ordered the release on bail of a
detained alien of Russian descent whose deportation order had not been
executed even after two years. Similarly, the Court in Agustin v. Edu159
applied the aforesaid constitutional provision to the 1968 Vienna Convention
on Road Signs and Signals.

International law has long recognized the right to self-determination of

"peoples," understood not merely as the entire population of a State but also

a portion thereof. In considering the question of whether the people of

Quebec had a right to unilaterally secede from Canada, the Canadian
Supreme Court in REFERENCE RE SECESSION OF QUEBEC160 had
occasion to acknowledge that "the right of a people to self-determination is
now so widely recognized in international conventions that the principle has
acquired a status beyond convention' and is considered a general principle
of international law."
Among the conventions referred to are the International Covenant on Civil
and Political Rights161 and the International Covenant on Economic, Social
and Cultural Rights162 which state, in Article 1 of both covenants, that all
peoples, by virtue of the right of self-determination, "freely determine their
political status and freely pursue their economic, social, and cultural
development."
The people's right to self-determination should not, however, be understood
as extending to a unilateral right of secession. A distinction should be made
between the right of internal and external self-determination. REFERENCE
RE SECESSION OF QUEBEC is again instructive:
"(ii) Scope of the Right to Self-determination
126. The recognized sources of international law establish that the right to
self-determination of a people is normally fulfilled through internal selfdetermination - a people's pursuit of its political, economic, social and
cultural development within the framework of an existing state. A right to
external self-determination (which in this case potentially takes the form of
the assertion of a right to unilateral secession) arises in only the most
extreme of cases and, even then, under carefully defined circumstances. x x
x

External self-determination can be defined as in the following statement from

the Declaration on Friendly Relations, supra, as

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The establishment of a sovereign and independent State, the free
association or integration with an independent State or the emergence into
any other political status freely determined by a people constitute modes of
implementing the right of self-determination by that people. (Emphasis
added)
127. The international law principle of self-determination has evolved within a
framework of respect for the territorial integrity of existing states. The various
international documents that support the existence of a people's right to selfdetermination also contain parallel statements supportive of the conclusion
that the exercise of such a right must be sufficiently limited to prevent threats
to an existing state's territorial integrity or the stability of relations between
sovereign states.
x x x x (Emphasis, italics and underscoring supplied)
The Canadian Court went on to discuss the exceptional cases in which the
right to external self-determination can arise, namely, where a people is
under colonial rule, is subject to foreign domination or exploitation outside a
colonial context, and - less definitely but asserted by a number of
commentators - is blocked from the meaningful exercise of its right to internal
self-determination. The Court ultimately held that the population of Quebec
had no right to secession, as the same is not under colonial rule or foreign
domination, nor is it being deprived of the freedom to make political choices
and pursue economic, social and cultural development, citing that Quebec is
equitably represented in legislative, executive and judicial institutions within
Canada, even occupying prominent positions therein.
The exceptional nature of the right of secession is further exemplified in the
REPORT OF THE INTERNATIONAL COMMITTEE OF JURISTS ON THE
LEGAL ASPECTS OF THE AALAND ISLANDS QUESTION.163 There,
Sweden presented to the Council of the League of Nations the question of
whether the inhabitants of the Aaland Islands should be authorized to
determine by plebiscite if the archipelago should remain under Finnish
sovereignty or be incorporated in the kingdom of Sweden. The Council,
before resolving the question, appointed an International Committee

composed of three jurists to submit an opinion on the preliminary issue of

whether the dispute should, based on international law, be entirely left to the
domestic jurisdiction of Finland. The Committee stated the rule as follows:
x x x [I]n the absence of express provisions in international treaties, the right
of disposing of national territory is essentially an attribute of the sovereignty
of every State. Positive International Law does not recognize the right of
national groups, as such, to separate themselves from the State of which
they form part by the simple expression of a wish, any more than it
recognizes the right of other States to claim such a separation. Generally
speaking, the grant or refusal of the right to a portion of its population of
determining its own political fate by plebiscite or by some other method, is,
exclusively, an attribute of the sovereignty of every State which is definitively
constituted. A dispute between two States concerning such a question, under
normal conditions therefore, bears upon a question which International Law
leaves entirely to the domestic jurisdiction of one of the States concerned.
Any other solution would amount to an infringement of sovereign rights of a
State and would involve the risk of creating difficulties and a lack of stability
which would not only be contrary to the very idea embodied in term "State,"
but would also endanger the interests of the international community. If this
right is not possessed by a large or small section of a nation, neither can it
be held by the State to which the national group wishes to be attached, nor
by any other State. (Emphasis and underscoring supplied)
The Committee held that the dispute concerning the Aaland Islands did not
refer to a question which is left by international law to the domestic
jurisdiction of Finland, thereby applying the exception rather than the rule
elucidated above. Its ground for departing from the general rule, however,
was a very narrow one, namely, the Aaland Islands agitation originated at a
time when Finland was undergoing drastic political transformation. The
internal situation of Finland was, according to the Committee, so abnormal
that, for a considerable time, the conditions required for the formation of a
sovereign State did not exist. In the midst of revolution, anarchy, and civil
war, the legitimacy of the Finnish national government was disputed by a
large section of the people, and it had, in fact, been chased from the capital

107
and forcibly prevented from carrying out its duties. The armed camps and the
police were divided into two opposing forces. In light of these circumstances,
Finland was not, during the relevant time period, a "definitively constituted"
sovereign state. The Committee, therefore, found that Finland did not
possess the right to withhold from a portion of its population the option to
separate itself - a right which sovereign nations generally have with respect
to their own populations.
Turning now to the more specific category of indigenous peoples, this term
has been used, in scholarship as well as international, regional, and state
practices, to refer to groups with distinct cultures, histories, and connections
to land (spiritual and otherwise) that have been forcibly incorporated into a
larger governing society. These groups are regarded as "indigenous" since
they are the living descendants of pre-invasion inhabitants of lands now
dominated by others. Otherwise stated, indigenous peoples, nations, or
communities are culturally distinctive groups that find themselves engulfed
by settler societies born of the forces of empire and conquest.164 Examples
of groups who have been regarded as indigenous peoples are the Maori of
New Zealand and the aboriginal peoples of Canada.
As with the broader category of "peoples," indigenous peoples situated
within states do not have a general right to independence or secession from
those states under international law,165 but they do have rights amounting to
what was discussed above as the right to internal self-determination.
In a historic development last September 13, 2007, the UN General
Assembly adopted the United Nations Declaration on the Rights of
Indigenous Peoples (UN DRIP) through General Assembly Resolution
61/295. The vote was 143 to 4, the Philippines being included among those
in favor, and the four voting against being Australia, Canada, New Zealand,
and the U.S. The Declaration clearly recognized the right of indigenous
peoples to self-determination, encompassing the right to autonomy or selfgovernment, to wit:
Article 3

Indigenous peoples have the right to self-determination. By virtue of that right

they freely determine their political status and freely pursue their economic,
social and cultural development.
Article 4
Indigenous peoples, in exercising their right to self-determination, have the
right to autonomy or self-government in matters relating to their internal and
local affairs, as well as ways and means for financing their autonomous
functions.
Article 5
Indigenous peoples have the right to maintain and strengthen their distinct
political, legal, economic, social and cultural institutions, while retaining their
right to participate fully, if they so choose, in the political, economic, social
and cultural life of the State.
Self-government, as used in international legal discourse pertaining to
indigenous peoples, has been understood as equivalent to "internal selfdetermination."166 The extent of self-determination provided for in the UN
DRIP is more particularly defined in its subsequent articles, some of which
are quoted hereunder:
Article 8
1. Indigenous peoples and individuals have the right not to be subjected to
forced assimilation or destruction of their culture.
2. States shall provide effective mechanisms for prevention of, and redress
for:

(a) Any action which has the aim or effect of depriving them of their integrity
as distinct peoples, or of their cultural values or ethnic identities;

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(b) Any action which has the aim or effect of dispossessing them of their
lands, territories or resources;

customs, traditions and land tenure systems of the indigenous peoples

concerned.

(c) Any form of forced population transfer which has the aim or effect of
violating or undermining any of their rights;

Article 30

(d) Any form of forced assimilation or integration;

(e) Any form of propaganda designed to promote or incite racial or ethnic
discrimination directed against them.
Article 21
1. Indigenous peoples have the right, without discrimination, to the
improvement of their economic and social conditions, including, inter alia, in
the areas of education, employment, vocational training and retraining,
housing, sanitation, health and social security.
2. States shall take effective measures and, where appropriate, special
measures to ensure continuing improvement of their economic and social
conditions. Particular attention shall be paid to the rights and special needs
of indigenous elders, women, youth, children and persons with disabilities.
Article 26
1. Indigenous peoples have the right to the lands, territories and resources
which they have traditionally owned, occupied or otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and control the
lands, territories and resources that they possess by reason of traditional
ownership or other traditional occupation or use, as well as those which they
have otherwise acquired.

3. States shall give legal recognition and protection to these lands, territories
and resources. Such recognition shall be conducted with due respect to the

1. Military activities shall not take place in the lands or territories of

indigenous peoples, unless justified by a relevant public interest or otherwise
freely agreed with or requested by the indigenous peoples concerned.
2. States shall undertake effective consultations with the indigenous peoples
concerned, through appropriate procedures and in particular through their
representative institutions, prior to using their lands or territories for military
activities.
Article 32
1. Indigenous peoples have the right to determine and develop priorities and
strategies for the development or use of their lands or territories and other
resources.
2. States shall consult and cooperate in good faith with the indigenous
peoples concerned through their own representative institutions in order to
obtain their free and informed consent prior to the approval of any project
affecting their lands or territories and other resources, particularly in
connection with the development, utilization or exploitation of mineral, water
or other resources.
3. States shall provide effective mechanisms for just and fair redress for any
such activities, and appropriate measures shall be taken to mitigate adverse
environmental, economic, social, cultural or spiritual impact.
Article 37
1. Indigenous peoples have the right to the recognition, observance and
enforcement of treaties, agreements and other constructive arrangements
concluded with States or their successors and to have States honour and
respect such treaties, agreements and other constructive arrangements.

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2. Nothing in this Declaration may be interpreted as diminishing or
eliminating the rights of indigenous peoples contained in treaties,
agreements and other constructive arrangements.
Article 38
States in consultation and cooperation with indigenous peoples, shall take
the appropriate measures, including legislative measures, to achieve the
ends of this Declaration.
Assuming that the UN DRIP, like the Universal Declaration on Human Rights,
must now be regarded as embodying customary international law - a
question which the Court need not definitively resolve here - the obligations
enumerated therein do not strictly require the Republic to grant the
Bangsamoro people, through the instrumentality of the BJE, the particular
rights and powers provided for in the MOA-AD. Even the more specific
provisions of the UN DRIP are general in scope, allowing for flexibility in its
application by the different States.
There is, for instance, no requirement in the UN DRIP that States now
guarantee indigenous peoples their own police and internal security force.
Indeed, Article 8 presupposes that it is the State which will provide protection
for indigenous peoples against acts like the forced dispossession of their
lands - a function that is normally performed by police officers. If the
protection of a right so essential to indigenous people's identity is
acknowledged to be the responsibility of the State, then surely the protection
of rights less significant to them as such peoples would also be the duty of
States. Nor is there in the UN DRIP an acknowledgement of the right of
indigenous peoples to the aerial domain and atmospheric space. What it
upholds, in Article 26 thereof, is the right of indigenous peoples to the lands,
territories and resources which they have traditionally owned, occupied or
otherwise used or acquired.
Moreover, the UN DRIP, while upholding the right of indigenous peoples to
autonomy, does not obligate States to grant indigenous peoples the near-

independent status of an associated state. All the rights recognized in that

document are qualified in Article 46 as follows:
1. Nothing in this Declaration may be interpreted as implying for any State,
people, group or person any right to engage in any activity or to perform any
act contrary to the Charter of the United Nations or construed as authorizing
or encouraging any action which would dismember or impair, totally or in
part, the territorial integrity or political unity of sovereign and independent
States.
Even if the UN DRIP were considered as part of the law of the land pursuant
to Article II, Section 2 of the Constitution, it would not suffice to uphold the
validity of the MOA-AD so as to render its compliance with other laws
unnecessary.
It is, therefore, clear that the MOA-AD contains numerous provisions that
cannot be reconciled with the Constitution and the laws as presently worded.
Respondents proffer, however, that the signing of the MOA-AD alone would
not have entailed any violation of law or grave abuse of discretion on their
part, precisely because it stipulates that the provisions thereof inconsistent
with the laws shall not take effect until these laws are amended. They cite
paragraph 7 of the MOA-AD strand on GOVERNANCE quoted earlier, but
which is reproduced below for convenience:
7. The Parties agree that the mechanisms and modalities for the actual
implementation of this MOA-AD shall be spelt out in the Comprehensive
Compact to mutually take such steps to enable it to occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing legal
framework shall come into force upon signing of a Comprehensive Compact
and upon effecting the necessary changes to the legal framework with due
regard to non derogation of prior agreements and within the stipulated
timeframe to be contained in the Comprehensive Compact.

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Indeed, the foregoing stipulation keeps many controversial provisions of the
MOA-AD from coming into force until the necessary changes to the legal
framework are effected. While the word "Constitution" is not mentioned in the
provision now under consideration or anywhere else in the MOA-AD, the
term "legal framework" is certainly broad enough to include the Constitution.
Notwithstanding the suspensive clause, however, respondents, by their mere
act of incorporating in the MOA-AD the provisions thereof regarding the
associative relationship between the BJE and the Central Government, have
already violated the Memorandum of Instructions From The President dated
March 1, 2001, which states that the "negotiations shall be conducted in
accordance with x x x the principles of the sovereignty and territorial integrity
of the Republic of the Philippines." (Emphasis supplied) Establishing an
associative relationship between the BJE and the Central Government is, for
the reasons already discussed, a preparation for independence, or worse, an
implicit acknowledgment of an independent status already prevailing.
Even apart from the above-mentioned Memorandum, however, the MOA-AD
is defective because the suspensive clause is invalid, as discussed below.
The authority of the GRP Peace Negotiating Panel to negotiate with the
MILF is founded on E.O. No. 3, Section 5(c), which states that there shall be
established Government Peace Negotiating Panels for negotiations with
different rebel groups to be "appointed by the President as her official
emissaries to conduct negotiations, dialogues, and face-to-face discussions
with rebel groups." These negotiating panels are to report to the President,
through the PAPP on the conduct and progress of the negotiations.
It bears noting that the GRP Peace Panel, in exploring lasting solutions to
the Moro Problem through its negotiations with the MILF, was not restricted
by E.O. No. 3 only to those options available under the laws as they
presently stand. One of the components of a comprehensive peace process,
which E.O. No. 3 collectively refers to as the "Paths to Peace," is the pursuit
of social, economic, and political reforms which may require new legislation
or even constitutional amendments. Sec. 4(a) of E.O. No. 3, which reiterates
Section 3(a), of E.O. No. 125,167 states:

SECTION 4. The Six Paths to Peace. - The components of the

comprehensive peace process comprise the processes known as the "Paths
to Peace". These component processes are interrelated and not mutually
exclusive, and must therefore be pursued simultaneously in a coordinated
and integrated fashion. They shall include, but may not be limited to, the
following:
a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS. This
component involves the vigorous implementation of various policies, reforms,
programs and projects aimed at addressing the root causes of internal
armed conflicts and social unrest. This may require administrative action,
new legislation or even constitutional amendments.
x x x x (Emphasis supplied)
The MOA-AD, therefore, may reasonably be perceived as an attempt of
respondents to address, pursuant to this provision of E.O. No. 3, the root
causes of the armed conflict in Mindanao. The E.O. authorized them to "think
outside the box," so to speak. Hence, they negotiated and were set on
signing the MOA-AD that included various social, economic, and political
reforms which cannot, however, all be accommodated within the present
legal framework, and which thus would require new legislation and
constitutional amendments.
The inquiry on the legality of the "suspensive clause," however, cannot stop
here, because it must be asked whether the President herself may exercise
the power delegated to the GRP Peace Panel under E.O. No. 3, Sec. 4(a).
The President cannot delegate a power that she herself does not possess.
May the President, in the course of peace negotiations, agree to pursue
reforms that would require new legislation and constitutional amendments, or
should the reforms be restricted only to those solutions which the present
laws allow? The answer to this question requires a discussion of the extent
of the President's power to conduct peace negotiations.

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That the authority of the President to conduct peace negotiations with rebel
groups is not explicitly mentioned in the Constitution does not mean that she
has no such authority. In Sanlakas v. Executive Secretary,168 in issue was
the authority of the President to declare a state of rebellion - an authority
which is not expressly provided for in the Constitution. The Court held thus:
"In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into
jurisprudence. There, the Court, by a slim 8-7 margin, upheld the President's
power to forbid the return of her exiled predecessor. The rationale for the
majority's ruling rested on the President's
. . . unstated residual powers which are implied from the grant of executive
power and which are necessary for her to comply with her duties under the
Constitution. The powers of the President are not limited to what are
expressly enumerated in the article on the Executive Department and in
scattered provisions of the Constitution. This is so, notwithstanding the
avowed intent of the members of the Constitutional Commission of 1986 to
limit the powers of the President as a reaction to the abuses under the
regime of Mr. Marcos, for the result was a limitation of specific powers of the
President, particularly those relating to the commander-in-chief clause, but
not a diminution of the general grant of executive power.
Thus, the President's authority to declare a state of rebellion springs in the
main from her powers as chief executive and, at the same time, draws
strength from her Commander-in-Chief powers. x x x (Emphasis and
underscoring supplied)
Similarly, the President's power to conduct peace negotiations is implicitly
included in her powers as Chief Executive and Commander-in-Chief. As
Chief Executive, the President has the general responsibility to promote
public peace, and as Commander-in-Chief, she has the more specific duty to
prevent and suppress rebellion and lawless violence.169
As the experience of nations which have similarly gone through internal
armed conflict will show, however, peace is rarely attained by simply
pursuing a military solution. Oftentimes, changes as far-reaching as a

fundamental reconfiguration of the nation's constitutional structure is

required. The observations of Dr. Kirsti Samuels are enlightening, to wit:
x x x [T]he fact remains that a successful political and governance transition
must form the core of any post-conflict peace-building mission. As we have
observed in Liberia and Haiti over the last ten years, conflict cessation
without modification of the political environment, even where state-building is
undertaken through technical electoral assistance and institution- or
capacity-building, is unlikely to succeed. On average, more than 50 percent
of states emerging from conflict return to conflict. Moreover, a substantial
proportion of transitions have resulted in weak or limited democracies.
The design of a constitution and its constitution-making process can play an
important role in the political and governance transition. Constitution-making
after conflict is an opportunity to create a common vision of the future of a
state and a road map on how to get there. The constitution can be partly a
peace agreement and partly a framework setting up the rules by which the
new democracy will operate.170
In the same vein, Professor Christine Bell, in her article on the nature and
legal status of peace agreements, observed that the typical way that peace
agreements establish or confirm mechanisms for demilitarization and
demobilization is by linking them to new constitutional structures addressing
governance, elections, and legal and human rights institutions.171
In the Philippine experience, the link between peace agreements and
constitution-making has been recognized by no less than the framers of the
Constitution. Behind the provisions of the Constitution on autonomous
regions172 is the framers' intention to implement a particular peace
agreement, namely, the Tripoli Agreement of 1976 between the GRP and the
MNLF, signed by then Undersecretary of National Defense Carmelo Z.
Barbero and then MNLF Chairman Nur Misuari.

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MR. ROMULO. There are other speakers; so, although I have some more
questions, I will reserve my right to ask them if they are not covered by the
other speakers. I have only two questions.
I heard one of the Commissioners say that local autonomy already exists in
the Muslim region; it is working very well; it has, in fact, diminished a great
deal of the problems. So, my question is: since that already exists, why do
we have to go into something new?
MR. OPLE. May I answer that on behalf of Chairman Nolledo. Commissioner
Yusup Abubakar is right that certain definite steps have been taken to
implement the provisions of the Tripoli Agreement with respect to an
autonomous region in Mindanao. This is a good first step, but there is no
question that this is merely a partial response to the Tripoli Agreement itself
and to the fuller standard of regional autonomy contemplated in that
agreement, and now by state policy.173(Emphasis supplied)
The constitutional provisions on autonomy and the statutes enacted pursuant
to them have, to the credit of their drafters, been partly successful.
Nonetheless, the Filipino people are still faced with the reality of an on-going
conflict between the Government and the MILF. If the President is to be
expected to find means for bringing this conflict to an end and to achieve
lasting peace in Mindanao, then she must be given the leeway to explore, in
the course of peace negotiations, solutions that may require changes to the
Constitution for their implementation. Being uniquely vested with the power
to conduct peace negotiations with rebel groups, the President is in a
singular position to know the precise nature of their grievances which, if
resolved, may bring an end to hostilities.
The President may not, of course, unilaterally implement the solutions that
she considers viable, but she may not be prevented from submitting them as
recommendations to Congress, which could then, if it is minded, act upon
them pursuant to the legal procedures for constitutional amendment and
revision. In particular, Congress would have the option, pursuant to Article
XVII, Sections 1 and 3 of the Constitution, to propose the recommended

amendments or revision to the people, call a constitutional convention, or

submit to the electorate the question of calling such a convention.
While the President does not possess constituent powers - as those powers
may be exercised only by Congress, a Constitutional Convention, or the
people through initiative and referendum - she may submit proposals for
constitutional change to Congress in a manner that does not involve the
arrogation of constituent powers.
In Sanidad v. COMELEC,174 in issue was the legality of then President
Marcos' act of directly submitting proposals for constitutional amendments to
a referendum, bypassing the interim National Assembly which was the body
vested by the 1973 Constitution with the power to propose such
amendments. President Marcos, it will be recalled, never convened the
interim National Assembly. The majority upheld the President's act, holding
that "the urges of absolute necessity" compelled the President as the agent
of the people to act as he did, there being no interim National Assembly to
propose constitutional amendments. Against this ruling, Justices Teehankee
and Muoz Palma vigorously dissented. The Court's concern at present,
however, is not with regard to the point on which it was then divided in that
controversial case, but on that which was not disputed by either side.
Justice Teehankee's dissent,175 in particular, bears noting. While he
disagreed that the President may directly submit proposed constitutional
amendments to a referendum, implicit in his opinion is a recognition that he
would have upheld the President's action along with the majority had the
President convened the interim National Assembly and coursed his
proposals through it. Thus Justice Teehankee opined:
"Since the Constitution provides for the organization of the essential
departments of government, defines and delimits the powers of each and
prescribes the manner of the exercise of such powers, and the constituent
power has not been granted to but has been withheld from the President or
Prime Minister, it follows that the President's questioned decrees proposing
and submitting constitutional amendments directly to the people (without the

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intervention of the interim National Assembly in whom the power is expressly
vested) are devoid of constitutional and legal basis."176 (Emphasis supplied)
From the foregoing discussion, the principle may be inferred that the
President - in the course of conducting peace negotiations - may validly
consider implementing even those policies that require changes to the
Constitution, but she may not unilaterally implement them without the
intervention of Congress, or act in any way as if the assent of that body were
assumed as a certainty.
Since, under the present Constitution, the people also have the power to
directly propose amendments through initiative and referendum, the
President may also submit her recommendations to the people, not as a
formal proposal to be voted on in a plebiscite similar to what President
Marcos did in Sanidad, but for their independent consideration of whether
these recommendations merit being formally proposed through initiative.
These recommendations, however, may amount to nothing more than the
President's suggestions to the people, for any further involvement in the
process of initiative by the Chief Executive may vitiate its character as a
genuine "people's initiative." The only initiative recognized by the
Constitution is that which truly proceeds from the people. As the Court stated
in Lambino v. COMELEC
"The Lambino Group claims that their initiative is the people's voice.'
However, the Lambino Group unabashedly states in ULAP Resolution No.
2006-02, in the verification of their petition with the COMELEC, that ULAP
maintains its unqualified support to the agenda of Her Excellency President
Gloria Macapagal-Arroyo for constitutional reforms.' The Lambino Group
thus admits that their people's' initiative is an unqualified support to the
agenda' of the incumbent President to change the Constitution. This
forewarns the Court to be wary of incantations of people's voice' or
sovereign will' in the present initiative."

It will be observed that the President has authority, as stated in her oath of
office,178 only to preserve and defend the Constitution. Such presidential
power does not, however, extend to allowing her to change the Constitution,
but simply to recommend proposed amendments or revision. As long as she
limits herself to recommending these changes and submits to the proper
procedure for constitutional amendments and revision, her mere
recommendation need not be construed as an unconstitutional act.
The foregoing discussion focused on the President's authority to propose
constitutional amendments, since her authority to propose new legislation is
not in controversy. It has been an accepted practice for Presidents in this
jurisdiction to propose new legislation. One of the more prominent instances
the practice is usually done is in the yearly State of the Nation Address of the
President to Congress. Moreover, the annual general appropriations bill has
always been based on the budget prepared by the President, which - for all
intents and purposes - is a proposal for new legislation coming from the
President.179
The "suspensive clause" in the MOA-AD viewed in light of the abovediscussed standards
Given the limited nature of the President's authority to propose constitutional
amendments, she cannot guarantee to any third party that the required
amendments will eventually be put in place, nor even be submitted to a
plebiscite. The most she could do is submit these proposals as
recommendations either to Congress or the people, in whom constituent
powers are vested.
Paragraph 7 on Governance of the MOA-AD states, however, that all
provisions thereof which cannot be reconciled with the present Constitution
and laws "shall come into force upon signing of a Comprehensive Compact
and upon effecting the necessary changes to the legal framework." This
stipulation does not bear the marks of a suspensive condition - defined in
civil law as a future and uncertain event - but of a term. It is not a question of
whether the necessary changes to the legal framework will be effected, but
when. That there is no uncertainty being contemplated is plain from what

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follows, for the paragraph goes on to state that the contemplated changes
shall be "with due regard to non derogation of prior agreements and within
the stipulated timeframe to be contained in the Comprehensive Compact."
Pursuant to this stipulation, therefore, it is mandatory for the GRP to effect
the changes to the legal framework contemplated in the MOA-AD - which
changes would include constitutional amendments, as discussed earlier. It
bears noting that,
By the time these changes are put in place, the MOA-AD itself would be
counted among the "prior agreements" from which there could be no
derogation.
What remains for discussion in the Comprehensive Compact would merely
be the implementing details for these "consensus points" and, notably, the
deadline for effecting the contemplated changes to the legal framework.
Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with the
limits of the President's authority to propose constitutional amendments, it
being a virtual guarantee that the Constitution and the laws of the Republic
of the Philippines will certainly be adjusted to conform to all the "consensus
points" found in the MOA-AD. Hence, it must be struck down as
unconstitutional.
A comparison between the "suspensive clause" of the MOA-AD with a similar
provision appearing in the 1996 final peace agreement between the MNLF
and the GRP is most instructive.
As a backdrop, the parties to the 1996 Agreement stipulated that it would be
implemented in two phases. Phase I covered a three-year transitional period
involving the putting up of new administrative structures through Executive
Order, such as the Special Zone of Peace and Development (SZOPAD) and
the Southern Philippines Council for Peace and Development (SPCPD),
while Phase II covered the establishment of the new regional autonomous
government through amendment or repeal of R.A. No. 6734, which was then
the Organic Act of the ARMM.

The stipulations on Phase II consisted of specific agreements on the

structure of the expanded autonomous region envisioned by the parties. To
that extent, they are similar to the provisions of the MOA-AD. There is,
however, a crucial difference between the two agreements. While the MOAAD virtually guarantees that the "necessary changes to the legal framework"
will be put in place, the GRP-MNLF final peace agreement states thus:
"Accordingly, these provisions [on Phase II] shall be recommended by the
GRP to Congress for incorporation in the amendatory or repealing law."
Concerns have been raised that the MOA-AD would have given rise to a
binding international law obligation on the part of the Philippines to change
its Constitution in conformity thereto, on the ground that it may be considered
either as a binding agreement under international law, or a unilateral
declaration of the Philippine government to the international community that
it would grant to the Bangsamoro people all the concessions therein stated.
Neither ground finds sufficient support in international law, however.
The MOA-AD, as earlier mentioned in the overview thereof, would have
included foreign dignitaries as signatories. In addition, representatives of
other nations were invited to witness its signing in Kuala Lumpur. These
circumstances readily lead one to surmise that the MOA-AD would have had
the status of a binding international agreement had it been signed. An
examination of the prevailing principles in international law, however, leads to
the contrary conclusion.
The Decision on Challenge to Jurisdiction: Lom Accord Amnesty180 (the
Lom Accord case) of the Special Court of Sierra Leone is enlightening. The
Lom Accord was a peace agreement signed on July 7, 1999 between the
Government of Sierra Leone and the Revolutionary United Front (RUF), a
rebel group with which the Sierra Leone Government had been in armed
conflict for around eight years at the time of signing. There were noncontracting signatories to the agreement, among which were the
Government of the Togolese Republic, the Economic Community of West
African States, and the UN.

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On January 16, 2002, after a successful negotiation between the UN
Secretary-General and the Sierra Leone Government, another agreement
was entered into by the UN and that Government whereby the Special Court
of Sierra Leone was established. The sole purpose of the Special Court, an
international court, was to try persons who bore the greatest responsibility for
serious violations of international humanitarian law and Sierra Leonean law
committed in the territory of Sierra Leone since November 30, 1996.
Among the stipulations of the Lom Accord was a provision for the full
pardon of the members of the RUF with respect to anything done by them in
pursuit of their objectives as members of that organization since the conflict
began.
In the Lom Accord case, the Defence argued that the Accord created an
internationally binding obligation not to prosecute the beneficiaries of the
amnesty provided therein, citing, among other things, the participation of
foreign dignitaries and international organizations in the finalization of that
agreement. The Special Court, however, rejected this argument, ruling that
the Lome Accord is not a treaty and that it can only create binding obligations
and rights between the parties in municipal law, not in international law.
Hence, the Special Court held, it is ineffective in depriving an international
court like it of jurisdiction.
"37. In regard to the nature of a negotiated settlement of an internal armed
conflict it is easy to assume and to argue with some degree of plausibility, as
Defence counsel for the defendants seem to have done, that the mere fact
that in addition to the parties to the conflict, the document formalizing the
settlement is signed by foreign heads of state or their representatives and
representatives of international organizations, means the agreement of the
parties is internationalized so as to create obligations in international law.
xxxx
40. Almost every conflict resolution will involve the parties to the conflict and
the mediator or facilitator of the settlement, or persons or bodies under
whose auspices the settlement took place but who are not at all parties to

the conflict, are not contracting parties and who do not claim any obligation
from the contracting parties or incur any obligation from the settlement.
41. In this case, the parties to the conflict are the lawful authority of the State
and the RUF which has no status of statehood and is to all intents and
purposes a faction within the state. The non-contracting signatories of the
Lom Agreement were moral guarantors of the principle that, in the terms of
Article XXXIV of the Agreement, "this peace agreement is implemented with
integrity and in good faith by both parties". The moral guarantors assumed
no legal obligation. It is recalled that the UN by its representative appended,
presumably for avoidance of doubt, an understanding of the extent of the
agreement to be implemented as not including certain international crimes.
42. An international agreement in the nature of a treaty must create rights
and obligations regulated by international law so that a breach of its terms
will be a breach determined under international law which will also provide
principle means of enforcement. The Lom Agreement created neither rights
nor obligations capable of being regulated by international law. An
agreement such as the Lom Agreement which brings to an end an internal
armed conflict no doubt creates a factual situation of restoration of peace
that the international community acting through the Security Council may
take note of. That, however, will not convert it to an international agreement
which creates an obligation enforceable in international, as distinguished
from municipal, law. A breach of the terms of such a peace agreement
resulting in resumption of internal armed conflict or creating a threat to peace
in the determination of the Security Council may indicate a reversal of the
factual situation of peace to be visited with possible legal consequences
arising from the new situation of conflict created. Such consequences such
as action by the Security Council pursuant to Chapter VII arise from the
situation and not from the agreement, nor from the obligation imposed by it.
Such action cannot be regarded as a remedy for the breach. A peace
agreement which settles an internal armed conflict cannot be ascribed the
same status as one which settles an international armed conflict which,
essentially, must be between two or more warring States. The Lom

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Agreement cannot be characterised as an international instrument. x x x"
(Emphasis, italics and underscoring supplied)
Similarly, that the MOA-AD would have been signed by representatives of
States and international organizations not parties to the Agreement would
not have sufficed to vest in it a binding character under international law.

even though not made within the context of international negotiations, is

binding. In these circumstances, nothing in the nature of a quid pro quo nor
any subsequent acceptance of the declaration, nor even any reply or
reaction from other States, is required for the declaration to take effect, since
such a requirement would be inconsistent with the strictly unilateral nature of
the juridical act by which the pronouncement by the State was made.

In another vein, concern has been raised that the MOA-AD would amount to
a unilateral declaration of the Philippine State, binding under international
law, that it would comply with all the stipulations stated therein, with the
result that it would have to amend its Constitution accordingly regardless of
the true will of the people. Cited as authority for this view is Australia v.
France,181 also known as the Nuclear Tests Case, decided by the
International Court of Justice (ICJ).

44. Of course, not all unilateral acts imply obligation; but a State may choose
to take up a certain position in relation to a particular matter with the intention
of being bound-the intention is to be ascertained by interpretation of the act.
When States make statements by which their freedom of action is to be
limited, a restrictive interpretation is called for.

In the Nuclear Tests Case, Australia challenged before the ICJ the legality of
France's nuclear tests in the South Pacific. France refused to appear in the
case, but public statements from its President, and similar statements from
other French officials including its Minister of Defence, that its 1974 series of
atmospheric tests would be its last, persuaded the ICJ to dismiss the
case.182 Those statements, the ICJ held, amounted to a legal undertaking
addressed to the international community, which required no acceptance
from other States for it to become effective.

51. In announcing that the 1974 series of atmospheric tests would be the
last, the French Government conveyed to the world at large, including the
Applicant, its intention effectively to terminate these tests. It was bound to
assume that other States might take note of these statements and rely on
their being effective. The validity of these statements and their legal
consequences must be considered within the general framework of the
security of international intercourse, and the confidence and trust which are
so essential in the relations among States. It is from the actual substance of
these statements, and from the circumstances attending their making, that
the legal implications of the unilateral act must be deduced. The objects of
these statements are clear and they were addressed to the international
community as a whole, and the Court holds that they constitute an
undertaking possessing legal effect. The Court considers *270 that the
President of the Republic, in deciding upon the effective cessation of
atmospheric tests, gave an undertaking to the international community to
which his words were addressed. x x x (Emphasis and underscoring
supplied)

Essential to the ICJ ruling is its finding that the French government intended
to be bound to the international community in issuing its public statements,
viz
43. It is well recognized that declarations made by way of unilateral acts,
concerning legal or factual situations, may have the effect of creating legal
obligations. Declarations of this kind may be, and often are, very specific.
When it is the intention of the State making the declaration that it should
become bound according to its terms, that intention confers on the
declaration the character of a legal undertaking, the State being thenceforth
legally required to follow a course of conduct consistent with the declaration.
An undertaking of this kind, if given publicly, and with an intent to be bound,

xxxx

117
As gathered from the above-quoted ruling of the ICJ, public statements of a
state representative may be construed as a unilateral declaration only when
the following conditions are present: the statements were clearly addressed
to the international community, the state intended to be bound to that
community by its statements, and that not to give legal effect to those
statements would be detrimental to the security of international intercourse.
Plainly, unilateral declarations arise only in peculiar circumstances.

accept the binding character of the conclusions of the Organization of African

Unity Mediation Commission by the normal method: a formal agreement on
the basis of reciprocity. Since no agreement of this kind was concluded
between the Parties, the Chamber finds that there are no grounds to
interpret the declaration made by Mali's head of State on 11 April 1975 as a
unilateral act with legal implications in regard to the present case. (Emphasis
and underscoring supplied)

The limited applicability of the Nuclear Tests Case ruling was recognized in a
later case decided by the ICJ entitled Burkina Faso v. Mali,183 also known
as the Case Concerning the Frontier Dispute. The public declaration subject
of that case was a statement made by the President of Mali, in an interview
by a foreign press agency, that Mali would abide by the decision to be issued
by a commission of the Organization of African Unity on a frontier dispute
then pending between Mali and Burkina Faso.

Assessing the MOA-AD in light of the above criteria, it would not have
amounted to a unilateral declaration on the part of the Philippine State to the
international community. The Philippine panel did not draft the same with the
clear intention of being bound thereby to the international community as a
whole or to any State, but only to the MILF. While there were States and
international organizations involved, one way or another, in the negotiation
and projected signing of the MOA-AD, they participated merely as witnesses
or, in the case of Malaysia, as facilitator. As held in the Lom Accord case,
the mere fact that in addition to the parties to the conflict, the peace
settlement is signed by representatives of states and international
organizations does not mean that the agreement is internationalized so as to
create obligations in international law.

Unlike in the Nuclear Tests Case, the ICJ held that the statement of Mali's
President was not a unilateral act with legal implications. It clarified that its
ruling in the Nuclear Tests case rested on the peculiar circumstances
surrounding the French declaration subject thereof, to wit:
40. In order to assess the intentions of the author of a unilateral act, account
must be taken of all the factual circumstances in which the act occurred. For
example, in the Nuclear Tests cases, the Court took the view that since the
applicant States were not the only ones concerned at the possible
continuance of atmospheric testing by the French Government, that
Government's unilateral declarations had conveyed to the world at large,
including the Applicant, its intention effectively to terminate these tests
(I.C.J. Reports 1974, p. 269, para. 51; p. 474, para. 53). In the particular
circumstances of those cases, the French Government could not express an
intention to be bound otherwise than by unilateral declarations. It is difficult to
see how it could have accepted the terms of a negotiated solution with each
of the applicants without thereby jeopardizing its contention that its conduct
was lawful. The circumstances of the present case are radically different.
Here, there was nothing to hinder the Parties from manifesting an intention to

Since the commitments in the MOA-AD were not addressed to States, not to
give legal effect to such commitments would not be detrimental to the
security of international intercourse - to the trust and confidence essential in
the relations among States.
In one important respect, the circumstances surrounding the MOA-AD are
closer to that of Burkina Faso wherein, as already discussed, the Mali
President's statement was not held to be a binding unilateral declaration by
the ICJ. As in that case, there was also nothing to hinder the Philippine
panel, had it really been its intention to be bound to other States, to manifest
that intention by formal agreement. Here, that formal agreement would have
come about by the inclusion in the MOA-AD of a clear commitment to be
legally bound to the international community, not just the MILF, and by an
equally clear indication that the signatures of the participating states-

118
representatives would constitute an acceptance of that commitment.
Entering into such a formal agreement would not have resulted in a loss of
face for the Philippine government before the international community, which
was one of the difficulties that prevented the French Government from
entering into a formal agreement with other countries. That the Philippine
panel did not enter into such a formal agreement suggests that it had no
intention to be bound to the international community. On that ground, the
MOA-AD may not be considered a unilateral declaration under international
law.
The MOA-AD not being a document that can bind the Philippines under
international law notwithstanding, respondents' almost consummated act of
guaranteeing amendments to the legal framework is, by itself, sufficient to
constitute grave abuse of discretion. The grave abuse lies not in the fact that
they considered, as a solution to the Moro Problem, the creation of a state
within a state, but in their brazen willingness to guarantee that Congress and
the sovereign Filipino people would give their imprimatur to their solution.
Upholding such an act would amount to authorizing a usurpation of the
constituent powers vested only in Congress, a Constitutional Convention, or
the people themselves through the process of initiative, for the only way that
the Executive can ensure the outcome of the amendment process is through
an undue influence or interference with that process.
The sovereign people may, if it so desired, go to the extent of giving up a
portion of its own territory to the Moros for the sake of peace, for it can
change the Constitution in any it wants, so long as the change is not
inconsistent with what, in international law, is known as Jus Cogens.184
Respondents, however, may not preempt it in that decision.
SUMMARY
The petitions are ripe for adjudication. The failure of respondents to consult
the local government units or communities affected constitutes a departure
by respondents from their mandate under E.O. No. 3. Moreover, respondents
exceeded their authority by the mere act of guaranteeing amendments to the

Constitution. Any alleged violation of the Constitution by any branch of

government is a proper matter for judicial review.
As the petitions involve constitutional issues which are of paramount public
interest or of transcendental importance, the Court grants the petitioners,
petitioners-in-intervention and intervening respondents the requisite locus
standi in keeping with the liberal stance adopted in David v. MacapagalArroyo.
Contrary to the assertion of respondents that the non-signing of the MOA-AD
and the eventual dissolution of the GRP Peace Panel mooted the present
petitions, the Court finds that the present petitions provide an exception to
the "moot and academic" principle in view of (a) the grave violation of the
Constitution involved; (b) the exceptional character of the situation and
paramount public interest; (c) the need to formulate controlling principles to
guide the bench, the bar, and the public; and (d) the fact that the case is
capable of repetition yet evading review.
The MOA-AD is a significant part of a series of agreements necessary to
carry out the GRP-MILF Tripoli Agreement on Peace signed by the
government and the MILF back in June 2001. Hence, the present MOA-AD
can be renegotiated or another one drawn up that could contain similar or
significantly dissimilar provisions compared to the original.
The Court, however, finds that the prayers for mandamus have been
rendered moot in view of the respondents' action in providing the Court and
the petitioners with the official copy of the final draft of the MOA-AD and its
annexes.
The people's right to information on matters of public concern under Sec. 7,
Article III of the Constitution is in splendid symmetry with the state policy of
full public disclosure of all its transactions involving public interest under Sec.
28, Article II of the Constitution. The right to information guarantees the right
of the people to demand information, while Section 28 recognizes the duty of
officialdom to give information even if nobody demands. The complete and
effective exercise of the right to information necessitates that its

119
complementary provision on public disclosure derive the same self-executory
nature, subject only to reasonable safeguards or limitations as may be
provided by law.
The contents of the MOA-AD is a matter of paramount public concern
involving public interest in the highest order. In declaring that the right to
information contemplates steps and negotiations leading to the
consummation of the contract, jurisprudence finds no distinction as to the
executory nature or commercial character of the agreement.
An essential element of these twin freedoms is to keep a continuing dialogue
or process of communication between the government and the people.
Corollary to these twin rights is the design for feedback mechanisms. The
right to public consultation was envisioned to be a species of these public
rights.
At least three pertinent laws animate these constitutional imperatives and
justify the exercise of the people's right to be consulted on relevant matters
relating to the peace agenda.
One, E.O. No. 3 itself is replete with mechanics for continuing consultations
on both national and local levels and for a principal forum for consensusbuilding. In fact, it is the duty of the Presidential Adviser on the Peace
Process to conduct regular dialogues to seek relevant information,
comments, advice, and recommendations from peace partners and
concerned sectors of society.
Two, Republic Act No. 7160 or the Local Government Code of 1991 requires
all national offices to conduct consultations before any project or program
critical to the environment and human ecology including those that may call
for the eviction of a particular group of people residing in such locality, is
implemented therein. The MOA-AD is one peculiar program that
unequivocally and unilaterally vests ownership of a vast territory to the
Bangsamoro people, which could pervasively and drastically result to the
diaspora or displacement of a great number of inhabitants from their total
environment.

Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997
provides for clear-cut procedure for the recognition and delineation of
ancestral domain, which entails, among other things, the observance of the
free and prior informed consent of the Indigenous Cultural
Communities/Indigenous Peoples. Notably, the statute does not grant the
Executive Department or any government agency the power to delineate and
recognize an ancestral domain claim by mere agreement or compromise.
The invocation of the doctrine of executive privilege as a defense to the
general right to information or the specific right to consultation is untenable.
The various explicit legal provisions fly in the face of executive secrecy. In
any event, respondents effectively waived such defense after it
unconditionally disclosed the official copies of the final draft of the MOA-AD,
for judicial compliance and public scrutiny.
In sum, the Presidential Adviser on the Peace Process committed grave
abuse of discretion when he failed to carry out the pertinent consultation
process, as mandated by E.O. No. 3, Republic Act No. 7160, and Republic
Act No. 8371. The furtive process by which the MOA-AD was designed and
crafted runs contrary to and in excess of the legal authority, and amounts to
a whimsical, capricious, oppressive, arbitrary and despotic exercise thereof.
It illustrates a gross evasion of positive duty and a virtual refusal to perform
the duty enjoined.
The MOA-AD cannot be reconciled with the present Constitution and laws.
Not only its specific provisions but the very concept underlying them, namely,
the associative relationship envisioned between the GRP and the BJE, are
unconstitutional, for the concept presupposes that the associated entity is a
state and implies that the same is on its way to independence.
While there is a clause in the MOA-AD stating that the provisions thereof
inconsistent with the present legal framework will not be effective until that
framework is amended, the same does not cure its defect. The inclusion of
provisions in the MOA-AD establishing an associative relationship between
the BJE and the Central Government is, itself, a violation of the
Memorandum of Instructions From The President dated March 1, 2001,

120
addressed to the government peace panel. Moreover, as the clause is
worded, it virtually guarantees that the necessary amendments to the
Constitution and the laws will eventually be put in place. Neither the GRP
Peace Panel nor the President herself is authorized to make such a
guarantee. Upholding such an act would amount to authorizing a usurpation
of the constituent powers vested only in Congress, a Constitutional
Convention, or the people themselves through the process of initiative, for
the only way that the Executive can ensure the outcome of the amendment
process is through an undue influence or interference with that process.
While the MOA-AD would not amount to an international agreement or
unilateral declaration binding on the Philippines under international law,
respondents' act of guaranteeing amendments is, by itself, already a
constitutional violation that renders the MOA-AD fatally defective.
WHEREFORE, respondents' motion to dismiss is DENIED. The main and
intervening petitions are GIVEN DUE COURSE and hereby GRANTED.
The Memorandum of Agreement on the Ancestral Domain Aspect of the
GRP-MILF Tripoli Agreement on Peace of 2001 is declared contrary to law
and the Constitution.
SO ORDERED.
CONCHITA CARPIO MORALES

121
Ebralinag v. Division Superintendent of Schools
G.R. No. 95770

March 1, 1993

GRIO-AQUINO, J.:
These two special civil actions for certiorari, Mandamus and Prohibition were
consolidated because they raise essentially the same issue: whether school
children who are members or a religious sect known as Jehovah's Witnesses
may be expelled from school (both public and private), for refusing, on
account of their religious beliefs, to take part in the flag ceremony which
includes playing (by a band) or singing the Philippine national anthem,
saluting the Philippine flag and reciting the patriotic pledge.
In G.R. No. 95770 "Roel Ebralinag, et al. vs. Division Superintendent of
Schools of Cebu and Manuel F. Biongcog, Cebu District Supervisor," the
petitioners are 43 high school and elementary school students in the towns
of Daan Bantayan, Pinamungajan, Carcar, and Taburan Cebu province. All
minors, they are assisted by their parents who belong to the religious group
known as Jehovah's Witnesses which claims some 100,000 "baptized
publishers" in the Philippines.
In G.R No. 95887, "May Amolo, et al. vs. Division Superintendent of Schools
of Cebu and Antonio A. Sangutan," the petitioners are 25 high school and
grade school students enrolled in public schools in Asturias, Cebu, whose
parents are Jehovah's Witnesses. Both petitions were prepared by the same
counsel, Attorney Felino M. Ganal.
All the petitioners in these two cases were expelled from their classes by the
public school authorities in Cebu for refusing to salute the flag, sing the
national anthem and recite the patriotic pledge as required by Republic Act
No. 1265 of July 11, 1955, and by Department Order No. 8 dated July 21,
1955 of the Department of Education, Culture and Sports (DECS) making
the flag ceremony compulsory in all educational institutions. Republic Act No.
1265 provides:

Sec. 1. All educational institutions shall henceforth observe daily flag

ceremony, which shall be simple and dignified and shall include the playing
or singing of the Philippine National anthem.
Sec. 2. The Secretary of Education is hereby authorized and directed to
issue or cause to be issued rules and regulations for the proper conduct of
the flag ceremony herein provided.
Sec. 3. Failure or refusal to observe the flag ceremony provided by this Act
and in accordance with rules and regulations issued by the Secretary of
Education, after proper notice and hearing, shall subject the educational
institution concerned and its head to public censure as an administrative
punishment which shall be published at least once in a newspaper of general
circulation.
In case of failure to observe for the second time the flag-ceremony provided
by this Act, the Secretary of Education, after proper notice and hearing, shall
cause the cancellation of the recognition or permit of the private educational
institution responsible for such failure.
The implementing rules and regulations in Department Order No. 8 provide:
RULES AND REGULATIONS FOR CONDUCTING THE FLAG CEREMONY
IN ALL EDUCATIONAL INSTITUTIONS.
1.
The Filipino Flag shall be displayed by all educational institutions,
public and private, every school day throughout the year. It shall be raised at
sunrise and lowered at sunset. The flag-staff must be straight, slightly and
gently tapering at the end, and of such height as would give the Flag a
commanding position in front of the building or within the compound.
2.
Every public and private educational institution shall hold a flagraising ceremony every morning except when it is raining, in which event the
ceremony may be conducted indoors in the best way possible. A retreat shall
be held in the afternoon of the same day. The flag-raising ceremony in the
morning shall be conducted in the following manner:

122
a.
Pupils and teachers or students and faculty members who are in
school and its premises shall assemble in formation facing the flag. At
command, books shall be put away or held in the left hand and everybody
shall come to attention. Those with hats shall uncover. No one shall enter or
leave the school grounds during the ceremony.
b.
The assembly shall sing the Philippine National Anthem accompanied
by the school band or without the accompaniment if it has none; or the
anthem may be played by the school band alone. At the first note of the
Anthem, the flag shall be raised briskly. While the flag is being raised, all
persons present shall stand at attention and execute a salute. Boys and men
with hats shall salute by placing the hat over the heart. Those without hat
may stand with their arms and hands down and straight at the sides. Those
in military or Boy Scout uniform shall give the salute prescribed by their
regulations. The salute shall be started as the Flag rises, and completed
upon last note of the anthem.
c.
Immediately following the singing of the Anthem, the assembly shall
recite in unison the following patriotic pledge (English or vernacular version),
which may bring the ceremony to a close. This is required of all public
schools and of private schools which are intended for Filipino students or
whose population is predominantly Filipino.
English Version
I love the Philippines.
It is the land of my birth;
It is the home of my people.
It protects me and helps me to be, strong, happy and useful.
In return, I will heed the counsel of my parents;
I will obey the rules of my school;
I will perform the duties of a patriotic, law-abiding citizen;

I will serve my country unselfishly and faithfully;

I will be a true, Filipino in thought, in word, in deed.
xxx

xxx

xxx

Jehovah's Witnesses admittedly teach their children not to salute the flag,
sing the national anthem, and recite the patriotic pledge for they believe that
those are "acts of worship" or "religious devotion" (p. 10, Rollo) which they
"cannot conscientiously give . . . to anyone or anything except God" (p. 8,
Rollo). They feel bound by the Bible's command to "guard ourselves from
idols 1 John 5:21" (p. 9, Rollo). They consider the flag as an image or idol
representing the State (p. 10, Rollo). They think the action of the local
authorities in compelling the flag salute and pledge transcends constitutional
limitations on the State's power and invades the sphere of the intellect and
spirit which the Constitution protect against official control (p. 10, Rollo).
This is not the first time that the question, of whether the children of
Jehovah's Witnesses may be expelled from school for disobedience of R.A.
No. 1265 and Department Order No. 8, series of 1955, has been raised
before this Court.
The same issue was raised in 1959 in Gerona, et al. vs. Secretary of
Education, et al., 106 Phil. 2 (1959) and Balbuna, et al. vs. Secretary of
Education, 110 Phil. 150 (1960). This Court in the Gerona case upheld the
expulsion of the students, thus:
The flag is not an image but a symbol of the Republic of the Philippines, an
emblem of national sovereignty, of national unity and cohesion and of
freedom and liberty which it and the Constitution guarantee and protect.
Under a system of complete separation of church and state in the
government, the flag is utterly devoid of any religious significance. Saluting
the flag does not involve any religious ceremony. The flag salute is no more
a religious ceremony than the taking of an oath of office by a public official or
by a candidate for admission to the bar.

123
In requiring school pupils to participate in the flag salute, the State thru the
Secretary of Education is not imposing a religion or religious belief or a
religious test on said students. It is merely enforcing a

publication in the Official Gazette, Vol. 63, No. 38 of September 21, 1987).
Paragraph 5 of Section 28 gives legislative cachet to the ruling in Gerona,
thus:

non-discriminatory school regulation applicable to all alike whether Christian,

Moslem, Protestant or Jehovah's Witness. The State is merely carrying out
the duty imposed upon it by the Constitution which charges it with
supervision over and regulation of all educational institutions, to establish
and maintain a complete and adequate system of public education, and see
to it that all schools aim to develop, among other things, civic conscience
and teach the duties of citizenship.

5.
Any teacher or student or pupil who refuses to join or participate in
the flag ceremony may be dismissed after due investigation.

The children of Jehovah's Witnesses cannot be exempted from participation

in the flag ceremony. They have no valid right to such exemption. Moreover,
exemption to the requirement will disrupt school discipline and demoralize
the rest of the school population which by far constitutes the great majority.

In 1989, the DECS Regional Office in Cebu received complaints about

teachers and pupils belonging to the Jehovah's Witnesses, and enrolled in
various public and private schools, who refused to sing the Philippine
national anthem, salute the Philippine flag and recite the patriotic pledge.
Division Superintendent of Schools, Susana B. Cabahug of the Cebu
Division of DECS, and Dr. Atty. Marcelo M. Bacalso, Assistant Division
Superintendent, recalling this Court's decision in Gerona, issued Division
Memorandum No. 108, dated November 17, 1989 (pp. 147-148, Rollo of
G.R. No. 95770) directing District Supervisors, High School Principals and
Heads of Private Educational institutions as follows:

The freedom of religious belief guaranteed by the Constitution does not and
cannot mean exemption from or non-compliance with reasonable and nondiscriminatory laws, rules and regulations promulgated by competent
authority. (pp. 2-3).
Gerona was reiterated in Balbuna, as follows:
The Secretary of Education was duly authorized by the Legislature thru
Republic Act 1265 to promulgate said Department Order, and its provisions
requiring the observance of the flag salute, not being a religious ceremony
but an act and profession of love and allegiance and pledge of loyalty to the
fatherland which the flag stands for, does not violate the constitutional
provision on freedom of religion. (Balbuna, et al. vs. Secretary of Education,
et al., 110 Phil. 150).

Republic Act No. 1265 and the ruling in Gerona have been incorporated in
Section 28, Title VI, Chapter 9 of the Administrative Code of 1987 (Executive
Order No. 292) which took effect on September 21, 1988 (one year after its

However, the petitioners herein have not raised in issue the constitutionality
of the above provision of the new Administrative Code of 1987. They have
targeted only Republic Act No. 1265 and the implementing orders of the
DECS.

1.
Reports reaching this Office disclose that there are a number of
teachers, pupils, students, and school employees in public schools who
refuse to salute the Philippine flag or participate in the daily flag ceremony
because of some religious belief.
2.
Such refusal not only undermines Republic Act No. 1265 and the
DECS Department Order No. 8, Series of 1955 (Implementing Rules and
Regulations) but also strikes at the heart of the DECS sustained effort to
inculcate patriotism and nationalism.
3.
Let it be stressed that any belief that considers the flag as an image
is not in any manner whatever a justification for not saluting the Philippine

124
flag or not participating in flag ceremony. Thus, the Supreme Court of the
Philippine says:
The flag is not an image but a symbol of the Republic of the Philippines, an
emblem of national sovereignty, of national unity and cohesion and freedom
and liberty which it and the Constitution guarantee and protect. (Gerona, et
al. vs. Sec. of Education, et al., 106 Phil. 11.)
4.
As regards the claim for freedom of belief, which an objectionist may
advance, the Supreme Court asserts:
But between the freedom of belief and the exercise of said belief, there is
quite a stretch of road to travel. If the exercise of said religious belief clashes
with the established institutions of society and with the law, then the former
must yield and give way to the latter. (Gerona, et al. vs. Sec. of Education, et
al., 106 Phil. 11.)
5.
Accordingly, teachers and school employees who choose not to
participate in the daily flag ceremony or to obey the flag salute regulation
spelled out in Department Order No. 8, Series of 1955, shall be considered
removed from the service after due process.
6.
In strong language about pupils and students who do the same the
Supreme Court has this to say:
If they choose not to obey the flag salute regulation, they merely lost the
benefits of public education being maintained at the expense of their fellow
Citizens, nothing more. According to a popular expression, they could take it
or leave it! Having elected not to comply with the regulation about the flag
salute they forfeited their right to attend public schools. (Gerona, et al. vs.
Sec. of Education, et al., 106 Phil. 15.)
7.
School administrators shall therefore submit to this Office a report on
those who choose not to participate in flag ceremony or salute the Philippine
flag. (pp. 147-148, Rollo of G.R. No. 95770; Emphasis supplied).

Cebu school officials resorted to a number of ways to persuade the children

of Jehovah's Witnesses to obey the memorandum. In the Buenavista
Elementary School, the children were asked to sign an Agreement
(Kasabutan) in the Cebuano dialect promising to sing the national anthem,
place their right hand on their breast until the end of the song and recite the
pledge of allegiance to the flag (Annex D, p. 46, Rollo of G.R. No. 95770 and
p. 48, Rollo of G.R. No. 95887), but they refused to sign the "Kasabutan" (p.
20, Rollo of G.R. No. 95770).
In Tubigmanok Elementary School, the Teacher-In-Charge, Antonio A.
Sangutan, met with the Jehovah's Witnesses' parents, as disclosed in his
letter of October 17, 1990, excerpts from which reveal the following:
After two (2) fruitless confrontation meetings with the Jehovah's Witnesses'
parents on October 2, 1990 and yesterday due to their firm stand not to
salute the flag of the Republic of the Philippines during Flag Ceremony and
other occasions, as mandated by law specifically Republic Act No. 1265, this
Office hereby orders the dropping from the list in the School Register (BPS
Form I) of all teachers, all Jehovah Witness pupils from Grade I up to Grade
VI effective today.
xxx

xxx

xxx

This order is in compliance with Division Memorandum No. 108 s. 1989

dated November 17, 1989 by virtue of Department Order No. 8 s. 1955 dated
July 21, 1955 in accordance with Republic Act No. 1265 and Supreme Court
Decision of a case "Genaro Gerona, et al., Petitioners and Appellants vs.
The Honorable Secretary of Education, et al., Respondents and Appellees'
dated August 12, 1959 against their favor. (p. 149, Rollo of G.R. No. 95770.)
In the Daan Bantayan District, the District Supervisor, Manuel F. Biongcog,
ordered the "dropping from the rolls" of students who "opted to follow their
religious belief which is against the Flag Salute Law" on the theory that "they
forfeited their right to attend public schools." (p. 47, Rollo of G.R. No. 95770.)

125
1st Indorsement
DAANBANTAYAN DISTRICT II
Daanbantayan, Cebu, July 24, 1990.
Respectfully returned to Mrs. Alicia A. Diaz, School In Charge [sic], Agujo
Elementary School with the information that this office is sad to order the
dropping of Jeremias Diamos and Jeaneth Diamos, Grades III and IV pupils
respectively from the roll since they opted to follow their religious belief which
is against the Flag Salute Law (R.A. 1265) and DECS Order No. 8, series of
1955, having elected not to comply with the regulation about the flag salute
they forfeited their right to attend public schools (Gerona, et al. vs. Sec. of
Education, et al., 106 Philippines 15). However, should they change their
mind to respect and follow the Flag Salute Law they may be re-accepted.
(Sgd.) MANUEL F. BIONGCOG
District Supervisor
(p. 47, Rollo of G.R. No. 95770.)
The expulsion as of October 23, 1990 of the 43 petitioning students of the
Daanbantayan National High School, Agujo Elementary School, Calape
Barangay National High School, Pinamungajan Provincial High School,
Tabuelan Central School, Canasojan Elementary School, Liboron
Elementary School, Tagaytay Primary School, San Juan Primary School and
Northern Central Elementary School of San Fernando, Cebu, upon order of
then Acting Division Superintendent Marcelo Bacalso, prompted some
Jehovah's Witnesses in Cebu to appeal to the Secretary of Education Isidro
Cario but the latter did not answer their letter. (p. 21, Rollo.)
The petition in G.R. No. 95887 was filed by 25 students who were similarly
expelled because Dr. Pablo Antopina, who succeeded Susana Cabahug as
Division Superintendent of Schools, would not recall the expulsion orders of
his predecessor. Instead, he verbally caused the expulsion of some more
children of Jehovah's Witnesses.

On October 31, 1990, the students and their parents filed these special civil
actions for Mandamus, Certiorari and Prohibition alleging that the public
respondents acted without or in excess of their jurisdiction and with grave
abuse of discretion (1) in ordering their expulsion without prior notice and
hearing, hence, in violation of their right to due process, their right to free
public education, and their right to freedom of speech, religion and worship
(p. 23, Rollo). The petitioners pray that:
c.

Judgment be rendered:

i.
declaring null and void the expulsion or dropping from the rolls of
herein petitioners from their respective schools;
ii.
prohibiting and enjoining respondent from further barring the
petitioners from their classes or otherwise implementing the expulsion
ordered on petitioners; and
iii.
compelling the respondent and all persons acting for him to admit
and order the re-admission of petitioners to their respective schools. (p. 41,
Rollo.)
and that pending the determination of the merits of these cases, a temporary
restraining order be issued enjoining the respondents from enforcing the
expulsion of the petitioners and to re-admit them to their respective classes.
On November 27, 1990, the Court issued a temporary restraining order and
a writ of preliminary mandatory injunction commanding the respondents to
immediately re-admit the petitioners to their respective classes until further
orders from this Court (p. 57, Rollo).
The Court also ordered the Secretary of Education and Cebu District
Supervisor Manuel F. Biongcog to be impleaded as respondents in these
cases.
On May 13, 1991, the Solicitor General filed a consolidated comment to the
petitions (p. 98, Rollo) defending the expulsion orders issued by the public
respondents on the grounds that:

126
1.
Bizarre religious practices of the Jehovah's Witnesses produce
rebellious and anti-social school children and consequently disloyal and
mutant Filipino citizens.
2.
There are no new and valid grounds to sustain the charges of the
Jehovah's Witnesses that the DECS' rules and regulations on the flag salute
ceremonies are violative of their freedom of religion and worship.
3.
The flag salute is devoid of any religious significance; instead, it
inculcates respect and love of country, for which the flag stands.
4.
The State's compelling interests being pursued by the DECS' lawful
regulations in question do not warrant exemption of the school children of the
Jehovah's Witnesses from the flag salute ceremonies on the basis of their
own self-perceived religious convictions.
5.
The issue is not freedom of speech but enforcement of law and
jurisprudence.
6.
State's power to regulate repressive and unlawful religious practices
justified, besides having scriptural basis.
7.
The penalty of expulsion is legal and valid, more so with the
enactment of Executive Order No. 292 (The Administrative Code of 1987).
Our task here is extremely difficult, for the 30-year old decision of this court
in Gerona upholding the flag salute law and approving the expulsion of
students who refuse to obey it, is not lightly to be trifled with.
It is somewhat ironic however, that after the Gerona ruling had received
legislative cachet by its in corporation in the Administrative Code of 1987, the
present Court believes that the time has come to re-examine it. The idea that
one may be compelled to salute the flag, sing the national anthem, and
recite the patriotic pledge, during a flag ceremony on pain of being dismissed
from one's job or of being expelled from school, is alien to the conscience of
the present generation of Filipinos who cut their teeth on the Bill of Rights
which guarantees their rights to free speech ** and the free exercise of

religious profession and worship (Sec. 5, Article III, 1987 Constitution; Article
IV, Section 8, 1973 Constitution; Article III, Section 1[7], 1935 Constitution).
Religious freedom is a fundamental right which is entitled to the highest
priority and the amplest protection among human rights, for it involves the
relationship of man to his Creator (Chief Justice Enrique M. Fernando's
separate opinion in German vs. Barangan, 135 SCRA 514, 530-531).
The right to religious profession and worship has a two-fold aspect, vis.,
freedom to believe and freedom to act on one's belief. The first is absolute
as long as the belief is confined within the realm of thought. The second is
subject to regulation where the belief is translated into external acts that
affect the public welfare (J. Cruz, Constitutional Law, 1991 Ed., pp. 176-177).
Petitioners stress, however, that while they do not take part in the
compulsory flag ceremony, they do not engage in "external acts" or behavior
that would offend their countrymen who believe in expressing their love of
country through the observance of the flag ceremony. They quietly stand at
attention during the flag ceremony to show their respect for the right of those
who choose to participate in the solemn proceedings (Annex F, Rollo of G.R.
No. 95887, p. 50 and Rollo of G.R. No. 95770, p. 48). Since they do not
engage in disruptive behavior, there is no warrant for their expulsion.
The sole justification for a prior restraint or limitation on the exercise of
religious freedom (according to the late Chief Justice Claudio Teehankee in
his dissenting opinion in German vs. Barangan, 135 SCRA 514, 517) is the
existence of a grave and present 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, that the State has a right (and duty) to
prevent." Absent such a threat to public safety, the expulsion of the
petitioners from the schools is not justified.
The situation that the Court directly predicted in Gerona that:

127
The flag ceremony will become a thing of the past or perhaps conducted with
very few participants, and the time will come when we would have citizens
untaught and uninculcated in and not imbued with reverence for the flag and
love of country, admiration for national heroes, and patriotism a pathetic,
even tragic situation, and all because a small portion of the school population
imposed its will, demanded and was granted an exemption. (Gerona, p. 24.)
has not come to pass. We are not persuaded that by exempting the
Jehovah's Witnesses from saluting the flag, singing the national anthem and
reciting the patriotic pledge, this religious group which admittedly comprises
a "small portion of the school population" will shake up our part of the globe
and suddenly produce a nation "untaught and uninculcated in and unimbued
with reverence for the flag, patriotism, love of country and admiration for
national heroes" (Gerona vs. Sec. of Education, 106 Phil. 2, 24). After all,
what the petitioners seek only is exemption from the flag ceremony, not
exclusion from the public schools where they may study the Constitution, the
democratic way of life and form of government, and learn not only the arts,
sciences, Philippine history and culture but also receive training for a
vocation of profession and be taught the virtues of "patriotism, respect for
human rights, appreciation for national heroes, the rights and duties of
citizenship, and moral and spiritual values (Sec. 3[2], Art. XIV, 1987
Constitution) as part of the curricula. Expelling or banning the petitioners
from Philippine schools will bring about the very situation that this Court had
feared in Gerona. Forcing a small religious group, through the iron hand of
the law, to participate in a ceremony that violates their religious beliefs, will
hardly be conducive to love of country or respect for dully constituted
authorities.
As Mr. Justice Jackson remarked in West Virginia vs. Barnette, 319 U.S. 624
(1943):
. . . To believe that patriotism will not flourish if patriotic ceremonies are
voluntary and spontaneous instead of a compulsory routine is to make an
unflattering estimate of the appeal of our institutions to free minds. . . . When
they [diversity] are so harmless to others or to the State as those we deal

with here, the price is not too great. But freedom to differ is not limited to
things that do not matter much. That would be a mere shadow of freedom.
The test of its substance is the right to differ as to things that touch the heart
of the existing order.
Furthermore, let it be noted that coerced unity and loyalty even to the
country, . . . assuming that such unity and loyalty can be attained through
coercion is not a goal that is constitutionally obtainable at the expense of
religious liberty. A desirable end cannot be promoted by prohibited means.
(Meyer vs. Nebraska, 262 U.S. 390, 67 L. ed. 1042, 1046.)
Moreover, the expulsion of members of Jehovah's Witnesses from the
schools where they are enrolled will violate their right as Philippine citizens,
under the 1987 Constitution, to receive free education, for it is the duty of the
State to "protect and promote the right of all citizens to quality education . . .
and to make such education accessible to all (Sec. 1, Art. XIV).
In Victoriano vs. Elizalde Rope Workers' Union, 59 SCRA 54, 72-75, we
upheld the exemption of members of the Iglesia ni Cristo, from the coverage
of a closed shop agreement between their employer and a union because it
would violate the teaching of their church not to join any labor group:
. . . It is certain that not every conscience can be accommodated by all the
laws of the land; but when general laws conflict with scruples of conscience,
exemptions ought to be granted unless some "compelling state interests"
intervenes. (Sherbert vs. Berner, 374 U.S. 398, 10 L. Ed. 2d 965, 970, 83 S.
Ct. 1790.)
We hold that a similar exemption may be accorded to the Jehovah's
Witnesses with regard to the observance of the flag ceremony out of respect
for their religious beliefs, however "bizarre" those beliefs may seem to
others. Nevertheless, their right not to participate in the flag ceremony does
not give them a right to disrupt such patriotic exercises. Paraphrasing the
warning cited by this Court in Non vs. Dames II, 185 SCRA 523, 535, while
the highest regard must be afforded their right to the free exercise of their
religion, "this should not be taken to mean that school authorities are

128
powerless to discipline them" if they should commit breaches of the peace by
actions that offend the sensibilities, both religious and patriotic, of other
persons. If they quietly stand at attention during the flag ceremony while their
classmates and teachers salute the flag, sing the national anthem and recite
the patriotic pledge, we do not see how such conduct may possibly disturb
the peace, or pose "a grave and present danger of a serious evil to public
safety, public morals, public health or any other legitimate public interest that
the State has a right (and duty) to prevent (German vs. Barangan, 135
SCRA 514, 517).
Before we close this decision, it is appropriate to recall the Japanese
occupation of our country in 1942-1944 when every Filipino, regardless of
religious persuasion, in fear of the invader, saluted the Japanese flag and
bowed before every Japanese soldier. Perhaps, if petitioners had lived
through that dark period of our history, they would not quibble now about
saluting the Philippine flag. For when liberation came in 1944 and our own
flag was proudly hoisted aloft again, it was a beautiful sight to behold that
made our hearts pound with pride and joy over the newly-regained freedom
and sovereignty of our nation.
Although the Court upholds in this decision the petitioners' right under our
Constitution to refuse to salute the Philippine flag on account of their
religious beliefs, we hope, nevertheless, that another foreign invasion of our
country will not be necessary in order for our countrymen to appreciate and
cherish the Philippine flag.
WHEREFORE, the petition for certiorari and prohibition is GRANTED. The
expulsion orders issued by the public respondents against the petitioners are
hereby ANNULLED AND SET ASIDE. The temporary restraining order which
was issued by this Court is hereby made permanent.
SO ORDERED.

Narvasa, C.J., Feliciano, Bidin, Regalado, Davide, Jr., Romero, Nocon,

Bellosillo, Melo and Campos, Jr., JJ., concur.
Quiason, J., took no part.
Gutierrez, Jr., J., is on leave.

129
EN BANC
[G.R. No. 153888. July 9, 2003]
ISLAMIC DAWAH COUNCIL OF THE PHILIPPINES, INC., herein
represented by PROF. ABDULRAFIH H. SAYEDY, petitioner, vs. OFFICE OF
THE EXECUTIVE SECRETARY of the Office of the President of the
Philippines, herein represented by HON. ALBERTO G. ROMULO, Executive
Secretary, and the OFFICE ON MUSLIM AFFAIRS, herein represented by its
Executive Director, HABIB MUJAHAB HASHIM, respondents.
DECISION
CORONA, J.:
Before us is a petition for prohibition filed by petitioner Islamic Dawah
Council of the Philippines, Inc. (IDCP) praying for the declaration of nullity of
Executive Order (EO) 46, s. 2001 and the prohibition of herein respondents
Office of the Executive Secretary and Office of Muslim Affairs (OMA) from
implementing the subject EO.
Petitioner IDCP, a corporation that operates under Department of Social
Welfare and Development License No. SB-01-085, is a non-governmental
organization that extends voluntary services to the Filipino people, especially
to Muslim communities. It claims to be a federation of national Islamic
organizations and an active member of international organizations such as
the Regional Islamic Dawah Council of Southeast Asia and the Pacific
(RISEAP)[1] and The World Assembly of Muslim Youth. The RISEAP
accredited petitioner to issue halal[2] certifications in the Philippines. Thus,
among the functions petitioner carries out is to conduct seminars, orient
manufacturers on halal food and issue halal certifications to qualified
products and manufacturers.
Petitioner alleges that, on account of the actual need to certify food products
as halal and also due to halal food producers request, petitioner formulated
in 1995 internal rules and procedures based on the Quran[3] and the
Sunnah[4] for the analysis of food, inspection thereof and issuance of halal

certifications. In that same year, petitioner began to issue, for a fee,

certifications to qualified products and food manufacturers. Petitioner even
adopted for use on its halal certificates a distinct sign or logo registered in
the Philippine Patent Office under Patent No. 4-2000-03664.
On October 26, 2001, respondent Office of the Executive Secretary issued
EO 46[5] creating the Philippine Halal Certification Scheme and designating
respondent OMA to oversee its implementation. Under the EO, respondent
OMA has the exclusive authority to issue halal certificates and perform other
related regulatory activities.
On May 8, 2002, a news article entitled OMA Warns NGOs Issuing Illegal
Halal Certification was published in the Manila Bulletin, a newspaper of
general circulation. In said article, OMA warned Muslim consumers to buy
only products with its official halal certification since those without said
certification had not been subjected to careful analysis and therefore could
contain pork or its derivatives. Respondent OMA also sent letters to food
manufacturers asking them to secure the halal certification only from OMA
lest they violate EO 46 and RA 4109.[6] As a result, petitioner lost revenues
after food manufacturers stopped securing certifications from it.
Hence, this petition for prohibition.
Petitioner contends that the subject EO violates the constitutional provision
on the separation of Church and State.[7] It is unconstitutional for the
government to formulate policies and guidelines on the halal certification
scheme because said scheme is a function only religious organizations,
entity or scholars can lawfully and validly perform for the Muslims. According
to petitioner, a food product becomes halal only after the performance of
Islamic religious ritual and prayer. Thus, only practicing Muslims are qualified
to slaughter animals for food. A government agency like herein respondent
OMA cannot therefore perform a religious function like certifying qualified
food products as halal.

130
Petitioner also maintains that the respondents violated Section 10, Article III
of the 1987 Constitution which provides that (n)o law impairing the obligation
of contracts, shall be passed. After the subject EO was implemented, food
manufacturers with existing contracts with petitioner ceased to obtain
certifications from the latter.
Moreover, petitioner argues that the subject EO violates Sections 15 and 16
of Article XIII of the 1987 Constitution which respectively provide:
ROLE AND RIGHTS OF PEOPLES ORGANIZATIONS
Sec. 15. The State shall respect the role of independent peoples
organizations to enable the people to pursue and protect, within the
democratic framework, their legitimate and collective interests and
aspirations through peaceful and lawful means.
Peoples organizations are bona fide associations of citizens with
demonstrated capacity to promote the public interest and with identifiable
leadership, membership, and structure.
Sec. 16. The rights of the people and their organizations to effective and
reasonable participation at all levels of social, political, and economic
decision-making shall not be abridged. The State shall, by law, facilitate, the
establishment of adequate consultation mechanisms.
According to petitioner, the subject EO was issued with utter haste and
without even consulting Muslim peoples organizations like petitioner before it
became effective.
We grant the petition.
OMA was created in 1981 through Executive Order No. 697 (EO 697) to
ensure the integration of Muslim Filipinos into the mainstream of Filipino
society with due regard to their beliefs, customs, traditions, and institutions.
[8] OMA deals with the societal, legal, political and economic concerns of the
Muslim community as a national cultural community and not as a religious
group. Thus, bearing in mind the constitutional barrier between the Church

and State, the latter must make sure that OMA does not intrude into purely
religious matters lest it violate the non-establishment clause and the free
exercise of religion provision found in Article III, Section 5 of the 1987
Constitution.[9]
Freedom of religion was accorded preferred status by the framers of our
fundamental law. And this Court has consistently affirmed this preferred
status, well aware that it is "designed to protect the broadest possible liberty
of conscience, to allow each man to believe as his conscience directs, to
profess his beliefs, and to live as he believes he ought to live, consistent with
the liberty of others and with the common good.[10]
Without doubt, classifying a food product as halal is a religious function
because the standards used are drawn from the Quran and Islamic beliefs.
By giving OMA the exclusive power to classify food products as halal, EO 46
encroached on the religious freedom of Muslim organizations like herein
petitioner to interpret for Filipino Muslims what food products are fit for
Muslim consumption. Also, by arrogating to itself the task of issuing halal
certifications, the State has in effect forced Muslims to accept its own
interpretation of the Quran and Sunnah on halal food.
To justify EO 46s intrusion into the subject religious activity, the Solicitor
General argues that the freedom of religion is subservient to the police
power of the State. By delegating to OMA the authority to issue halal
certifications, the government allegedly seeks to protect and promote the
muslim Filipinos right to health, and to instill health consciousness in them.
We disagree.
Only the prevention of an immediate and grave danger to the security and
welfare of the community can justify the infringement of religious freedom.
[11] If the government fails to show the seriousness and immediacy of the
threat, State intrusion is constitutionally unacceptable. In a society with a
democratic framework like ours, the State must minimize its interference with
the affairs of its citizens and instead allow them to exercise reasonable
freedom of personal and religious activity.

131
In the case at bar, we find no compelling justification for the government to
deprive Muslim organizations, like herein petitioner, of their religious right to
classify a product as halal, even on the premise that the health of Muslim
Filipinos can be effectively protected by assigning to OMA the exclusive
power to issue halal certifications. The protection and promotion of the
Muslim Filipinos right to health are already provided for in existing laws and
ministered to by government agencies charged with ensuring that food
products released in the market are fit for human consumption, properly
labeled and safe. Unlike EO 46, these laws do not encroach on the religious
freedom of Muslims.
Section 48(4) of the Administrative Code of 1987 gives to the National Meat
Inspection Commission (NMIC) of the Department of Agriculture (DOA) the
power to inspect slaughtered animals intended for human consumption to
ensure the safety of the meat released in the market. Another law, RA 7394,
otherwise known as The Consumer Act of 1992, gives to certain government
departments the duty to protect the interests of the consumer, promote his
general welfare and to establish standards of conduct for business and
industry.[12] To this end, a food product, before its distribution to the market,
is required to secure the Philippine Standard Certification Mark after the
concerned department inspects and certifies its compliance with quality and
safety standards.[13]
One such government agency designated by RA 7394 is the Bureau of Food
and Drugs (BFD) of the Department of Health (DOH). Under Article 22 of
said law, BFD has the duty to promulgate and enforce rules and regulations
fixing and establishing a reasonable definition and standard of identity, a
standard of quality and a standard of fill of containers for food. The BFD also
ensures that food products released in the market are not adulterated.[14]
Furthermore, under Article 48 of RA 7394, the Department of Trade and
Industry (DTI) is tasked to protect the consumer against deceptive, unfair
and unconscionable sales acts or practices as defined in Article 50.[15] DTI
also enforces compulsory labeling and fair packaging to enable the
consumer to obtain accurate information as to the nature, quality and

quantity of the contents of consumer products and to facilitate his

comparison of the value of such products.[16]
With these regulatory bodies given detailed functions on how to screen and
check the quality and safety of food products, the perceived danger against
the health of Muslim and non-Muslim Filipinos alike is totally avoided. Of
great help are the provisions on labeling of food products (Articles 74 to 85)
[17] of RA 7394. In fact, through these labeling provisions, the State ably
informs the consuming public of the contents of food products released in the
market. Stiff sanctions are imposed on violators of said labeling
requirements.
Through the laws on food safety and quality, therefore, the State indirectly
aids Muslim consumers in differentiating food from non-food products. The
NMIC guarantees that the meat sold in the market has been thoroughly
inspected and fit for consumption. Meanwhile, BFD ensures that food
products are properly categorized and have passed safety and quality
standards. Then, through the labeling provisions enforced by the DTI,
Muslim consumers are adequately apprised of the products that contain
substances or ingredients that, according to their Islamic beliefs, are not fit
for human intake. These are the non-secular steps put in place by the State
to ensure that the Muslim consumers right to health is protected. The halal
certifications issued by petitioner and similar organizations come forward as
the official religious approval of a food product fit for Muslim consumption.
We do not share respondents apprehension that the absence of a central
administrative body to regulate halal certifications might give rise to
schemers who, for profit, will issue certifications for products that are not
actually halal. Aside from the fact that Muslim consumers can actually verify
through the labels whether a product contains non-food substances, we
believe that they are discerning enough to know who the reliable and
competent certifying organizations in their community are. Before purchasing
a product, they can easily avert this perceived evil by a diligent inquiry on the
reliability of the concerned certifying organization.

132
WHEREFORE, the petition is GRANTED. Executive Order 46, s. 2001, is
hereby declared NULL AND VOID. Consequently, respondents are prohibited
from enforcing the same.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Panganiban, Ynares-Santiago, Carpio, AustriaMartinez, Carpio-Morales, C

133
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-45459

March 13, 1937

GREGORIO AGLIPAY, petitioner,

vs.
JUAN RUIZ, respondent.
Vicente Sotto for petitioner.
Office of the Solicitor-General Tuason for respondent.
LAUREL, J.:
The petitioner, Mons. Gregorio Aglipay, Supreme Head of the Philippine
Independent Church, seeks the issuance from this court of a writ of
prohibition to prevent the respondent Director of Posts from issuing and
selling postage stamps commemorative of the Thirty-third International
Eucharistic Congress.
In May, 1936, the Director of Posts announced in the dailies of Manila that he
would order the issues of postage stamps commemorating the celebration in
the City of Manila of the Thirty-third international Eucharistic Congress,
organized by the Roman Catholic Church. The petitioner, in the fulfillment of
what he considers to be a civic duty, requested Vicente Sotto, Esq., member
of the Philippine Bar, to denounce the matter to the President of the
Philippines. In spite of the protest of the petitioner's attorney, the respondent
publicly announced having sent to the United States the designs of the
postage stamps for printing as follows:

"In the center is chalice, with grape vine and stalks of wheat as border
design. The stamps are blue, green, brown, cardinal red, violet and orange,
1 inch by 1,094 inches. The denominations are for 2, 6, 16, 20, 36 and 50
centavos." The said stamps were actually issued and sold though the greater
part thereof, to this day, remains unsold. The further sale of the stamps is
sought to be prevented by the petitioner herein.
The Solicitor-General contends that the writ of prohibition is not the proper
legal remedy in the instant case, although he admits that the writ may
properly restrain ministerial functions. While, generally, prohibition as an
extraordinary legal writ will not issue to restrain or control the performance of
other than judicial or quasi-judicial functions (50 C. J., 6580, its issuance and
enforcement are regulated by statute and in this jurisdiction may issue to . . .
inferior tribunals, corporations, boards, or persons, whether excercising
functions judicial or ministerial, which are without or in excess of the
jurisdiction of such tribunal, corporation, board, or person, . . . ." (Secs. 516
and 226, Code of Civil Procedure.) The terms "judicial" and "ministerial" used
with reference to "functions" in the statute are undoubtedly comprehensive
and include the challenged act of the respondent Director of Posts in the
present case, which act because alleged to be violative of the Constitution is
a fortiorari "without or in excess of . . . jurisdiction." The statutory rule,
therefore, in the jurisdiction is that the writ of prohibition is not confined
exclusively to courts or tribunals to keep them within the limits of their own
jurisdiction and to prevent them from encroaching upon the jurisdiction of
other tribunals, but will issue, in appropriate cases, to an officer or person
whose acts are without or in excess of his authority. Not infrequently, "the
writ is granted, where it is necessary for the orderly administration of justice,
or to prevent the use of the strong arm of the law in an oppressive or
vindictive manner, or a multiplicity of actions." (Dimayuga and Fajardo vs.
Fernandez [1923], 43 Phil., 304, 307.)
The more important question raised refers to the alleged violation of the
Constitution by the respondent in issuing and selling postage stamps
commemorative of the Thirty-third International Eucharistic Congress. It is
alleged that this action of the respondent is violative of the provisions of

134
section 23, subsection 3, Article VI, of the Constitution of the Philippines,
which provides as follows:
No public money or property shall ever be appropriated, applied, or used,
directly or indirectly, for the use, benefit, or support of any sect, church,
denomination, secretarian, institution, or system of religion, or for the use,
benefit, or support of any priest, preacher, minister, or other religious teacher
or dignitary as such, except when such priest, preacher, minister, or dignitary
is assigned to the armed forces or to any penal institution, orphanage, or
leprosarium.
The prohibition herein expressed is a direct corollary of the principle of
separation of church and state. Without the necessity of adverting to the
historical background of this principle in our country, it is sufficient to say that
our history, not to speak of the history of mankind, has taught us that the
union of church and state is prejudicial to both, for ocassions might arise
when the estate will use the church, and the church the state, as a weapon
in the furtherance of their recognized this principle of separation of church
and state in the early stages of our constitutional development; it was
inserted in the Treaty of Paris between the United States and Spain of
December 10, 1898, reiterated in President McKinley's Instructions of the
Philippine Commission, reaffirmed in the Philippine Bill of 1902 and in the
autonomy Act of August 29, 1916, and finally embodied in the constitution of
the Philippines as the supreme expression of the Filipino people. It is almost
trite to say now that in this country we enjoy both religious and civil freedom.
All the officers of the Government, from the highest to the lowest, in taking
their oath to support and defend the constitution, bind themselves to
recognize and respect the constitutional guarantee of religious freedom, with
its inherent limitations and recognized implications. It should be stated that
what is guaranteed by our Constitution is religious liberty, not mere religious
toleration.
Religious freedom, however, as a constitutional mandate is not inhibition of
profound reverence for religion and is not denial of its influence in human
affairs. Religion as a profession of faith to an active power that binds and

elevates man to his Creator is recognized. And, in so far as it instills into the
minds the purest principles of morality, its influence is deeply felt and highly
appreciated. When the Filipino people, in the preamble of their Constitution,
implored "the aid of Divine Providence, in order to establish a government
that shall embody their ideals, conserve and develop the patrimony of the
nation, promote the general welfare, and secure to themselves and their
posterity the blessings of independence under a regime of justice, liberty and
democracy," they thereby manifested reliance upon Him who guides the
destinies of men and nations. The elevating influence of religion in human
society is recognized here as elsewhere. In fact, certain general concessions
are indiscriminately accorded to religious sects and denominations. Our
Constitution and laws exempt from taxation properties devoted exclusively to
religious purposes (sec. 14, subsec. 3, Art. VI, Constitution of the Philippines
and sec. 1, subsec. 4, Ordinance appended thereto; Assessment Law, sec.
344, par. [c]. Adm. Code). Sectarian aid is not prohibited when a priest,
preacher, minister or other religious teacher or dignitary as such is assigned
to the armed forces or to any penal institution, orphanage or leprosarium 9
sec. 13, subsec. 3, Art. VI, Constitution of the Philippines). Optional religious
instruction in the public schools is by constitutional mandate allowed (sec. 5,
Art. XIII, Constitution of the Philippines, in relation to sec. 928, Adm. Code).
Thursday and Friday of Holy Week, Thanksgiving Day, Christmas Day, and
Sundays and made legal holidays (sec. 29, Adm. Code) because of the
secular idea that their observance is conclusive to beneficial moral results.
The law allows divorce but punishes polygamy and bigamy; and certain
crimes against religious worship are considered crimes against the
fundamental laws of the state (see arts. 132 and 133, Revised Penal Code).
In the case at bar, it appears that the respondent Director of Posts issued the
postage stamps in question under the provisions of Act No. 4052 of the
Philippine Legislature. This Act is as follows:
No. 4052. AN ACT APPROPRIATING THE SUM OF SIXTY THOUSAND
PESOS AND MAKING THE SAME AVAILABLE OUT OF ANY FUNDS IN
THE INSULAR TREASURY NOT OTHERWISE APPROPRIATED FOR THE

135
COST OF PLATES AND PRINTING OF POSTAGE STAMPS WITH NEW
DESIGNS, AND FOR OTHER PURPOSES.
Be it enacted by the Senate and House of Representatives of the Philippines
in Legislature assembled and by the authority of the same:
SECTION 1. The sum of sixty thousand pesos is hereby appropriated and
made immediately available out of any funds in the Insular Treasury not
otherwise appropriated, for the costs of plates and printing of postage
stamps with new designs, and other expenses incident thereto.
SEC. 2. The Director of Posts, with the approval of the Secretary of Public
Works and Communications, is hereby authorized to dispose of the whole or
any portion of the amount herein appropriated in the manner indicated and
as often as may be deemed advantageous to the Government.
SEC. 3. This amount or any portion thereof not otherwise expended shall not
revert to the Treasury.
SEC. 4. This act shall take effect on its approval.
Approved, February 21, 1933.
It will be seen that the Act appropriates the sum of sixty thousand pesos for
the costs of plates and printing of postage stamps with new designs and
other expenses incident thereto, and authorizes the Director of Posts, with
the approval of the Secretary of Public Works and Communications, to
dispose of the amount appropriated in the manner indicated and "as often as
may be deemed advantageous to the Government". The printing and
issuance of the postage stamps in question appears to have been approved
by authority of the President of the Philippines in a letter dated September 1,
1936, made part of the respondent's memorandum as Exhibit A. The
respondent alleges that the Government of the Philippines would suffer
losses if the writ prayed for is granted. He estimates the revenue to be
derived from the sale of the postage stamps in question at P1,618,17.10 and
states that there still remain to be sold stamps worth P1,402,279.02.

Act No. 4052 contemplates no religious purpose in view. What it gives the
Director of Posts is the discretionary power to determine when the issuance
of special postage stamps would be "advantageous to the Government." Of
course, the phrase "advantageous to the Government" does not authorize
the violation of the Constitution. It does not authorize the appropriation, use
or application of public money or property for the use, benefit or support of a
particular sect or church. In the present case, however, the issuance of the
postage stamps in question by the Director of Posts and the Secretary of
Public Works and Communications was not inspired by any sectarian
denomination. The stamps were not issue and sold for the benefit of the
Roman Catholic Church. Nor were money derived from the sale of the
stamps given to that church. On the contrary, it appears from the latter of the
Director of Posts of June 5, 1936, incorporated on page 2 of the petitioner's
complaint, that the only purpose in issuing and selling the stamps was "to
advertise the Philippines and attract more tourist to this country." The officials
concerned merely, took advantage of an event considered of international
importance "to give publicity to the Philippines and its people" (Letter of the
Undersecretary of Public Works and Communications to the President of the
Philippines, June 9, 1936; p. 3, petitioner's complaint). It is significant to note
that the stamps as actually designed and printed (Exhibit 2), instead of
showing a Catholic Church chalice as originally planned, contains a map of
the Philippines and the location of the City of Manila, and an inscription as
follows: "Seat XXXIII International Eucharistic Congress, Feb. 3-7,1937."
What is emphasized is not the Eucharistic Congress itself but Manila, the
capital of the Philippines, as the seat of that congress. It is obvious that while
the issuance and sale of the stamps in question may be said to be
inseparably linked with an event of a religious character, the resulting
propaganda, if any, received by the Roman Catholic Church, was not the aim
and purpose of the Government. We are of the opinion that the Government
should not be embarassed in its activities simply because of incidental
results, more or less religious in character, if the purpose had in view is one
which could legitimately be undertaken by appropriate legislation. The main
purpose should not be frustrated by its subordinate to mere incidental results

136
not contemplated. (Vide Bradfield vs. Roberts, 175 U. S., 295; 20 Sup. Ct.
Rep., 121; 44 Law. ed., 168.)
We are much impressed with the vehement appeal of counsel for the
petitioner to maintain inviolate the complete separation of church and state
and curb any attempt to infringe by indirection a constitutional inhibition.
Indeed, in the Philippines, once the scene of religious intolerance and
prescription, care should be taken that at this stage of our political
development nothing is done by the Government or its officials that may lead
to the belief that the Government is taking sides or favoring a particular
religious sect or institution. But, upon very serious reflection, examination of
Act No. 4052, and scrutiny of the attending circumstances, we have come to
the conclusion that there has been no constitutional infraction in the case at
bar, Act No. 4052 grants the Director of Posts, with the approval of the
Secretary of Public Works and Communications, discretion to misuse
postage stamps with new designs "as often as may be deemed
advantageous to the Government." Even if we were to assume that these
officials made use of a poor judgment in issuing and selling the postage
stamps in question still, the case of the petitioner would fail to take in weight.
Between the exercise of a poor judgment and the unconstitutionality of the
step taken, a gap exists which is yet to be filled to justify the court in setting
aside the official act assailed as coming within a constitutional inhibition.
The petition for a writ of prohibition is hereby denied, without pronouncement
as to costs. So ordered.
Avancea, C.J., Villa-Real, Abad Santos, Imperial, Diaz and Concepcion,
JJ., concur.

137
Imbong v. Ochoa
GR 204819, April 8, 2014

DECISION
MENDOZA, J.:
Freedom of religion was accorded preferred status by the framers of our
fundamental law. And this Court has consistently affirmed this preferred
status, well aware that it is "designed to protect the broadest possible liberty
of conscience, to allow each man to believe as his conscience directs, to
profess his beliefs , and to live as he believes he ought to live, consistent
with the liberty of others and with the common good."1
To this day, poverty is still a major stumbling block to the nation's emergence
as a developed country, leaving our people beleaguered in a state of hunger,
illiteracy and unemployment. While governmental policies have been geared
towards the revitalization of the economy, the bludgeoning dearth in social
services remains to be a problem that concerns not only the poor, but every
member of society. The government continues to tread on a trying path to
the realization of its very purpose, that is, the general welfare of the Filipino
people and the development of the country as a whole. The legislative
branch, as the main facet of a representative government, endeavors to
enact laws and policies that aim to remedy looming societal woes, while the
executive is closed set to fully implement these measures and bring concrete
and substantial solutions within the reach of Juan dela Cruz. Seemingly
distant is the judicial branch, oftentimes regarded as an inert governmental
body that merely casts its watchful eyes on clashing stakeholders until it is
called upon to adjudicate. Passive, yet reflexive when called into action, the
Judiciary then willingly embarks on its solemn duty to interpret legislation visa-vis the most vital and enduring principle that holds Philippine society
together - the supremacy of the Philippine Constitution.

Nothing has polarized the nation more in recent years than the issues of
population growth control, abortion and contraception. As in every
democratic society, diametrically opposed views on the subjects and their
perceived consequences freely circulate in various media. From television
debates2 to sticker campaigns,3 from rallies by socio-political activists to
mass gatherings organized by members of the clergy4 - the clash between
the seemingly antithetical ideologies of the religious conservatives and
progressive liberals has caused a deep division in every level of the society.
Despite calls to withhold support thereto, however, Republic Act (R.A.) No.
10354, otherwise known as the Responsible Parenthood and Reproductive
Health Act of 2012 (RH Law), was enacted by Congress on December 21,
2012.
Shortly after the President placed his imprimatur on the said law, challengers
from various sectors of society came knocking on the doors of the Court,
beckoning it to wield the sword that strikes down constitutional disobedience.
Aware of the profound and lasting impact that its decision may produce, the
Court now faces the iuris controversy, as presented in fourteen (14) petitions
and two (2) petitions- in-intervention, to wit:
(1) Petition for Certiorari and Prohibition,5 filed by spouses Attys. James M.
Imbong and Lovely Ann C. Imbong, in their personal capacities as citizens,
lawyers and taxpayers and on behalf of their minor children; and the
Magnificat Child Leaming Center, Inc., a domestic, privately-owned
educational institution (Jmbong);
(2) Petition for Prohibition,6 filed by the Alliance for the Family Foundation
Philippines, Inc., through its president, Atty. Maria Concepcion S. Noche7
and several others8 in their personal capacities as citizens and on behalf of
the generations unborn (ALFI);
(3) Petition for Certiorari,9 filed by the Task Force for Family and Life
Visayas, Inc., and Valeriano S. Avila, in their capacities as citizens and
taxpayers (Task Force Family);

138
(4) Petition for Certiorari and Prohibition,10 filed by Serve Life Cagayan De
Oro City, Inc.,11 Rosevale Foundation, Inc.,12 a domestic, privately-owned
educational institution, and several others,13 in their capacities as citizens
(Serve Life);
(5) Petition,14 filed by Expedito A. Bugarin, Jr. in his capacity as a citizen
(Bugarin);
(6) Petition for Certiorari and Prohibition,15 filed by Eduardo Olaguer and the
Catholic Xybrspace Apostolate of the Philippines,16 in their capacities as a
citizens and taxpayers (Olaguer);
(7) Petition for Certiorari and Prohibition,17 filed by the Philippine Alliance of
Xseminarians Inc.,18 and several others19 in their capacities as citizens and
taxpayers (PAX);
(8) Petition,20 filed by Reynaldo J. Echavez, M.D. and several others,21 in
their capacities as citizens and taxpayers (Echavez);
(9) Petition for Certiorari and Prohibition,22 filed by spouses Francisco and
Maria Fenny C. Tatad and Atty. Alan F. Paguia, in their capacities as citizens,
taxpayers and on behalf of those yet unborn. Atty. Alan F. Paguia is also
proceeding in his capacity as a member of the Bar (Tatad);
(10) Petition for Certiorari and Prohibition,23 filed by Pro-Life Philippines
Foundation Inc.24 and several others,25 in their capacities as citizens and
taxpayers and on behalf of its associates who are members of the Bar (ProLife);
(11) Petition for Prohibition,26 filed by Millennium Saint Foundation, Inc.,27
Attys. Ramon Pedrosa, Cita Borromeo-Garcia, Stella Acedera, and Berteni
Catalufia Causing, in their capacities as citizens, taxpayers and members of
the Bar (MSF);

(12) Petition for Certiorari and Prohibition,28 filed by John Walter B. Juat and
several others,29 in their capacities as citizens (Juat) ;
(13) Petition for Certiorari and Prohibition,30 filed by Couples for Christ
Foundation, Inc. and several others,31 in their capacities as citizens (CFC);
(14) Petition for Prohibition32 filed by Almarim Centi Tillah and Abdulhussein
M. Kashim in their capacities as citizens and taxpayers (Tillah); and
(15) Petition-In-Intervention,33 filed by Atty. Samson S. Alcantara in his
capacity as a citizen and a taxpayer (Alcantara); and
(16) Petition-In-Intervention,34 filed by Buhay Hayaang Yumabong (B UHAY)
, an accredited political party.
A perusal of the foregoing petitions shows that the petitioners are assailing
the constitutionality of RH Law on the following GROUNDS:
The RH Law violates the right to life of the unborn. According to the
petitioners, notwithstanding its declared policy against abortion, the
implementation of the RH Law would authorize the purchase of hormonal
contraceptives, intra-uterine devices and injectables which are abortives, in
violation of Section 12, Article II of the Constitution which guarantees
protection of both the life of the mother and the life of the unborn from
conception.35
The RH Law violates the right to health and the right to protection against
hazardous products. The petitioners posit that the RH Law provides
universal access to contraceptives which are hazardous to one's health, as it
causes cancer and other health problems.36
The RH Law violates the right to religious freedom. The petitioners contend
that the RH Law violates the constitutional guarantee respecting religion as it
authorizes the use of public funds for the procurement of contraceptives. For
the petitioners, the use of public funds for purposes that are believed to be
contrary to their beliefs is included in the constitutional mandate ensuring
religious freedom.37

139
It is also contended that the RH Law threatens conscientious objectors of
criminal prosecution, imprisonment and other forms of punishment, as it
compels medical practitioners 1] to refer patients who seek advice on
reproductive health programs to other doctors; and 2] to provide full and
correct information on reproductive health programs and service, although it
is against their religious beliefs and convictions.38
In this connection, Section 5 .23 of the Implementing Rules and Regulations
of the RH Law (RH-IRR),39 provides that skilled health professionals who
are public officers such as, but not limited to, Provincial, City, or Municipal
Health Officers, medical officers, medical specialists, rural health physicians,
hospital staff nurses, public health nurses, or rural health midwives, who are
specifically charged with the duty to implement these Rules, cannot be
considered as conscientious objectors.40
It is also argued that the RH Law providing for the formulation of mandatory
sex education in schools should not be allowed as it is an affront to their
religious beliefs.41
While the petit10ners recognize that the guarantee of religious freedom is
not absolute, they argue that the RH Law fails to satisfy the "clear and
present danger test" and the "compelling state interest test" to justify the
regulation of the right to free exercise of religion and the right to free
speech.42
The RH Law violates the constitutional provision on involuntary servitude.
According to the petitioners, the RH Law subjects medical practitioners to
involuntary servitude because, to be accredited under the PhilHealth
program, they are compelled to provide forty-eight (48) hours of pro bona
services for indigent women, under threat of criminal prosecution,
imprisonment and other forms of punishment.43
The petitioners explain that since a majority of patients are covered by
PhilHealth, a medical practitioner would effectively be forced to render
reproductive health services since the lack of PhilHealth accreditation would

mean that the majority of the public would no longer be able to avail of the
practitioners services.44
The RH Law violates the right to equal protection of the law. It is claimed
that the RH Law discriminates against the poor as it makes them the primary
target of the government program that promotes contraceptive use. The
petitioners argue that, rather than promoting reproductive health among the
poor, the RH Law seeks to introduce contraceptives that would effectively
reduce the number of the poor.45
The RH Law is "void-for-vagueness" in violation of the due process clause
of the Constitution. In imposing the penalty of imprisonment and/or fine for
"any violation," it is vague because it does not define the type of conduct to
be treated as "violation" of the RH Law.46
In this connection, it is claimed that "Section 7 of the RH Law violates the
right to due process by removing from them (the people) the right to manage
their own affairs and to decide what kind of health facility they shall be and
what kind of services they shall offer."47 It ignores the management
prerogative inherent in corporations for employers to conduct their affairs in
accordance with their own discretion and judgment.
The RH Law violates the right to free speech. To compel a person to
explain a full range of family planning methods is plainly to curtail his right to
expound only his own preferred way of family planning. The petitioners note
that although exemption is granted to institutions owned and operated by
religious groups, they are still forced to refer their patients to another
healthcare facility willing to perform the service or procedure.48
The RH Law intrudes into the zone of privacy of one's family protected by
the Constitution. It is contended that the RH Law providing for mandatory
reproductive health education intrudes upon their constitutional right to raise
their children in accordance with their beliefs.49

140
It is claimed that, by giving absolute authority to the person who will undergo
reproductive health procedure, the RH Law forsakes any real dialogue
between the spouses and impedes the right of spouses to mutually decide
on matters pertaining to the overall well-being of their family. In the same
breath, it is also claimed that the parents of a child who has suffered a
miscarriage are deprived of parental authority to determine whether their
child should use contraceptives.50
The RH Law violates the constitutional principle of non-delegation of
legislative authority. The petitioners question the delegation by Congress to
the FDA of the power to determine whether a product is non-abortifacient
and to be included in the Emergency Drugs List (EDL).51
The RH Law violates the one subject/one bill rule provision under Section
26( 1 ), Article VI of the Constitution.52
The RH Law violates Natural Law.53
The RH Law violates the principle of Autonomy of Local Government Units
(LGUs) and the Autonomous Region of Muslim Mindanao {ARMM). It is
contended that the RH Law, providing for reproductive health measures at
the local government level and the ARMM, infringes upon the powers
devolved to LGUs and the ARMM under the Local Government Code and
R.A . No. 9054.54
Various parties also sought and were granted leave to file their respective
comments-in-intervention in defense of the constitutionality of the RH Law.
Aside from the Office of the Solicitor General (OSG) which commented on
the petitions in behalf of the respondents,55 Congressman Edcel C.
Lagman,56 former officials of the Department of Health Dr. Esperanza I.
Cabral, Jamie Galvez-Tan, and Dr. Alberto G. Romualdez,57 the Filipino
Catholic Voices for Reproductive Health (C4RH),58 Ana Theresa "Risa"
Hontiveros,59 and Atty. Joan De Venecia60 also filed their respective
Comments-in-Intervention in conjunction with several others. On June 4,
2013, Senator Pia Juliana S. Cayetano was also granted leave to
intervene.61

The respondents, aside from traversing the substantive arguments of the

petitioners, pray for the dismissal of the petitions for the principal reasons
that 1] there is no actual case or controversy and, therefore, the issues are
not yet ripe for judicial determination.; 2] some petitioners lack standing to
question the RH Law; and 3] the petitions are essentially petitions for
declaratory relief over which the Court has no original jurisdiction.
Meanwhile, on March 15, 2013, the RH-IRR for the enforcement of the
assailed legislation took effect.
On March 19, 2013, after considering the issues and arguments raised, the
Court issued the Status Quo Ante Order (SQAO), enjoining the effects and
implementation of the assailed legislation for a period of one hundred and
twenty (120) days, or until July 17, 2013.62
On May 30, 2013, the Court held a preliminary conference with the counsels
of the parties to determine and/or identify the pertinent issues raised by the
parties and the sequence by which these issues were to be discussed in the
oral arguments. On July 9 and 23, 2013, and on August 6, 13, and 27, 2013,
the cases were heard on oral argument. On July 16, 2013, the SQAO was
ordered extended until further orders of the Court.63
Thereafter, the Court directed the parties to submit their respective
memoranda within sixty (60) days and, at the same time posed several
questions for their clarification on some contentions of the parties.64
The Status Quo Ante
(Population, Contraceptive and Reproductive Health Laws
Prior to the RH Law
Long before the incipience of the RH Law, the country has allowed the sale,
dispensation and distribution of contraceptive drugs and devices. As far back
as June 18, 1966, the country enacted R.A. No. 4729 entitled "An Act to
Regu,late the Sale, Dispensation, and/or Distribution of Contraceptive Drugs
and Devices." Although contraceptive drugs and devices were allowed, they

141
could not be sold, dispensed or distributed "unless such sale, dispensation
and distribution is by a duly licensed drug store or pharmaceutical company
and with the prescription of a qualified medical practitioner."65
In addition, R.A. No. 5921,66 approved on June 21, 1969, contained
provisions relative to "dispensing of abortifacients or anti-conceptional
substances and devices." Under Section 37 thereof, it was provided that "no
drug or chemical product or device capable of provoking abortion or
preventing conception as classified by the Food and Drug Administration
shall be delivered or sold to any person without a proper prescription by a
duly licensed physician."
On December 11, 1967, the Philippines, adhering to the UN Declaration on
Population, which recognized that the population problem should be
considered as the principal element for long-term economic development,
enacted measures that promoted male vasectomy and tubal ligation to
mitigate population growth.67 Among these measures included R.A. No.
6365, approved on August 16, 1971, entitled "An Act Establishing a National
Policy on Population, Creating the Commission on Population and for Other
Purposes. " The law envisioned that "family planning will be made part of a
broad educational program; safe and effective means will be provided to
couples desiring to space or limit family size; mortality and morbidity rates
will be further reduced."
To further strengthen R.A. No. 6365, then President Ferdinand E . Marcos
issued Presidential Decree. (P.D.) No. 79,68 dated December 8, 1972,
which, among others, made "family planning a part of a broad educational
program," provided "family planning services as a part of over-all health
care," and made "available all acceptable methods of contraception, except
abortion, to all Filipino citizens desirous of spacing, limiting or preventing
pregnancies."
Through the years, however, the use of contraceptives and family planning
methods evolved from being a component of demographic management, to
one centered on the promotion of public health, particularly, reproductive
health.69 Under that policy, the country gave priority to one's right to freely

choose the method of family planning to be adopted, in conformity with its

adherence to the commitments made in the International Conference on
Population and Development.70 Thus, on August 14, 2009, the country
enacted R.A. No. 9710 or "The Magna Carta for Women, " which, among
others, mandated the State to provide for comprehensive health services
and programs for women, including family planning and sex education.71
The RH Law
Despite the foregoing legislative measures, the population of the country
kept on galloping at an uncontrollable pace. From a paltry number of just
over 27 million Filipinos in 1960, the population of the country reached over
76 million in the year 2000 and over 92 million in 2010.72 The executive and
the legislative, thus, felt that the measures were still not adequate. To rein in
the problem, the RH Law was enacted to provide Filipinos, especially the
poor and the marginalized, access and information to the full range of
modem family planning methods, and to ensure that its objective to provide
for the peoples' right to reproductive health be achieved. To make it more
effective, the RH Law made it mandatory for health providers to provide
information on the full range of modem family planning methods, supplies
and services, and for schools to provide reproductive health education. To
put teeth to it, the RH Law criminalizes certain acts of refusals to carry out its
mandates.
Stated differently, the RH Law is an enhancement measure to fortify and
make effective the current laws on contraception, women's health and
population control.
Prayer of the Petitioners - Maintain the Status Quo
The petitioners are one in praying that the entire RH Law be declared
unconstitutional. Petitioner ALFI, in particular, argues that the government
sponsored contraception program, the very essence of the RH Law, violates
the right to health of women and the sanctity of life, which the State is
mandated to protect and promote. Thus, ALFI prays that "the status quo ante

142
- the situation prior to the passage of the RH Law - must be maintained."73 It
explains:
x x x. The instant Petition does not question contraception and
contraceptives per se. As provided under Republic Act No. 5921 and
Republic Act No. 4729, the sale and distribution of contraceptives are
prohibited unless dispensed by a prescription duly licensed by a physician.
What the Petitioners find deplorable and repugnant under the RH Law is the
role that the State and its agencies - the entire bureaucracy, from the cabinet
secretaries down to the barangay officials in the remotest areas of the
country - is made to play in the implementation of the contraception program
to the fullest extent possible using taxpayers' money. The State then will be
the funder and provider of all forms of family planning methods and the
implementer of the program by ensuring the widespread dissemination of,
and universal access to, a full range of family planning methods, devices and
supplies.74
ISSUES
After a scrutiny of the various arguments and contentions of the parties, the
Court has synthesized and refined them to the following principal issues:
I. PROCEDURAL: Whether the Court may exercise its power of judicial
review over the controversy.
1] Power of Judicial Review
2] Actual Case or Controversy
3] Facial Challenge
4] Locus Standi
5] Declaratory Relief
6] One Subject/One Title Rule

II. SUBSTANTIVE: Whether the RH law is unconstitutional:

1] Right to Life
2] Right to Health
3] Freedom of Religion and the Right to Free Speech
4] The Family
5] Freedom of Expression and Academic Freedom
6] Due Process
7] Equal Protection
8] Involuntary Servitude
9] Delegation of Authority to the FDA
10] Autonomy of Local Govemments/ARMM
DISCUSSION
Before delving into the constitutionality of the RH Law and its implementing
rules, it behooves the Court to resolve some procedural impediments.
I. PROCEDURAL ISSUE: Whether the Court can exercise its power of
judicial review over the controversy.
The Power of Judicial Review
In its attempt to persuade the Court to stay its judicial hand, the OSG asserts
that it should submit to the legislative and political wisdom of Congress and
respect the compromises made in the crafting of the RH Law, it being "a
product of a majoritarian democratic process"75 and "characterized by an
inordinate amount of transparency."76 The OSG posits that the authority of
the Court to review social legislation like the RH Law by certiorari is "weak,"
since the Constitution vests the discretion to implement the constitutional

143
policies and positive norms with the political departments, in particular, with
Congress.77 It further asserts that in view of the Court's ruling in Southern
Hemisphere v. Anti-Terrorism Council,78 the remedies of certiorari and
prohibition utilized by the petitioners are improper to assail the validity of the
acts of the legislature.79
Moreover, the OSG submits that as an "as applied challenge," it cannot
prosper considering that the assailed law has yet to be enforced and applied
to the petitioners, and that the government has yet to distribute reproductive
health devices that are abortive. It claims that the RH Law cannot be
challenged "on its face" as it is not a speech-regulating measure.80
In many cases involving the determination of the constitutionality of the
actions of the Executive and the Legislature, it is often sought that the Court
temper its exercise of judicial power and accord due respect to the wisdom
of its co-equal branch on the basis of the principle of separation of powers.
To be clear, the separation of powers is a fundamental principle in our
system of government, which obtains not through express provision but by
actual division in our Constitution. Each department of the government has
exclusive cognizance of matters within its jurisdiction and is supreme within
its own sphere.81
Thus, the 1987 Constitution provides that: (a) the legislative power shall be
vested in the Congress of the Philippines;82 (b) the executive power shall be
vested in the President of the Philippines;83 and (c) the judicial power shall
be vested in one Supreme Court and in such lower courts as may be
established by law.84 The Constitution has truly blocked out with deft strokes
and in bold lines, the allotment of powers among the three branches of
government.85
In its relationship with its co-equals, the Judiciary recognizes the doctrine of
separation of powers which imposes upon the courts proper restraint, born of
the nature of their functions and of their respect for the other branches of
government, in striking down the acts of the Executive or the Legislature as
unconstitutional. Verily, the policy is a harmonious blend of courtesy and
caution.86

It has also long been observed, however, that in times of social disquietude
or political instability, the great landmarks of the Constitution are apt to be
forgotten or marred, if not entirely obliterated.87 In order to address this, the
Constitution impresses upon the Court to respect the acts performed by a
co-equal branch done within its sphere of competence and authority, but at
the same time, allows it to cross the line of separation - but only at a very
limited and specific point - to determine whether the acts of the executive
and the legislative branches are null because they were undertaken with
grave abuse of discretion.88 Thus, while the Court may not pass upon
questions of wisdom, justice or expediency of the RH Law, it may do so
where an attendant unconstitutionality or grave abuse of discretion results.89
The Court must demonstrate its unflinching commitment to protect those
cherished rights and principles embodied in the Constitution.
In this connection, it bears adding that while the scope of judicial power of
review may be limited, the Constitution makes no distinction as to the kind of
legislation that may be subject to judicial scrutiny, be it in the form of social
legislation or otherwise. The reason is simple and goes back to the earlier
point. The Court may pass upon the constitutionality of acts of the legislative
and the executive branches, since its duty is not to review their collective
wisdom but, rather, to make sure that they have acted in consonance with
their respective authorities and rights as mandated of them by the
Constitution. If after said review, the Court finds no constitutional violations of
any sort, then, it has no more authority of proscribing the actions under
review.90 This is in line with Article VIII, Section 1 of the Constitution which
expressly provides:
Section 1. The judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government. [Emphases supplied]

144
As far back as Tanada v. Angara,91 the Court has unequivocally declared
that certiorari, prohibition and mandamus are appropriate remedies to raise
constitutional issues and to review and/or prohibit/nullify, when proper, acts
of legislative and executive officials, as there is no other plain, speedy or
adequate remedy in the ordinary course of law. This ruling was later on
applied in Macalintal v. COMELEC,92 Aldaba v. COMELEC,93 Magallona v.
Ermita,94 and countless others. In Tanada, the Court wrote:
In seeking to nullify an act of the Philippine Senate on the ground that it
contravenes the Constitution, the petition no doubt raises a justiciable
controversy. Where an action of the legislative branch is seriously alleged to
have infringed the Constitution, it becomes not only the right but in fact the
duty of the judiciary to settle the dispute. "The question thus posed is judicial
rather than political. The duty (to adjudicate) remains to assure that the
supremacy of the Constitution is upheld. " Once a "controversy as to the
application or interpretation of constitutional provision is raised before this
Court (as in the instant case), it becomes a legal issue which the Court is
bound by constitutional mandate to decide. [Emphasis supplied]
In the scholarly estimation of former Supreme Court Justice Florentino
Feliciano, "judicial review is essential for the maintenance and enforcement
of the separation of powers and the balancing of powers among the three
great departments of government through the definition and maintenance of
the boundaries of authority and control between them. To him, judicial review
is the chief, indeed the only, medium of participation - or instrument of
intervention - of the judiciary in that balancing operation.95
Lest it be misunderstood, it bears emphasizing that the Court does not have
the unbridled authority to rule on just any and every claim of constitutional
violation. Jurisprudence is replete with the rule that the power of judicial
review is limited by four exacting requisites, viz : (a) there must be an actual
case or controversy; (b) the petitioners must possess locus standi; (c) the
question of constitutionality must be raised at the earliest opportunity; and (d)
the issue of constitutionality must be the lis mota of the case.96

Actual Case or Controversy

Proponents of the RH Law submit that the subj ect petitions do not present
any actual case or controversy because the RH Law has yet to be
implemented.97 They claim that the questions raised by the petitions are not
yet concrete and ripe for adjudication since no one has been charged with
violating any of its provisions and that there is no showing that any of the
petitioners' rights has been adversely affected by its operation.98 In short, it
is contended that judicial review of the RH Law is premature.
An actual case or controversy means an existing case or controversy that is
appropriate or ripe for determination, not conjectural or anticipatory, lest the
decision of the court would amount to an advisory opinion.99 The rule is that
courts do not sit to adjudicate mere academic questions to satisfy scholarly
interest, however intellectually challenging. The controversy must be
justiciable-definite and concrete, touching on the legal relations of parties
having adverse legal interests. In other words, the pleadings must show an
active antagonistic assertion of a legal right, on the one hand, and a denial
thereof, on the other; that is, it must concern a real, tangible and not merely
a theoretical question or issue. There ought to be an actual and substantial
controversy admitting of specific relief through a decree conclusive in nature,
as distinguished from an opinion advising what the law would be upon a
hypothetical state of facts.100
Corollary to the requirement of an actual case or controversy is the
requirement of ripeness.101 A question is ripe for adjudication when the act
being challenged has had a direct adverse effect on the individual
challenging it. For a case to be considered ripe for adjudication, it is a
prerequisite that something has then been accomplished or performed by
either branch before a court may come into the picture, and the petitioner
must allege the existence of an immediate or threatened injury to himself as
a result of the challenged action. He must show that he has sustained or is
immediately in danger of sustaining some direct injury as a result of the act
complained of102

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In The Province of North Cotabato v. The Government of the Republic of the
Philippines,103 where the constitutionality of an unimplemented
Memorandum of Agreement on the Ancestral Domain (MOA-AD) was put in
question, it was argued that the Court has no authority to pass upon the
issues raised as there was yet no concrete act performed that could possibly
violate the petitioners' and the intervenors' rights. Citing precedents, the
Court ruled that the fact of the law or act in question being not yet effective
does not negate ripeness. Concrete acts under a law are not necessary to
render the controversy ripe. Even a singular violation of the Constitution
and/or the law is enough to awaken judicial duty.
In this case, the Court is of the view that an actual case or controversy exists
and that the same is ripe for judicial determination. Considering that the RH
Law and its implementing rules have already taken effect and that budgetary
measures to carry out the law have already been passed, it is evident that
the subject petitions present a justiciable controversy. As stated earlier, when
an action of the legislative branch is seriously alleged to have infringed the
Constitution, it not only becomes a right, but also a duty of the Judiciary to
settle the dispute.104
Moreover, the petitioners have shown that the case is so because medical
practitioners or medical providers are in danger of being criminally
prosecuted under the RH Law for vague violations thereof, particularly public
health officers who are threatened to be dismissed from the service with
forfeiture of retirement and other benefits. They must, at least, be heard on
the matter NOW.
Facial Challenge
The OSG also assails the propriety of the facial challenge lodged by the
subject petitions, contending that the RH Law cannot be challenged "on its
face" as it is not a speech regulating measure.105
The Court is not persuaded.

In United States (US) constitutional law, a facial challenge, also known as a

First Amendment Challenge, is one that is launched to assail the validity of
statutes concerning not only protected speech, but also all other rights in the
First Amendment.106 These include religious freedom, freedom of the press,
and the right of the people to peaceably assemble, and to petition the
Government for a redress of grievances.107 After all, the fundamental right
to religious freedom, freedom of the press and peaceful assembly are but
component rights of the right to one's freedom of expression, as they are
modes which one's thoughts are externalized.
In this jurisdiction, the application of doctrines originating from the U.S. has
been generally maintained, albeit with some modifications. While this Court
has withheld the application of facial challenges to strictly penal statues,108
it has expanded its scope to cover statutes not only regulating free speech,
but also those involving religious freedom, and other fundamental rights.109
The underlying reason for this modification is simple. For unlike its
counterpart in the U.S., this Court, under its expanded jurisdiction, is
mandated by the Fundamental Law not only to settle actual controversies
involving rights which are legally demandable and enforceable, but also to
determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.110 Verily, the framers of Our Constitution
envisioned a proactive Judiciary, ever vigilant with its duty to maintain the
supremacy of the Constitution.
Consequently, considering that the foregoing petitions have seriously alleged
that the constitutional human rights to life, speech and religion and other
fundamental rights mentioned above have been violated by the assailed
legislation, the Court has authority to take cognizance of these kindred
petitions and to determine if the RH Law can indeed pass constitutional
scrutiny. To dismiss these petitions on the simple expedient that there exist
no actual case or controversy, would diminish this Court as a reactive branch
of government, acting only when the Fundamental Law has been
transgressed, to the detriment of the Filipino people.

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Locus Standi
The OSG also attacks the legal personality of the petitioners to file their
respective petitions. It contends that the "as applied challenge" lodged by the
petitioners cannot prosper as the assailed law has yet to be enforced and
applied against them,111 and the government has yet to distribute
reproductive health devices that are abortive.112
The petitioners, for their part, invariably invoke the "transcendental
importance" doctrine and their status as citizens and taxpayers in
establishing the requisite locus standi.
Locus standi or legal standing is defined as a personal and substantial
interest in a case such that the party has sustained or will sustain direct
injury as a result of the challenged governmental act.113 It requires a
personal stake in the outcome of the controversy as to assure the concrete
adverseness which sharpens the presentation of issues upon which the court
so largely depends for illumination of difficult constitutional questions.114
In relation to locus standi, the "as applied challenge" embodies the rule that
one can challenge the constitutionality of a statute only if he asserts a
violation of his own rights. The rule prohibits one from challenging the
constitutionality of the statute grounded on a violation of the rights of third
persons not before the court. This rule is also known as the prohibition
against third-party standing.115
Transcendental Importance
Notwithstanding, the Court leans on the doctrine that "the rule on standing is
a matter of procedure, hence, can be relaxed for non-traditional plaintiffs like
ordinary citizens, taxpayers, and legislators when the public interest so
requires, such as when the matter is of transcendental importance, of
overreaching significance to society, or of paramount public interest."116

In Coconut Oil Refiners Association, Inc. v. Torres,117 the Court held that in
cases of paramount importance where serious constitutional questions are
involved, the standing requirement may be relaxed and a suit may be
allowed to prosper even where there is no direct injury to the party claiming
the right of judicial review. In the first Emergency Powers Cases,118 ordinary
citizens and taxpayers were allowed to question the constitutionality of
several executive orders although they had only an indirect and general
interest shared in common with the public.
With these said, even if the constitutionality of the RH Law may not be
assailed through an "as-applied challenge, still, the Court has time and again
acted liberally on the locus s tandi requirement. It has accorded certain
individuals standing to sue, not otherwise directly injured or with material
interest affected by a Government act, provided a constitutional issue of
transcendental importance is invoked. The rule on locus standi is, after all, a
procedural technicality which the Court has, on more than one occasion,
waived or relaxed, thus allowing non-traditional plaintiffs, such as concerned
citizens, taxpayers, voters or legislators, to sue in the public interest, albeit
they may not have been directly injured by the operation of a law or any
other government act. As held in Jaworski v. PAGCOR:119
Granting arguendo that the present action cannot be properly treated as a
petition for prohibition, the transcendental importance of the issues involved
in this case warrants that we set aside the technical defects and take primary
jurisdiction over the petition at bar. One cannot deny that the issues raised
herein have potentially pervasive influence on the social and moral well
being of this nation, specially the youth; hence, their proper and just
determination is an imperative need. This is in accordance with the wellentrenched principle that rules of procedure are not inflexible tools designed
to hinder or delay, but to facilitate and promote the administration of justice.
Their strict and rigid application, which would result in technicalities that tend
to frustrate, rather than promote substantial justice, must always be
eschewed. (Emphasis supplied)

147
In view of the seriousness, novelty and weight as precedents, not only to the
public, but also to the bench and bar, the issues raised must be resolved for
the guidance of all. After all, the RH Law drastically affects the constitutional
provisions on the right to life and health, the freedom of religion and
expression and other constitutional rights. Mindful of all these and the fact
that the issues of contraception and reproductive health have already caused
deep division among a broad spectrum of society, the Court entertains no
doubt that the petitions raise issues of transcendental importance warranting
immediate court adjudication. More importantly, considering that it is the right
to life of the mother and the unborn which is primarily at issue, the Court
need not wait for a life to be taken away before taking action.
The Court cannot, and should not, exercise judicial restraint at this time
when rights enshrined in the Constitution are being imperilled to be violated.
To do so, when the life of either the mother or her child is at stake, would
lead to irreparable consequences.

To belittle the challenge, the respondents insist that the RH Law is not a birth
or population control measure,124 and that the concepts of "responsible
parenthood" and "reproductive health" are both interrelated as they are
inseparable.125
Despite efforts to push the RH Law as a reproductive health law, the Court
sees it as principally a population control measure. The corpus of the RH
Law is geared towards the reduction of the country's population. While it
claims to save lives and keep our women and children healthy, it also
promotes pregnancy-preventing products. As stated earlier, the RH Law
emphasizes the need to provide Filipinos, especially the poor and the
marginalized, with access to information on the full range of modem family
planning products and methods. These family planning methods, natural or
modem, however, are clearly geared towards the prevention of pregnancy.

Declaratory Relief

For said reason, the manifest underlying objective of the RH Law is to

reduce the number of births in the country.

The respondents also assail the petitions because they are essentially
petitions for declaratory relief over which the Court has no original
jurisdiction.120 Suffice it to state that most of the petitions are praying for
injunctive reliefs and so the Court would just consider them as petitions for
prohibition under Rule 65, over which it has original jurisdiction. Where the
case has far-reaching implications and prays for injunctive reliefs, the Court
may consider them as petitions for prohibition under Rule 65.121

It cannot be denied that the measure also seeks to provide pre-natal and
post-natal care as well. A large portion of the law, however, covers the
dissemination of information and provisions on access to medically-safe,
non-abortifacient, effective, legal, affordable, and quality reproductive health
care services, methods, devices, and supplies, which are all intended to
prevent pregnancy.

One Subject-One Title

The petitioners also question the constitutionality of the RH Law, claiming
that it violates Section 26(1 ), Article VI of the Constitution,122 prescribing
the one subject-one title rule. According to them, being one for reproductive
health with responsible parenthood, the assailed legislation violates the
constitutional standards of due process by concealing its true intent - to act
as a population control measure.123

The Court, thus, agrees with the petitioners' contention that the whole idea of
contraception pervades the entire RH Law. It is, in fact, the central idea of
the RH Law.126 Indeed, remove the provisions that refer to contraception or
are related to it and the RH Law loses its very foundation.127 As earlier
explained, "the other positive provisions such as skilled birth attendance,
maternal care including pre-and post-natal services, prevention and
management of reproductive tract infections including HIV/AIDS are already
provided for in the Magna Carta for Women."128

148
Be that as it may, the RH Law does not violate the one subject/one bill rule.
In Benjamin E. Cawaling, Jr. v. The Commission on Elections and Rep.
Francis Joseph G Escudero, it was written:
It is well-settled that the "one title-one subject" rule does not require the
Congress to employ in the title of the enactment language of such precision
as to mirror, fully index or catalogue all the contents and the minute details
therein. The rule is sufficiently complied with if the title is comprehensive
enough as to include the general object which the statute seeks to effect,
and where, as here, the persons interested are informed of the nature, scope
and consequences of the proposed law and its operation. Moreover, this
Court has invariably adopted a liberal rather than technical construction of
the rule "so as not to cripple or impede legislation." [Emphases supplied]
In this case, a textual analysis of the various provisions of the law shows that
both "reproductive health" and "responsible parenthood" are interrelated and
germane to the overriding objective to control the population growth. As
expressed in the first paragraph of Section 2 of the RH Law:
SEC. 2. Declaration of Policy. - The State recognizes and guarantees the
human rights of all persons including their right to equality and
nondiscrimination of these rights, the right to sustainable human
development, the right to health which includes reproductive health, the right
to education and information, and the right to choose and make decisions for
themselves in accordance with their religious convictions, ethics, cultural
beliefs, and the demands of responsible parenthood.
The one subject/one title rule expresses the principle that the title of a law
must not be "so uncertain that the average person reading it would not be
informed of the purpose of the enactment or put on inquiry as to its contents,
or which is misleading, either in referring to or indicating one subject where
another or different one is really embraced in the act, or in omitting any
expression or indication of the real subject or scope of the act."129

Considering the close intimacy between "reproductive health" and

"responsible parenthood" which bears to the attainment of the goal of
achieving "sustainable human development" as stated under its terms, the
Court finds no reason to believe that Congress intentionally sought to
deceive the public as to the contents of the assailed legislation.
II - SUBSTANTIVE ISSUES:
1-The Right to Life
Position of the Petitioners
The petitioners assail the RH Law because it violates the right to life and
health of the unborn child under Section 12, Article II of the Constitution. The
assailed legislation allowing access to abortifacients/abortives effectively
sanctions abortion.130
According to the petitioners, despite its express terms prohibiting abortion,
Section 4(a) of the RH Law considers contraceptives that prevent the
fertilized ovum to reach and be implanted in the mother's womb as an
abortifacient; thus, sanctioning contraceptives that take effect after
fertilization and prior to implantation, contrary to the intent of the Framers of
the Constitution to afford protection to the fertilized ovum which already has
life.
They argue that even if Section 9 of the RH Law allows only "nonabortifacient" hormonal contraceptives, intrauterine devices, injectables and
other safe, legal, non-abortifacient and effective family planning products and
supplies, medical research shows that contraceptives use results in abortion
as they operate to kill the fertilized ovum which already has life.131
As it opposes the initiation of life, which is a fundamental human good, the
petitioners assert that the State sanction of contraceptive use contravenes
natural law and is an affront to the dignity of man.132

149
Finally, it is contended that since Section 9 of the RH Law requires the Food
and Drug Administration (FDA) to certify that the product or supply is not to
be used as an abortifacient, the assailed legislation effectively confirms that
abortifacients are not prohibited. Also considering that the FDA is not the
agency that will actually supervise or administer the use of these products
and supplies to prospective patients, there is no way it can truthfully make a
certification that it shall not be used for abortifacient purposes.133

It is a universally accepted principle that every human being enjoys the right
to life.137

Position of the Respondents

In this jurisdiction, the right to life is given more than ample protection.
Section 1, Article III of the Constitution provides:

For their part, the defenders of the RH Law point out that the intent of the
Framers of the Constitution was simply the prohibition of abortion. They
contend that the RH Law does not violate the Constitution since the said law
emphasizes that only "non-abortifacient" reproductive health care services,
methods, devices products and supplies shall be made accessible to the
public.134
According to the OSG, Congress has made a legislative determination that
contraceptives are not abortifacients by enacting the RH Law. As the RH Law
was enacted with due consideration to various studies and consultations with
the World Health Organization (WHO) and other experts in the medical field,
it is asserted that the Court afford deference and respect to such a
determination and pass judgment only when a particular drug or device is
later on determined as an abortive.135
For his part, respondent Lagman argues that the constitutional protection of
one's right to life is not violated considering that various studies of the WHO
show that life begins from the implantation of the fertilized ovum.
Consequently, he argues that the RH Law is constitutional since the law
specifically provides that only contraceptives that do not prevent the
implantation of the fertilized ovum are allowed.136
The Court's Position

Even if not formally established, the right to life, being grounded on natural
law, is inherent and, therefore, not a creation of, or dependent upon a
particular law, custom, or belief. It precedes and transcends any authority or
the laws of men.

Section 1. No person shall be deprived of life, liberty, or property without due

process of law, nor shall any person be denied the equal protection of the
laws.
As expounded earlier, the use of contraceptives and family planning methods
in the Philippines is not of recent vintage. From the enactment of R.A. No.
4729, entitled "An Act To Regulate The Sale, Dispensation, and/or
Distribution of Contraceptive Drugs and Devices "on June 18, 1966,
prescribing rules on contraceptive drugs and devices which prevent
fertilization,138 to the promotion of male vasectomy and tubal ligation,139
and the ratification of numerous international agreements, the country has
long recognized the need to promote population control through the use of
contraceptives in order to achieve long-term economic development.
Through the years, however, the use of contraceptives and other family
planning methods evolved from being a component of demographic
management, to one centered on the promotion of public health, particularly,
reproductive health.140
This has resulted in the enactment of various measures promoting women's
rights and health and the overall promotion of the family's well-being. Thus,
aside from R.A. No. 4729, R.A. No. 6365 or "The Population Act of the
Philippines" and R.A. No. 9710, otherwise known as the "The Magna Carta
of Women" were legislated. Notwithstanding this paradigm shift, the
Philippine national population program has always been grounded two
cornerstone principles: "principle of no-abortion" and the "principle of non-

150
coercion."141 As will be discussed later, these principles are not merely
grounded on administrative policy, but rather, originates from the
constitutional protection expressly provided to afford protection to life and
guarantee religious freedom.

In a nutshell, those opposing the RH Law contend that conception is

synonymous with "fertilization" of the female ovum by the male sperm.142
On the other side of the spectrum are those who assert that conception
refers to the "implantation" of the fertilized ovum in the uterus.143

When Life Begins*

Plain and Legal Meaning

Majority of the Members of the Court are of the position that the question of
when life begins is a scientific and medical issue that should not be decided,
at this stage, without proper hearing and evidence. During the deliberation,
however, it was agreed upon that the individual members of the Court could
express their own views on this matter.

It is a canon in statutory construction that the words of the Constitution

should be interpreted in their plain and ordinary meaning. As held in the
recent case of Chavez v. Judicial Bar Council:144

In this regard, the ponente, is of the strong view that life begins at
fertilization.
In answering the question of when life begins, focus should be made on the
particular phrase of Section 12 which reads:
Section 12. The State recognizes the sanctity of family life and shall protect
and strengthen the family as a basic autonomous social institution. It shall
equally protect the life of the mother and the life of the unborn from
conception. The natural and primary right and duty of parents in the rearing
of the youth for civic efficiency and the development of moral character shall
receive the support of the Government.
Textually, the Constitution affords protection to the unborn from conception.
This is undisputable because before conception, there is no unborn to speak
of. For said reason, it is no surprise that the Constitution is mute as to any
proscription prior to conception or when life begins. The problem has arisen
because, amazingly, there are quarters who have conveniently disregarded
the scientific fact that conception is reckoned from fertilization. They are
waving the view that life begins at implantation. Hence, the issue of when life
begins.

One of the primary and basic rules in statutory construction is that where the
words of a statute are clear, plain, and free from ambiguity, it must be given
its literal meaning and applied without attempted interpretation. It is a wellsettled principle of constitutional construction that the language employed in
the Constitution must be given their ordinary meaning except where
technical terms are employed. As much as possible, the words of the
Constitution should be understood in the sense they have in common use.
What it says according to the text of the provision to be construed compels
acceptance and negates the power of the courts to alter it, based on the
postulate that the framers and the people mean what they say. Verba legis
non est recedendum - from the words of a statute there should be no
departure.
The raison d' etre for the rule is essentially two-fold: First, because it is
assumed that the words in which constitutional provisions are couched
express the objective sought to be attained; and second, because the
Constitution is not primarily a lawyer's document but essentially that of the
people, in whose consciousness it should ever be present as an important
condition for the rule of law to prevail.
In conformity with the above principle, the traditional meaning of the word
"conception" which, as described and defined by all reliable and reputable
sources, means that life begins at fertilization.

151
Webster's Third New International Dictionary describes it as the act of
becoming pregnant, formation of a viable zygote; the fertilization that results
in a new entity capable of developing into a being like its parents.145

"The State shall equally protect the life of the mother and the life of the
unborn from the moment of conception."
When is the moment of conception?

Black's Law Dictionary gives legal meaning to the term "conception" as the
fecundation of the female ovum by the male spermatozoon resulting in
human life capable of survival and maturation under normal conditions.146

xxx

Even in jurisprudence, an unborn child has already a legal personality. In

Continental Steel Manufacturing Corporation v. Hon. Accredited Voluntary
Arbitrator Allan S. Montano,147 it was written:

xxx

Life is not synonymous with civil personality. One need not acquire civil
personality first before he/she could die. Even a child inside the womb
already has life. No less than the Constitution recognizes the life of the
unborn from conception, that the State must protect equally with the life of
the mother. If the unborn already has life, then the cessation thereof even
prior to the child being delivered, qualifies as death. [Emphases in the
original]
In Gonzales v. Carhart,148 Justice Anthony Kennedy, writing for the US
Supreme Court, said that the State "has respect for human life at all stages
in the pregnancy" and "a legitimate and substantial interest in preserving and
promoting fetal life." Invariably, in the decision, the fetus was referred to, or
cited, as a baby or a child.149
Intent of the Framers
Records of the Constitutional Convention also shed light on the intention of
the Framers regarding the term "conception" used in Section 12, Article II of
the Constitution. From their deliberations, it clearly refers to the moment of
"fertilization." The records reflect the following:
Rev. Rigos: In Section 9, page 3, there is a sentence which reads:

Mr. Villegas: As I explained in the sponsorship speech, it is when the ovum is

fertilized by the sperm that there is human life. x x x.150

As to why conception is reckoned from fertilization and, as such, the

beginning of human life, it was explained:
Mr. Villegas: I propose to review this issue in a biological manner. The first
question that needs to be answered is: Is the fertilized ovum alive?
Biologically categorically says yes, the fertilized ovum is alive. First of all, like
all living organisms, it takes in nutrients which it processes by itself. It begins
doing this upon fertilization. Secondly, as it takes in these nutrients, it grows
from within. Thirdly, it multiplies itself at a geometric rate in the continuous
process of cell division. All these processes are vital signs of life. Therefore,
there is no question that biologically the fertilized ovum has life.
The second question: Is it human? Genetics gives an equally categorical
"yes." At the moment of conception, the nuclei of the ovum and the sperm
rupture. As this happens 23 chromosomes from the ovum combine with 23
chromosomes of the sperm to form a total of 46 chromosomes. A
chromosome count of 46 is found only - and I repeat, only in human cells.
Therefore, the fertilized ovum is human.

Since these questions have been answered affirmatively, we must conclude

that if the fertilized ovum is both alive and human, then, as night follows day,
it must be human life. Its nature is human.151

152
Why the Constitution used the phrase "from the moment of conception" and
not "from the moment of fertilization" was not because of doubt when human
life begins, but rather, because:
Mr. Tingson: x x x x the phrase from the moment of conception" was
described by us here before with the scientific phrase "fertilized ovum" may
be beyond the comprehension of some people; we want to use the simpler
phrase "from the moment of conception."152
Thus, in order to ensure that the fertilized ovum is given ample protection
under the Constitution, it was discussed:
Rev. Rigos: Yes, we think that the word "unborn" is sufficient for the purpose
of writing a Constitution, without specifying "from the moment of conception."
Mr. Davide: I would not subscribe to that particular view because according
to the Commissioner's own admission, he would leave it to Congress to
define when life begins. So, Congress can define life to begin from six
months after fertilization; and that would really be very, very, dangerous. It is
now determined by science that life begins from the moment of conception.
There can be no doubt about it. So we should not give any doubt to
Congress, too.153
Upon further inquiry, it was asked:
Mr. Gascon: Mr. Presiding Officer, I would like to ask a question on that point.
Actually, that is one of the questions I was going to raise during the period of
interpellations but it has been expressed already. The provision, as proposed
right now states:
The State shall equally protect the life of the mother and the life of the
unborn from the moment of conception.
When it speaks of "from the moment of conception," does this mean when
the egg meets the sperm?
Mr. Villegas: Yes, the ovum is fertilized by the sperm.

Therefore that does not leave to Congress the right to determine whether
certain contraceptives that we know today are abortifacient or not because it
is a fact that some of the so-called contraceptives deter the rooting of the
ovum in the uterus. If fertilization has already occurred, the next process is
for the fertilized ovum to travel towards the uterus and to take root. What
happens with some contraceptives is that they stop the opportunity for the
fertilized ovum to reach the uterus. Therefore, if we take the provision as it is
proposed, these so called contraceptives should be banned.
Mr. Villgas: Yes, if that physical fact is established, then that is what is called
abortifacient and, therefore, would be unconstitutional and should be banned
under this provision.
Mr. Gascon: Yes. So my point is that I do not think it is up to Congress to
state whether or not these certain contraceptives are abortifacient.
Scientifically and based on the provision as it is now proposed, they are
already considered abortifacient.154

From the deliberations above-quoted, it is apparent that the Framers of the

Constitution emphasized that the State shall provide equal protection to both
the mother and the unborn child from the earliest opportunity of life, that is,
upon fertilization or upon the union of the male sperm and the female ovum.
It is also apparent is that the Framers of the Constitution intended that to
prohibit Congress from enacting measures that would allow it determine
when life begins.
Equally apparent, however, is that the Framers of the Constitution did not
intend to ban all contraceptives for being unconstitutional. In fact,
Commissioner Bernardo Villegas, spearheading the need to have a
constitutional provision on the right to life, recognized that the determination
of whether a contraceptive device is an abortifacient is a question of fact
which should be left to the courts to decide on based on established
evidence.155

153
Mr. Azcuna: Yes, to the extent that it is after the fertilization.
From the discussions above, contraceptives that kill or destroy the fertilized
ovum should be deemed an abortive and thus prohibited. Conversely,
contraceptives that actually prevent the union of the male sperm and the
female ovum, and those that similarly take action prior to fertilization should
be deemed non-abortive, and thus, constitutionally permissible.
As emphasized by the Framers of the Constitution:
xxx

xxx

xxx

Mr. Gascon: xx xx. As I mentioned in my speech on the US bases, I am prolife, to the point that I would like not only to protect the life of the unborn, but
also the lives of the millions of people in the world by fighting for a nuclearfree world. I would just like to be assured of the legal and pragmatic
implications of the term "protection of the life of the unborn from the moment
of conception." I raised some of these implications this afternoon when I
interjected in the interpellation of Commissioner Regalado. I would like to ask
that question again for a categorical answer.
I mentioned that if we institutionalize the term "the life of the unborn from the
moment of conception" we are also actually saying "no," not "maybe," to
certain contraceptives which are already being encouraged at this point in
time. Is that the sense of the committee or does it disagree with me?
Mr. Azcuna: No, Mr. Presiding Officer, because contraceptives would be
preventive. There is no unborn yet. That is yet unshaped.
Mr. Gascon: Yes, Mr. Presiding Officer, but I was speaking more about some
contraceptives, such as the intra-uterine device which actually stops the egg
which has already been fertilized from taking route to the uterus. So if we say
"from the moment of conception," what really occurs is that some of these
contraceptives will have to be unconstitutionalized.

Mr. Gascon: Thank you, Mr. Presiding Officer.156

The fact that not all contraceptives are prohibited by the 1987 Constitution is
even admitted by petitioners during the oral arguments. There it was
conceded that tubal ligation, vasectomy, even condoms are not classified as
abortifacients.157
Atty. Noche:
Before the union of the eggs, egg and the sperm, there is no life yet.
Justice Bersamin:
There is no life.
Atty. Noche:
So, there is no life to be protected.
Justice Bersamin:
To be protected.
Atty. Noche:
Under Section 12, yes.
Justice Bersamin:
So you have no objection to condoms?
Atty. Noche:
Not under Section 12, Article II.

Justice Bersamin:

154

Even if there is already information that condoms sometimes have porosity?

Atty. Noche:
Well, yes, Your Honor, there are scientific findings to that effect, Your Honor,
but I am discussing here Section 12, Article II, Your Honor, yes.
Justice Bersamin:
Alright.
Atty. Noche:
And it's not, I have to admit it's not an abortifacient, Your Honor.158
Medical Meaning
That conception begins at fertilization is not bereft of medical foundation.
Mosby s Medical, Nursing, and Allied Health Dictionary defines conception
as "the beginning of pregnancy usually taken to be the instant a
spermatozoon enters an ovum and forms a viable zygote."159
It describes fertilization as "the union of male and female gametes to form a
zygote from which the embryo develops."160
The Textbook of Obstetrics (Physiological & Pathological Obstetrics),161
used by medical schools in the Philippines, also concludes that human life
(human person) begins at the moment of fertilization with the union of the
egg and the sperm resulting in the formation of a new individual, with a
unique genetic composition that dictates all developmental stages that
ensue.
Similarly, recent medical research on the matter also reveals that: "Human
development begins after the union of male and female gametes or germ
cells during a process known as fertilization (conception). Fertilization is a
sequence of events that begins with the contact of a sperm (spermatozoon)

with a secondary oocyte (ovum) and ends with the fusion of their pronuclei
(the haploid nuclei of the sperm and ovum) and the mingling of their
chromosomes to form a new cell. This fertilized ovum, known as a zygote, is
a large diploid cell that is the beginning, or primordium, of a human
being."162
The authors of Human Embryology & Teratology163 mirror the same
position. They wrote: "Although life is a continuous process, fertilization is a
critical landmark because, under ordinary circumstances, a new, genetically
distinct human organism is thereby formed.... The combination of 23
chromosomes present in each pronucleus results in 46 chromosomes in the
zygote. Thus the diploid number is restored and the embryonic genome is
formed. The embryo now exists as a genetic unity."
In support of the RH Bill, The Philippine Medical Association came out with a
"Paper on the Reproductive Health Bill (Responsible Parenthood Bill)" and
therein concluded that:
CONCLUSION
The PMA throws its full weight in supporting the RH Bill at the same time that
PMA maintains its strong position that fertilization is sacred because it is at
this stage that conception, and thus human life, begins. Human lives are
sacred from the moment of conception, and that destroying those new lives
is never licit, no matter what the purported good outcome would be. In terms
of biology and human embryology, a human being begins immediately at
fertilization and after that, there is no point along the continuous line of
human embryogenesis where only a "potential" human being can be posited.
Any philosophical, legal, or political conclusion cannot escape this objective
scientific fact.
The scientific evidence supports the conclusion that a zygote is a human
organism and that the life of a new human being commences at a
scientifically well defined "moment of conception." This conclusion is
objective, consistent with the factual evidence, and independent of any

155
specific ethical, moral, political, or religious view of human life or of human
embryos.164

It would legally permit what the Constitution proscribes - abortion and

abortifacients.

Conclusion: The Moment of Conception is Reckoned from

The RH Law and Abortion

Fertilization

The clear and unequivocal intent of the Framers of the 1987 Constitution in
protecting the life of the unborn from conception was to prevent the
Legislature from enacting a measure legalizing abortion. It was so clear that
even the Court cannot interpret it otherwise. This intent of the Framers was
captured in the record of the proceedings of the 1986 Constitutional
Commission. Commissioner Bernardo Villegas, the principal proponent of
the protection of the unborn from conception, explained:

In all, whether it be taken from a plain meaning, or understood under medical

parlance, and more importantly, following the intention of the Framers of the
Constitution, the undeniable conclusion is that a zygote is a human organism
and that the life of a new human being commences at a scientifically welldefined moment of conception, that is, upon fertilization.
For the above reasons, the Court cannot subscribe to the theory advocated
by Hon. Lagman that life begins at implantation.165 According to him,
"fertilization and conception are two distinct and successive stages in the
reproductive process. They are not identical and synonymous."166 Citing a
letter of the WHO, he wrote that "medical authorities confirm that the
implantation of the fertilized ovum is the commencement of conception and it
is only after implantation that pregnancy can be medically detected."167
This theory of implantation as the beginning of life is devoid of any legal or
scientific mooring. It does not pertain to the beginning of life but to the
viability of the fetus. The fertilized ovum/zygote is not an inanimate object - it
is a living human being complete with DNA and 46 chromosomes.168
Implantation has been conceptualized only for convenience by those who
had population control in mind. To adopt it would constitute textual infidelity
not only to the RH Law but also to the Constitution.

The intention .. .is to make sure that there would be no pro-abortion laws
ever passed by Congress or any pro-abortion decision passed by the
Supreme Court.169
A reading of the RH Law would show that it is in line with this intent and
actually proscribes abortion. While the Court has opted not to make any
determination, at this stage, when life begins, it finds that the RH Law itself
clearly mandates that protection be afforded from the moment of fertilization.
As pointed out by Justice Carpio, the RH Law is replete with provisions that
embody the policy of the law to protect to the fertilized ovum and that it
should be afforded safe travel to the uterus for implantation.170
Moreover, the RH Law recognizes that abortion is a crime under Article 256
of the Revised Penal Code, which penalizes the destruction or expulsion of
the fertilized ovum. Thus:

Not surprisingly, even the OSG does not support this position.

1] xx x.

If such theory would be accepted, it would unnervingly legitimize the

utilization of any drug or device that would prevent the implantation of the
fetus at the uterine wall. It would be provocative and further aggravate
religious-based divisiveness.

Section 4. Definition of Terms. - For the purpose of this Act, the following
terms shall be defined as follows:

xxx.

156
(q) Reproductive health care refers to the access to a full range of methods,
facilities, services and supplies that contribute to reproductive health and
well-being by addressing reproductive health-related problems. It also
includes sexual health, the purpose of which is the enhancement of life and
personal relations. The elements of reproductive health care include the
following:
xxx.
(3) Proscription of abortion and management of abortion complications;
xxx
2] xx x.
Section 4. x x x.
(s) Reproductive health rights refers to the rights of individuals and couples,
to decide freely and responsibly whether or not to have children; the number,
spacing and timing of their children; to make other decisions concerning
reproduction, free of discrimination, coercion and violence; to have the
information and means to do so; and to attain the highest standard of sexual
health and reproductive health: Provided, however, That reproductive health
rights do not include abortion, and access to abortifacients.
3] xx x.
SEC. 29. Repealing Clause. - Except for prevailing laws against abortion,
any law, presidential decree or issuance, executive order, letter of instruction,
administrative order, rule or regulation contrary to or is inconsistent with the
provisions of this Act including Republic Act No. 7392, otherwise known as
the Midwifery Act, is hereby repealed, modified or amended accordingly.
The RH Law and Abortifacients

In carrying out its declared policy, the RH Law is consistent in prohibiting

abortifacients. To be clear, Section 4(a) of the RH Law defines an
abortifacient as:
Section 4. Definition of Terms - x x x x
(a) Abortifacient refers to any drug or device that induces abortion or the
destruction of a fetus inside the mother's womb or the prevention of the
fertilized ovum to reach and be implanted in the mother's womb upon
determination of the FDA.
As stated above, the RH Law mandates that protection must be afforded
from the moment of fertilization. By using the word " or," the RH Law
prohibits not only drugs or devices that prevent implantation, but also those
that induce abortion and those that induce the destruction of a fetus inside
the mother's womb. Thus, an abortifacient is any drug or device that either:
(a) Induces abortion; or
(b) Induces the destruction of a fetus inside the mother's womb; or
(c) Prevents the fertilized ovum to reach and be implanted in the mother's
womb, upon determination of the FDA.
Contrary to the assertions made by the petitioners, the Court finds that the
RH Law, consistent with the Constitution, recognizes that the fertilized ovum
already has life and that the State has a bounden duty to protect it. The
conclusion becomes clear because the RH Law, first, prohibits any drug or
device that induces abortion (first kind), which, as discussed exhaustively
above, refers to that which induces the killing or the destruction of the
fertilized ovum, and, second, prohibits any drug or device the fertilized ovum
to reach and be implanted in the mother's womb (third kind).
By expressly declaring that any drug or device that prevents the fertilized
ovum to reach and be implanted in the mother's womb is an abortifacient
(third kind), the RH Law does not intend to mean at all that life only begins
only at implantation, as Hon. Lagman suggests. It also does not declare

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either that protection will only be given upon implantation, as the petitioners
likewise suggest. Rather, it recognizes that: one, there is a need to protect
the fertilized ovum which already has life, and two, the fertilized ovum must
be protected the moment it becomes existent - all the way until it reaches
and implants in the mother's womb. After all, if life is only recognized and
afforded protection from the moment the fertilized ovum implants - there is
nothing to prevent any drug or device from killing or destroying the fertilized
ovum prior to implantation.
From the foregoing, the Court finds that inasmuch as it affords protection to
the fertilized ovum, the RH Law does not sanction abortion. To repeat, it is
the Court's position that life begins at fertilization, not at implantation. When
a fertilized ovum is implanted in the uterine wall , its viability is sustained but
that instance of implantation is not the point of beginning of life. It started
earlier. And as defined by the RH Law, any drug or device that induces
abortion, that is, which kills or destroys the fertilized ovum or prevents the
fertilized ovum to reach and be implanted in the mother's womb, is an
abortifacient.
Proviso Under Section 9 of the RH Law
This notwithstanding, the Court finds that the proviso under Section 9 of the
law that "any product or supply included or to be included in the EDL must
have a certification from the FDA that said product and supply is made
available on the condition that it is not to be used as an abortifacient" as
empty as it is absurd. The FDA, with all its expertise, cannot fully attest that a
drug or device will not all be used as an abortifacient, since the agency
cannot be present in every instance when the contraceptive product or
supply will be used.171
Pursuant to its declared policy of providing access only to safe, legal and
non-abortifacient contraceptives, however, the Court finds that the proviso of
Section 9, as worded, should bend to the legislative intent and mean that
"any product or supply included or to be included in the EDL must have a
certification from the FDA that said product and supply is made available on
the condition that it cannot be used as abortifacient." Such a construction is

consistent with the proviso under the second paragraph of the same section
that provides:
Provided, further, That the foregoing offices shall not purchase or acquire by
any means emergency contraceptive pills, postcoital pills, abortifacients that
will be used for such purpose and their other forms or equivalent.
Abortifacients under the RH-IRR
At this juncture, the Court agrees with ALFI that the authors of the RH-IRR
gravely abused their office when they redefined the meaning of abortifacient.
The RH Law defines "abortifacient" as follows:
SEC. 4. Definition of Terms. - For the purpose of this Act, the following terms
shall be defined as follows:
(a) Abortifacient refers to any drug or device that induces abortion or the
destruction of a fetus inside the mother's womb or the prevention of the
fertilized ovum to reach and be implanted in the mother's womb upon
determination of the FDA.
Section 3.0l (a) of the IRR, however, redefines "abortifacient" as:
Section 3.01 For purposes of these Rules, the terms shall be defined as
follows:
a) Abortifacient refers to any drug or device that primarily induces abortion or
the destruction of a fetus inside the mother's womb or the prevention of the
fertilized ovum to reach and be implanted in the mother's womb upon
determination of the Food and Drug Administration (FDA). [Emphasis
supplied]
Again in Section 3.0lG) of the RH-IRR, "contraceptive," is redefined, viz:
j) Contraceptive refers to any safe, legal, effective and scientifically proven
modern family planning method, device, or health product, whether natural or
artificial, that prevents pregnancy but does not primarily destroy a fertilized
ovum or prevent a fertilized ovum from being implanted in the mother's

158
womb in doses of its approved indication as determined by the Food and
Drug Administration (FDA).
The above-mentioned section of the RH-IRR allows "contraceptives" and
recognizes as "abortifacient" only those that primarily induce abortion or the
destruction of a fetus inside the mother's womb or the prevention of the
fertilized ovum to reach and be implanted in the mother's womb.172
This cannot be done.
In this regard, the observations of Justice Brion and Justice Del Castillo are
well taken. As they pointed out, with the insertion of the word "primarily,"
Section 3.0l(a) and G) of the RH-IRR173 must be struck down for being ultra
vires.
Evidently, with the addition of the word "primarily," in Section 3.0l(a) and G)
of the RH-IRR is indeed ultra vires. It contravenes Section 4(a) of the RH
Law and should, therefore, be declared invalid. There is danger that the
insertion of the qualifier "primarily" will pave the way for the approval of
contraceptives which may harm or destroy the life of the unborn from
conception/fertilization in violation of Article II, Section 12 of the Constitution.
With such qualification in the RH-IRR, it appears to insinuate that a
contraceptive will only be considered as an "abortifacient" if its sole known
effect is abortion or, as pertinent here, the prevention of the implantation of
the fertilized ovum.
For the same reason, this definition of "contraceptive" would permit the
approval of contraceptives which are actually abortifacients because of their
fail-safe mechanism.174
Also, as discussed earlier, Section 9 calls for the certification by the FDA that
these contraceptives cannot act as abortive. With this, together with the
definition of an abortifacient under Section 4 (a) of the RH Law and its
declared policy against abortion, the undeniable conclusion is that
contraceptives to be included in the PNDFS and the EDL will not only be
those contraceptives that do not have the primary action of causing abortion

or the destruction of a fetus inside the mother's womb or the prevention of

the fertilized ovum to reach and be implanted in the mother's womb, but also
those that do not have the secondary action of acting the same way.
Indeed, consistent with the constitutional policy prohibiting abortion, and in
line with the principle that laws should be construed in a manner that its
constitutionality is sustained, the RH Law and its implementing rules must be
consistent with each other in prohibiting abortion. Thus, the word " primarily"
in Section 3.0l(a) and G) of the RH-IRR should be declared void. To uphold
the validity of Section 3.0l(a) and G) of the RH-IRR and prohibit only those
contraceptives that have the primary effect of being an abortive would
effectively "open the floodgates to the approval of contraceptives which may
harm or destroy the life of the unborn from conception/fertilization in violation
of Article II, Section 12 of the Constitution."175
To repeat and emphasize, in all cases, the "principle of no abortion"
embodied in the constitutional protection of life must be upheld.
2-The Right to Health
The petitioners claim that the RH Law violates the right to health because it
requires the inclusion of hormonal contraceptives, intrauterine devices,
injectables and family products and supplies in the National Drug Formulary
and the inclusion of the same in the regular purchase of essential medicines
and supplies of all national hospitals.176 Citing various studies on the
matter, the petitioners posit that the risk of developing breast and cervical
cancer is greatly increased in women who use oral contraceptives as
compared to women who never use them. They point out that the risk is
decreased when the use of contraceptives is discontinued. Further, it is
contended that the use of combined oral contraceptive pills is associated
with a threefold increased risk of venous thromboembolism, a twofold
increased risk of ischematic stroke, and an indeterminate effect on risk of
myocardial infarction.177 Given the definition of "reproductive health" and
"sexual health" under Sections 4(p)178 and (w)179 of the RH Law, the
petitioners assert that the assailed legislation only seeks to ensure that
women have pleasurable and satisfying sex lives.180

159
The OSG, however, points out that Section 15, Article II of the Constitution is
not self-executory, it being a mere statement of the administration's principle
and policy. Even if it were self-executory, the OSG posits that medical
authorities refute the claim that contraceptive pose a danger to the health of
women.181
The Court's Position
A component to the right to life is the constitutional right to health. In this
regard, the Constitution is replete with provisions protecting and promoting
the right to health. Section 15, Article II of the Constitution provides:
Section 15. The State shall protect and promote the right to health of the
people and instill health consciousness among them.
A portion of Article XIII also specifically provides for the States' duty to
provide for the health of the people, viz:
HEALTH
Section 11. The State shall adopt an integrated and comprehensive
approach to health development which shall endeavor to make essential
goods, health and other social services available to all the people at
affordable cost. There shall be priority for the needs of the underprivileged,
sick, elderly, disabled, women, and children. The State shall endeavor to
provide free medical care to paupers.
Section 12. The State shall establish and maintain an effective food and drug
regulatory system and undertake appropriate health, manpower
development, and research, responsive to the country's health needs and
problems.

Section 13. The State shall establish a special agency for disabled person
for their rehabilitation, self-development, and self-reliance, and their
integration into the mainstream of society.

Finally, Section 9, Article XVI provides:

Section 9. The State shall protect consumers from trade malpractices and
from substandard or hazardous products.
Contrary to the respondent's notion, however, these provisions are selfexecuting. Unless the provisions clearly express the contrary, the provisions
of the Constitution should be considered self-executory. There is no need for
legislation to implement these self-executing provisions.182 In Manila Prince
Hotel v. GSIS,183 it was stated:
x x x Hence, unless it is expressly provided that a legislative act is necessary
to enforce a constitutional mandate, the presumption now is that all
provisions of the constitution are self-executing. If the constitutional
provisions are treated as requiring legislation instead of self-executing, the
legislature would have the power to ignore and practically nullify the mandate
of the fundamental law. This can be cataclysmic. That is why the prevailing
view is, as it has always been, that
... in case of doubt, the Constitution should be considered self-executing
rather than non-self-executing. . . . Unless the contrary is clearly intended,
the provisions of the Constitution should be considered self-executing, as a
contrary rule would give the legislature discretion to determine when, or
whether, they shall be effective. These provisions would be subordinated to
the will of the lawmaking body, which could make them entirely meaningless
by simply refusing to pass the needed implementing statute. (Emphases
supplied)
This notwithstanding, it bears mentioning that the petitioners, particularly
ALFI, do not question contraception and contraceptives per se.184 In fact,
ALFI prays that the status quo - under R.A. No. 5921 and R.A. No. 4729, the
sale and distribution of contraceptives are not prohibited when they are
dispensed by a prescription of a duly licensed by a physician - be
maintained.185

160
The legislative intent in the enatment of the RH Law in this regard is to leave
intact the provisions of R.A. No. 4729. There is no intention at all to do away
with it. It is still a good law and its requirements are still in to be complied
with. Thus, the Court agrees with the observation of respondent Lagman that
the effectivity of the RH Law will not lead to the unmitigated proliferation of
contraceptives since the sale, distribution and dispensation of contraceptive
drugs and devices will still require the prescription of a licensed physician.
With R.A. No. 4729 in place, there exists adequate safeguards to ensure the
public that only contraceptives that are safe are made available to the public.
As aptly explained by respondent Lagman:

"Section 1. It shall be unlawful for any person, partnership, or corporation, to

sell, dispense or otherwise distribute whether for or without consideration,
any contraceptive drug or device, unless such sale, dispensation or
distribution is by a duly licensed drug store or pharmaceutical company and
with the prescription of a qualified medical practitioner.

D. Contraceptives cannot be

"(b) "Contraceptive device" is any instrument, device, material, or agent

introduced into the female reproductive system for the primary purpose of
preventing conception.

dispensed and used without

prescription
108. As an added protection to voluntary users of contraceptives, the same
cannot be dispensed and used without prescription.
109. Republic Act No. 4729 or "An Act to Regulate the Sale, Dispensation,
and/ or Distribution of Contraceptive Drugs and Devices" and Republic Act
No. 5921 or "An Act Regulating the Practice of Pharmacy and Setting
Standards of Pharmaceutical Education in the Philippines and for Other
Purposes" are not repealed by the RH Law and the provisions of said Acts
are not inconsistent with the RH Law.
110. Consequently, the sale, distribution and dispensation of contraceptive
drugs and devices are particularly governed by RA No. 4729 which provides
in full:

"Sec. 2 . For the purpose of this Act:

"(a) "Contraceptive drug" is any medicine, drug, chemical, or portion which is
used exclusively for the purpose of preventing fertilization of the female
ovum: and

"Sec. 3 Any person, partnership, or corporation, violating the provisions of

this Act shall be punished with a fine of not more than five hundred pesos or
an imprisonment of not less than six months or more than one year or both in
the discretion of the Court.
"This Act shall take effect upon its approval.
"Approved: June 18, 1966"
111. Of the same import, but in a general manner, Section 25 of RA No. 5921
provides:
"Section 25. Sale of medicine, pharmaceuticals, drugs and devices. No
medicine, pharmaceutical, or drug of whatever nature and kind or device
shall be compounded, dispensed, sold or resold, or otherwise be made
available to the consuming public except through a prescription drugstore or
hospital pharmacy, duly established in accordance with the provisions of this
Act.

161
112. With all of the foregoing safeguards, as provided for in the RH Law and
other relevant statutes, the pretension of the petitioners that the RH Law will
lead to the unmitigated proliferation of contraceptives, whether harmful or
not, is completely unwarranted and baseless.186 [Emphases in the Original.
Underlining supplied.]
In Re: Section 10 of the RH Law:
The foregoing safeguards should be read in connection with Section 10 of
the RH Law which provides:
SEC. 10. Procurement and Distribution of Family Planning Supplies. - The
DOH shall procure, distribute to LGUs and monitor the usage of family
planning supplies for the whole country. The DOH shall coordinate with all
appropriate local government bodies to plan and implement this procurement
and distribution program. The supply and budget allotments shall be based
on, among others, the current levels and projections of the following:
(a) Number of women of reproductive age and couples who want to space or
limit their children;
(b) Contraceptive prevalence rate, by type of method used; and
(c) Cost of family planning supplies.
Provided, That LGUs may implement its own procurement, distribution and
monitoring program consistent with the overall provisions of this Act and the
guidelines of the DOH.
Thus, in the distribution by the DOH of contraceptive drugs and devices, it
must consider the provisions of R.A. No. 4729, which is still in effect, and
ensure that the contraceptives that it will procure shall be from a duly
licensed drug store or pharmaceutical company and that the actual
dispensation of these contraceptive drugs and devices will done following a
prescription of a qualified medical practitioner. The distribution of
contraceptive drugs and devices must not be indiscriminately done. The
public health must be protected by all possible means. As pointed out by

Justice De Castro, a heavy responsibility and burden are assumed by the

government in supplying contraceptive drugs and devices, for it may be held
accountable for any injury, illness or loss of life resulting from or incidental to
their use.187
At any rate, it bears pointing out that not a single contraceptive has yet been
submitted to the FDA pursuant to the RH Law. It behooves the Court to await
its determination which drugs or devices are declared by the FDA as safe, it
being the agency tasked to ensure that food and medicines available to the
public are safe for public consumption. Consequently, the Court finds that, at
this point, the attack on the RH Law on this ground is premature. Indeed, the
various kinds of contraceptives must first be measured up to the
constitutional yardstick as expounded herein, to be determined as the case
presents itself.
At this point, the Court is of the strong view that Congress cannot legislate
that hormonal contraceptives and intra-uterine devices are safe and nonabortifacient. The first sentence of Section 9 that ordains their inclusion by
the National Drug Formulary in the EDL by using the mandatory "shall" is to
be construed as operative only after they have been tested, evaluated, and
approved by the FDA. The FDA, not Congress, has the expertise to
determine whether a particular hormonal contraceptive or intrauterine device
is safe and non-abortifacient. The provision of the third sentence concerning
the requirements for the inclusion or removal of a particular family planning
supply from the EDL supports this construction.
Stated differently, the provision in Section 9 covering the inclusion of
hormonal contraceptives, intra-uterine devices, injectables, and other safe,
legal, non-abortifacient and effective family planning products and supplies
by the National Drug Formulary in the EDL is not mandatory. There must first
be a determination by the FDA that they are in fact safe, legal, nonabortifacient and effective family planning products and supplies. There can
be no predetermination by Congress that the gamut of contraceptives are
"safe, legal, non-abortifacient and effective" without the proper scientific
examination.

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3 -Freedom of Religion
and the Right to Free Speech
Position of the Petitioners:
1. On Contraception
While contraceptives and procedures like vasectomy and tubal ligation are
not covered by the constitutional proscription, there are those who, because
of their religious education and background, sincerely believe that
contraceptives, whether abortifacient or not, are evil. Some of these are
medical practitioners who essentially claim that their beliefs prohibit not only
the use of contraceptives but also the willing participation and cooperation in
all things dealing with contraceptive use. Petitioner PAX explained that
"contraception is gravely opposed to marital chastity, it is contrary to the
good of the transmission of life, and to the reciprocal self-giving of the
spouses; it harms true love and denies the sovereign rule of God in the
transmission of Human life."188
The petitioners question the State-sponsored procurement of contraceptives,
arguing that the expenditure of their taxes on contraceptives violates the
guarantee of religious freedom since contraceptives contravene their
religious beliefs.189
2. On Religious Accommodation and
The Duty to Refer
Petitioners Imbong and Luat note that while the RH Law attempts to address
religious sentiments by making provisions for a conscientious objector, the
constitutional guarantee is nonetheless violated because the law also
imposes upon the conscientious objector the duty to refer the patient seeking
reproductive health services to another medical practitioner who would be
able to provide for the patient's needs. For the petitioners, this amounts to
requiring the conscientious objector to cooperate with the very thing he
refuses to do without violating his/her religious beliefs.190

They further argue that even if the conscientious objector's duty to refer is
recognized, the recognition is unduly limited, because although it allows a
conscientious objector in Section 23 (a)(3) the option to refer a patient
seeking reproductive health services and information - no escape is afforded
the conscientious objector in Section 23 (a)(l) and (2), i.e. against a patient
seeking reproductive health procedures. They claim that the right of other
individuals to conscientiously object, such as: a) those working in public
health facilities referred to in Section 7; b) public officers involved in the
implementation of the law referred to in Section 23(b ); and c) teachers in
public schools referred to in Section 14 of the RH Law, are also not
recognize.19
Petitioner Echavez and the other medical practitioners meanwhile, contend
that the requirement to refer the matter to another health care service
provider is still considered a compulsion on those objecting healthcare
service providers. They add that compelling them to do the act against their
will violates the Doctrine of Benevolent Neutrality. Sections 9, 14 and 1 7 of
the law are too secular that they tend to disregard the religion of Filipinos.
Authorizing the use of contraceptives with abortive effects, mandatory sex
education, mandatory pro-bono reproductive health services to indigents
encroach upon the religious freedom of those upon whom they are
required.192
Petitioner CFC also argues that the requirement for a conscientious objector
to refer the person seeking reproductive health care services to another
provider infringes on one's freedom of religion as it forces the objector to
become an unwilling participant in the commission of a serious sin under
Catholic teachings. While the right to act on one's belief may be regulated by
the State, the acts prohibited by the RH Law are passive acts which produce
neither harm nor injury to the public.193

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Petitioner CFC adds that the RH Law does not show compelling state
interest to justify regulation of religious freedom because it mentions no
emergency, risk or threat that endangers state interests. It does not explain
how the rights of the people (to equality, non-discrimination of rights,
sustainable human development, health, education, information, choice and
to make decisions according to religious convictions, ethics, cultural beliefs
and the demands of responsible parenthood) are being threatened or are not
being met as to justify the impairment of religious freedom.194
Finally, the petitioners also question Section 15 of the RH Law requiring
would-be couples to attend family planning and responsible parenthood
seminars and to obtain a certificate of compliance. They claim that the
provision forces individuals to participate in the implementation of the RH
Law even if it contravenes their religious beliefs.195 As the assailed law
dangles the threat of penalty of fine and/or imprisonment in case of noncompliance with its provisions, the petitioners claim that the RH Law forcing
them to provide, support and facilitate access and information to
contraception against their beliefs must be struck down as it runs afoul to the
constitutional guarantee of religious freedom.
The Respondents' Positions
The respondents, on the other hand, contend that the RH Law does not
provide that a specific mode or type of contraceptives be used, be it natural
or artificial. It neither imposes nor sanctions any religion or belief.196 They
point out that the RH Law only seeks to serve the public interest by providing
accessible, effective and quality reproductive health services to ensure
maternal and child health, in line with the State's duty to bring to reality the
social justice health guarantees of the Constitution,197 and that what the law
only prohibits are those acts or practices, which deprive others of their right
to reproductive health.198 They assert that the assailed law only seeks to
guarantee informed choice, which is an assurance that no one will be
compelled to violate his religion against his free will.199

The respondents add that by asserting that only natural family planning
should be allowed, the petitioners are effectively going against the
constitutional right to religious freedom, the same right they invoked to assail
the constitutionality of the RH Law.200 In other words, by seeking the
declaration that the RH Law is unconstitutional, the petitioners are asking
that the Court recognize only the Catholic Church's sanctioned natural family
planning methods and impose this on the entire citizenry.201
With respect to the duty to refer, the respondents insist that the same does
not violate the constitutional guarantee of religious freedom, it being a
carefully balanced compromise between the interests of the religious
objector, on one hand, who is allowed to keep silent but is required to refer
-and that of the citizen who needs access to information and who has the
right to expect that the health care professional in front of her will act
professionally. For the respondents, the concession given by the State under
Section 7 and 23(a)(3) is sufficient accommodation to the right to freely
exercise one's religion without unnecessarily infringing on the rights of
others.202
Whatever burden is placed on the petitioner's religious freedom is minimal as
the duty to refer is limited in duration, location and impact.203
Regarding mandatory family planning seminars under Section 15 , the
respondents claim that it is a reasonable regulation providing an opportunity
for would-be couples to have access to information regarding parenthood,
family planning, breastfeeding and infant nutrition. It is argued that those who
object to any information received on account of their attendance in the
required seminars are not compelled to accept information given to them.
They are completely free to reject any information they do not agree with and
retain the freedom to decide on matters of family life without intervention of
the State.204
For their part, respondents De Venecia et al., dispute the notion that natural
family planning is the only method acceptable to Catholics and the Catholic
hierarchy. Citing various studies and surveys on the matter, they highlight the
changing stand of the Catholic Church on contraception throughout the years

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and note the general acceptance of the benefits of contraceptives by its
followers in planning their families.
The Church and The State
At the outset, it cannot be denied that we all live in a heterogeneous society.
It is made up of people of diverse ethnic, cultural and religious beliefs and
backgrounds. History has shown us that our government, in law and in
practice, has allowed these various religious, cultural, social and racial
groups to thrive in a single society together. It has embraced minority groups
and is tolerant towards all - the religious people of different sects and the
non-believers. The undisputed fact is that our people generally believe in a
deity, whatever they conceived Him to be, and to whom they call for
guidance and enlightenment in crafting our fundamental law. Thus, the
preamble of the present Constitution reads:
We, the sovereign Filipino people, imploring the aid of Almighty God, in order
to build a just and humane society, and establish a Government that shall
embody our ideals and aspirations, promote the common good, conserve
and develop our patrimony, and secure to ourselves and our posterity, the
blessings of independence and democracy under the rule of law and a
regime of truth, justice, freedom, love, equality, and peace, do ordain and
promulgate this Constitution.
The Filipino people in "imploring the aid of Almighty God " manifested their
spirituality innate in our nature and consciousness as a people, shaped by
tradition and historical experience. As this is embodied in the preamble, it
means that the State recognizes with respect the influence of religion in so
far as it instills into the mind the purest principles of morality.205 Moreover, in
recognition of the contributions of religion to society, the 1935, 1973 and
1987 constitutions contain benevolent and accommodating provisions
towards religions such as tax exemption of church property, salary of
religious officers in government institutions, and optional religious
instructions in public schools.

The Framers, however, felt the need to put up a strong barrier so that the
State would not encroach into the affairs of the church, and vice-versa. The
principle of separation of Church and State was, thus, enshrined in Article II,
Section 6 of the 1987 Constitution, viz:
Section 6. The separation of Church and State shall be inviolable.
Verily, the principle of separation of Church and State is based on mutual
respect.1wphi1 Generally, the State cannot meddle in the internal affairs of
the church, much less question its faith and dogmas or dictate upon it. It
cannot favor one religion and discriminate against another. On the other
hand, the church cannot impose its beliefs and convictions on the State and
the rest of the citizenry. It cannot demand that the nation follow its beliefs,
even if it sincerely believes that they are good for the country.
Consistent with the principle that not any one religion should ever be
preferred over another, the Constitution in the above-cited provision utilizes
the term "church" in its generic sense, which refers to a temple, a mosque,
an iglesia, or any other house of God which metaphorically symbolizes a
religious organization. Thus, the "Church" means the religious congregations
collectively.
Balancing the benefits that religion affords and the need to provide an ample
barrier to protect the State from the pursuit of its secular objectives, the
Constitution lays down the following mandate in Article III, Section 5 and
Article VI, Section 29 (2), of the 1987 Constitution:
Section. 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.
Section 29.

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xxx.
No public money or property shall be appropriated, applied, paid, or
employed, directly or indirectly, for the use, benefit, or support of any sect,
church, denomination, sectarian institution, or system of religion, or of any
priest, preacher, minister, other religious teacher, or dignitary as such, except
when such priest, preacher, minister, or dignitary is assigned to the armed
forces, or to any penal institution, or government orphanage or leprosarium.
In short, the constitutional assurance of religious freedom provides two
guarantees: the Establishment Clause and the Free Exercise Clause.
The establishment clause "principally prohibits the State from sponsoring
any religion or favoring any religion as against other religions. It mandates a
strict neutrality in affairs among religious groups."206 Essentially, it prohibits
the establishment of a state religion and the use of public resources for the
support or prohibition of a religion.
On the other hand, the basis of the free exercise clause is the respect for the
inviolability of the human conscience.207 Under this part of religious freedom
guarantee, the State is prohibited from unduly interfering with the outside
manifestations of one's belief and faith.208 Explaining the concept of
religious freedom, the Court, in Victoriano v. Elizalde Rope Workers
Union209 wrote:
The constitutional provisions not only prohibits legislation for the support of
any religious tenets or the modes of worship of any sect, thus forestalling
compulsion by law of the acceptance of any creed or the practice of any form
of worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but also
assures the free exercise of one's chosen form of religion within limits of
utmost amplitude. It has been said that the religion clauses of the
Constitution are all designed to protect the broadest possible liberty of
conscience, to allow each man to believe as his conscience directs, to
profess his beliefs, and to live as he believes he ought to live, consistent with
the liberty of others and with the common good. Any legislation whose effect
or purpose is to impede the observance of one or all religions, or to

discriminate invidiously between the religions, is invalid, even though the

burden may be characterized as being only indirect. (Sherbert v. Verner, 374
U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970) But if the state regulates conduct
by enacting, within its power, a general law which has for its purpose and
effect to advance the state's secular goals, the statute is valid despite its
indirect burden on religious observance, unless the state can accomplish its
purpose without imposing such burden. (Braunfeld v. Brown, 366 U.S. 599, 6
Led. 2d. 563, 81 S. Ct. 144; McGowan v. Maryland, 366 U.S. 420, 444-5 and
449).
As expounded in Escritor,
The establishment and free exercise clauses were not designed to serve
contradictory purposes. They have a single goal-to promote freedom of
individual religious beliefs and practices. In simplest terms, the free exercise
clause prohibits government from inhibiting religious beliefs with penalties for
religious beliefs and practice, while the establishment clause prohibits
government from inhibiting religious belief with rewards for religious beliefs
and practices. In other words, the two religion clauses were intended to deny
government the power to use either the carrot or the stick to influence
individual religious beliefs and practices.210
Corollary to the guarantee of free exercise of one's religion is the principle
that the guarantee of religious freedom is comprised of two parts: the
freedom to believe, and the freedom to act on one's belief. The first part is
absolute. As explained in Gerona v. Secretary of Education:211
The realm of belief and creed is infinite and limitless bounded only by one's
imagination and thought. So is the freedom of belief, including religious
belief, limitless and without bounds. One may believe in most anything,
however strange, bizarre and unreasonable the same may appear to others,
even heretical when weighed in the scales of orthodoxy or doctrinal
standards. But between the freedom of belief and the exercise of said belief,
there is quite a stretch of road to travel.212

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The second part however, is limited and subject to the awesome power of
the State and can be enjoyed only with proper regard to the rights of others.
It is "subject to regulation where the belief is translated into external acts that
affect the public welfare."213
Legislative Acts and the
Free Exercise Clause
Thus, in case of conflict between the free exercise clause and the State, the
Court adheres to the doctrine of benevolent neutrality. This has been clearly
decided by the Court in Estrada v. Escritor, (Escritor)214 where it was stated
"that benevolent neutrality-accommodation, whether mandatory or
permissive, is the spirit, intent and framework underlying the Philippine
Constitution."215 In the same case, it was further explained that"
The benevolent neutrality theory believes that with respect to these
governmental actions, accommodation of religion may be allowed, not to
promote the government's favored form of religion, but to allow individuals
and groups to exercise their religion without hindrance. "The purpose of
accommodation is to remove a burden on, or facilitate the exercise of, a
person's or institution's religion."216 "What is sought under the theory of
accommodation is not a declaration of unconstitutionality of a facially neutral
law, but an exemption from its application or its 'burdensome effect,' whether
by the legislature or the courts."217
In ascertaining the limits of the exercise of religious freedom, the compelling
state interest test is proper.218 Underlying the compelling state interest test
is the notion that free exercise is a fundamental right and that laws burdening
it should be subject to strict scrutiny.219 In Escritor, it was written:
Philippine jurisprudence articulates several tests to determine these limits.
Beginning with the first case on the Free Exercise Clause, American Bible
Society, the Court mentioned the "clear and present danger" test but did not
employ it. Nevertheless, this test continued to be cited in subsequent cases
on religious liberty. The Gerona case then pronounced that the test of

permissibility of religious freedom is whether it violates the established

institutions of society and law. The Victoriano case mentioned the
"immediate and grave danger" test as well as the doctrine that a law of
general applicability may burden religious exercise provided the law is the
least restrictive means to accomplish the goal of the law. The case also
used, albeit inappropriately, the "compelling state interest" test. After
Victoriano , German went back to the Gerona rule. Ebralinag then employed
the "grave and immediate danger" test and overruled the Gerona test. The
fairly recent case of Iglesia ni Cristo went back to the " clear and present
danger" test in the maiden case of A merican Bible Society. Not surprisingly,
all the cases which employed the "clear and present danger" or "grave and
immediate danger" test involved, in one form or another, religious speech as
this test is often used in cases on freedom of expression. On the other hand,
the Gerona and German cases set the rule that religious freedom will not
prevail over established institutions of society and law. Gerona, however,
which was the authority cited by German has been overruled by Ebralinag
which employed the "grave and immediate danger" test . Victoriano was the
only case that employed the "compelling state interest" test, but as explained
previously, the use of the test was inappropriate to the facts of the case.
The case at bar does not involve speech as in A merican Bible Society,
Ebralinag and Iglesia ni Cristo where the "clear and present danger" and
"grave and immediate danger" tests were appropriate as speech has easily
discernible or immediate effects. The Gerona and German doctrine, aside
from having been overruled, is not congruent with the benevolent neutrality
approach, thus not appropriate in this jurisdiction. Similar to Victoriano, the
present case involves purely conduct arising from religious belief. The
"compelling state interest" test is proper where conduct is involved for the
whole gamut of human conduct has different effects on the state's interests:
some effects may be immediate and short-term while others delayed and farreaching. A test that would protect the interests of the state in preventing a
substantive evil, whether immediate or delayed, is therefore necessary.
However, not any interest of the state would suffice to prevail over the right
to religious freedom as this is a fundamental right that enjoys a preferred
position in the hierarchy of rights - "the most inalienable and sacred of all

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human rights", in the words of Jefferson. This right is sacred for an
invocation of the Free Exercise Clause is an appeal to a higher sovereignty.
The entire constitutional order of limited government is premised upon an
acknowledgment of such higher sovereignty, thus the Filipinos implore the
"aid of Almighty God in order to build a just and humane society and
establish a government." As held in Sherbert, only the gravest abuses,
endangering paramount interests can limit this fundamental right. A mere
balancing of interests which balances a right with just a colorable state
interest is therefore not appropriate. Instead, only a compelling interest of the
state can prevail over the fundamental right to religious liberty. The test
requires the state to carry a heavy burden, a compelling one, for to do
otherwise would allow the state to batter religion, especially the less powerful
ones until they are destroyed. In determining which shall prevail between the
state's interest and religious liberty, reasonableness shall be the guide. The
"compelling state interest" serves the purpose of revering religious liberty
while at the same time affording protection to the paramount interests of the
state. This was the test used in Sherbert which involved conduct, i.e. refusal
to work on Saturdays. In the end, the "compelling state interest" test, by
upholding the paramount interests of the state, seeks to protect the very
state, without which, religious liberty will not be preserved. [Emphases in the
original. Underlining supplied.]

matters, as vanguard of the Constitution, it does have authority to determine

whether the RH Law contravenes the guarantee of religious freedom.
At first blush, it appears that the RH Law recognizes and respects religion
and religious beliefs and convictions. It is replete with assurances the no one
can be compelled to violate the tenets of his religion or defy his religious
convictions against his free will. Provisions in the RH Law respecting
religious freedom are the following:
1. The State recognizes and guarantees the human rights of all persons
including their right to equality and nondiscrimination of these rights, the right
to sustainable human development, the right to health which includes
reproductive health, the right to education and information, and the right to
choose and make decisions for themselves in accordance with their religious
convictions, ethics, cultural beliefs, and the demands of responsible
parenthood. [Section 2, Declaration of Policy]
2 . The State recognizes marriage as an inviolable social institution and the
foundation of the family which in turn is the foundation of the nation.
Pursuant thereto, the State shall defend:

The Court's Position

(a) The right of spouses to found a family in accordance with their religious
convictions and the demands of responsible parenthood." [Section 2,
Declaration of Policy]

In the case at bench, it is not within the province of the Court to determine
whether the use of contraceptives or one's participation in the support of
modem reproductive health measures is moral from a religious standpoint or
whether the same is right or wrong according to one's dogma or belief. For
the Court has declared that matters dealing with "faith, practice, doctrine,
form of worship, ecclesiastical law, custom and rule of a church ... are
unquestionably ecclesiastical matters which are outside the province of the
civil courts."220 The jurisdiction of the Court extends only to public and
secular morality. Whatever pronouncement the Court makes in the case at
bench should be understood only in this realm where it has authority. Stated
otherwise, while the Court stands without authority to rule on ecclesiastical

3. The State shall promote and provide information and access, without bias,
to all methods of family planning, including effective natural and modern
methods which have been proven medically safe, legal, non-abortifacient,
and effective in accordance with scientific and evidence-based medical
research standards such as those registered and approved by the FDA for
the poor and marginalized as identified through the NHTS-PR and other
government measures of identifying marginalization: Provided, That the
State shall also provide funding support to promote modern natural methods
of family planning, especially the Billings Ovulation Method, consistent with
the needs of acceptors and their religious convictions. [Section 3(e),
Declaration of Policy]

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4. The State shall promote programs that: (1) enable individuals and couples
to have the number of children they desire with due consideration to the
health, particularly of women, and the resources available and affordable to
them and in accordance with existing laws, public morals and their religious
convictions. [Section 3CDJ
5. The State shall respect individuals' preferences and choice of family
planning methods that are in accordance with their religious convictions and
cultural beliefs, taking into consideration the State's obligations under
various human rights instruments. [Section 3(h)]
6. Active participation by nongovernment organizations (NGOs) , women's
and people's organizations, civil society, faith-based organizations, the
religious sector and communities is crucial to ensure that reproductive health
and population and development policies, plans, and programs will address
the priority needs of women, the poor, and the marginalized. [Section 3(i)]
7. Responsible parenthood refers to the will and ability of a parent to respond
to the needs and aspirations of the family and children. It is likewise a shared
responsibility between parents to determine and achieve the desired number
of children, spacing and timing of their children according to their own family
life aspirations, taking into account psychological preparedness, health
status, sociocultural and economic concerns consistent with their religious
convictions. [Section 4(v)] (Emphases supplied)
While the Constitution prohibits abortion, laws were enacted allowing the use
of contraceptives. To some medical practitioners, however, the whole idea of
using contraceptives is an anathema. Consistent with the principle of
benevolent neutrality, their beliefs should be respected.
The Establishment Clause
and Contraceptives

In the same breath that the establishment clause restricts what the
government can do with religion, it also limits what religious sects can or
cannot do with the government. They can neither cause the government to
adopt their particular doctrines as policy for everyone, nor can they not
cause the government to restrict other groups. To do so, in simple terms,
would cause the State to adhere to a particular religion and, thus,
establishing a state religion.
Consequently, the petitioners are misguided in their supposition that the
State cannot enhance its population control program through the RH Law
simply because the promotion of contraceptive use is contrary to their
religious beliefs. Indeed, the State is not precluded to pursue its legitimate
secular objectives without being dictated upon by the policies of any one
religion. One cannot refuse to pay his taxes simply because it will cloud his
conscience. The demarcation line between Church and State demands that
one render unto Caesar the things that are Caesar's and unto God the things
that are God's.221
The Free Exercise Clause and the Duty to Refer
While the RH Law, in espousing state policy to promote reproductive health
manifestly respects diverse religious beliefs in line with the NonEstablishment Clause, the same conclusion cannot be reached with respect
to Sections 7, 23 and 24 thereof. The said provisions commonly mandate
that a hospital or a medical practitioner to immediately refer a person
seeking health care and services under the law to another accessible
healthcare provider despite their conscientious objections based on religious
or ethical beliefs.
In a situation where the free exercise of religion is allegedly burdened by
government legislation or practice, the compelling state interest test in line
with the Court's espousal of the Doctrine of Benevolent Neutrality in Escritor,
finds application. In this case, the conscientious objector's claim to religious
freedom would warrant an exemption from obligations under the RH Law,
unless the government succeeds in demonstrating a more compelling state
interest in the accomplishment of an important secular objective. Necessarily

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so, the plea of conscientious objectors for exemption from the RH Law
deserves no less than strict scrutiny.
In applying the test, the first inquiry is whether a conscientious objector's
right to religious freedom has been burdened. As in Escritor, there is no
doubt that an intense tug-of-war plagues a conscientious objector. One side
coaxes him into obedience to the law and the abandonment of his religious
beliefs, while the other entices him to a clean conscience yet under the pain
of penalty. The scenario is an illustration of the predicament of medical
practitioners whose religious beliefs are incongruent with what the RH Law
promotes.
The Court is of the view that the obligation to refer imposed by the RH Law
violates the religious belief and conviction of a conscientious objector. Once
the medical practitioner, against his will, refers a patient seeking information
on modem reproductive health products, services, procedures and methods,
his conscience is immediately burdened as he has been compelled to
perform an act against his beliefs. As Commissioner Joaquin A. Bernas
(Commissioner Bernas) has written, "at the basis of the free exercise clause
is the respect for the inviolability of the human conscience.222
Though it has been said that the act of referral is an opt-out clause, it is,
however, a false compromise because it makes pro-life health providers
complicit in the performance of an act that they find morally repugnant or
offensive. They cannot, in conscience, do indirectly what they cannot do
directly. One may not be the principal, but he is equally guilty if he abets the
offensive act by indirect participation.
Moreover, the guarantee of religious freedom is necessarily intertwined with
the right to free speech, it being an externalization of one's thought and
conscience. This in turn includes the right to be silent. With the constitutional
guarantee of religious freedom follows the protection that should be afforded
to individuals in communicating their beliefs to others as well as the
protection for simply being silent. The Bill of Rights guarantees the liberty of
the individual to utter what is in his mind and the liberty not to utter what is
not in his mind.223 While the RH Law seeks to provide freedom of choice

through informed consent, freedom of choice guarantees the liberty of the

religious conscience and prohibits any degree of compulsion or burden,
whether direct or indirect, in the practice of one's religion.224
In case of conflict between the religious beliefs and moral convictions of
individuals, on one hand, and the interest of the State, on the other, to
provide access and information on reproductive health products, services,
procedures and methods to enable the people to determine the timing,
number and spacing of the birth of their children, the Court is of the strong
view that the religious freedom of health providers, whether public or private,
should be accorded primacy. Accordingly, a conscientious objector should be
exempt from compliance with the mandates of the RH Law. If he would be
compelled to act contrary to his religious belief and conviction, it would be
violative of "the principle of non-coercion" enshrined in the constitutional right
to free exercise of religion.
Interestingly, on April 24, 2013, Scotland's Inner House of the Court of
Session, found in the case of Doogan and Wood v. NHS Greater Glasgow
and Clyde Health Board,225 that the midwives claiming to be conscientious
objectors under the provisions of Scotland's Abortion Act of 1967, could not
be required to delegate, supervise or support staff on their labor ward who
were involved in abortions.226 The Inner House stated "that if 'participation'
were defined according to whether the person was taking part 'directly' or '
indirectly' this would actually mean more complexity and uncertainty."227
While the said case did not cover the act of referral, the applicable principle
was the same - they could not be forced to assist abortions if it would be
against their conscience or will.
Institutional Health Providers
The same holds true with respect to non-maternity specialty hospitals and
hospitals owned and operated by a religious group and health care service
providers. Considering that Section 24 of the RH Law penalizes such
institutions should they fail or refuse to comply with their duty to refer under
Section 7 and Section 23(a)(3), the Court deems that it must be struck down

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for being violative of the freedom of religion. The same applies to Section
23(a)(l) and (a)(2) in relation to Section 24, considering that in the
dissemination of information regarding programs and services and in the
performance of reproductive health procedures, the religious freedom of
health care service providers should be respected.
In the case of Islamic Da'wah Council of the Philippines, Inc. v. Office of the
Executive Secretary228 it was stressed:
Freedom of religion was accorded preferred status by the framers of our
fundamental law. And this Court has consistently affirmed this preferred
status, well aware that it is "designed to protect the broadest possible liberty
of conscience, to allow each man to believe as his conscience directs, to
profess his beliefs, and to live as he believes he ought to live, consistent with
the liberty of others and with the common good."10
The Court is not oblivious to the view that penalties provided by law
endeavour to ensure compliance. Without set consequences for either an
active violation or mere inaction, a law tends to be toothless and ineffectual.
Nonetheless, when what is bartered for an effective implementation of a law
is a constitutionally-protected right the Court firmly chooses to stamp its
disapproval. The punishment of a healthcare service provider, who fails
and/or refuses to refer a patient to another, or who declines to perform
reproductive health procedure on a patient because incompatible religious
beliefs, is a clear inhibition of a constitutional guarantee which the Court
cannot allow.
The Implementing Rules and Regulation (RH-IRR)
The last paragraph of Section 5.24 of the RH-IRR reads:
Provided, That skilled health professional such as provincial, city or
municipal health officers, chiefs of hospital, head nurses, supervising
midwives, among others, who by virtue of their office are specifically charged
with the duty to implement the provisions of the RPRH Act and these Rules,
cannot be considered as conscientious objectors.

This is discriminatory and violative of the equal protection clause. The

conscientious objection clause should be equally protective of the religious
belief of public health officers. There is no perceptible distinction why they
should not be considered exempt from the mandates of the law. The
protection accorded to other conscientious objectors should equally apply to
all medical practitioners without distinction whether they belong to the public
or private sector. After all, the freedom to believe is intrinsic in every
individual and the protective robe that guarantees its free exercise is not
taken off even if one acquires employment in the government.
It should be stressed that intellectual liberty occupies a place inferior to none
in the hierarchy of human values. The mind must be free to think what it
wills, whether in the secular or religious sphere, to give expression to its
beliefs by oral discourse or through the media and, thus, seek other candid
views in occasions or gatherings or in more permanent aggrupation.
Embraced in such concept then are freedom of religion, freedom of speech,
of the press, assembly and petition, and freedom of association.229
The discriminatory provision is void not only because no such exception is
stated in the RH Law itself but also because it is violative of the equal
protection clause in the Constitution. Quoting respondent Lagman, if there is
any conflict between the RH-IRR and the RH Law, the law must prevail.
Justice Mendoza:
I'll go to another point. The RH law .. .in your Comment- in-Intervention on
page 52, you mentioned RH Law is replete with provisions in upholding the
freedom of religion and respecting religious convictions. Earlier, you affirmed
this with qualifications. Now, you have read, I presumed you have read the
IRR-Implementing Rules and Regulations of the RH Bill?
Congressman Lagman:
Yes, Your Honor, I have read but I have to admit, it's a long IRR and I have
not thoroughly dissected the nuances of the provisions.

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Justice Mendoza:
I will read to you one provision. It's Section 5.24. This I cannot find in the RH
Law. But in the IRR it says: " .... skilled health professionals such as
provincial, city or municipal health officers, chief of hospitals, head nurses,
supervising midwives, among others, who by virtue of their office are
specifically charged with the duty to implement the provisions of the RPRH
Act and these Rules, cannot be considered as conscientious objectors." Do
you agree with this?

Unfortunately, a deep scrutiny of the respondents' submissions proved to be

in vain. The OSG was curiously silent in the establishment of a more
compelling state interest that would rationalize the curbing of a conscientious
objector's right not to adhere to an action contrary to his religious
convictions. During the oral arguments, the OSG maintained the same
silence and evasion. The Transcripts of the Stenographic Notes disclose the
following:
Justice De Castro:

Congressman Lagman:

Let's go back to the duty of the conscientious objector to refer. ..

I will have to go over again the provisions, Your Honor.

Senior State Solicitor Hilbay:

Justice Mendoza:

Yes, Justice.

In other words, public health officers in contrast to the private practitioners

who can be conscientious objectors, skilled health professionals cannot be
considered conscientious objectors. Do you agree with this? Is this not
against the constitutional right to the religious belief?

Justice De Castro:

Congressman Lagman:

... which you are discussing awhile ago with Justice Abad. What is the
compelling State interest in imposing this duty to refer to a conscientious
objector which refuses to do so because of his religious belief?
Senior State Solicitor Hilbay:

Your Honor, if there is any conflict between the IRR and the law, the law
must prevail.230

Ahh, Your Honor, ..

Compelling State Interest

Justice De Castro:

The foregoing discussion then begets the question on whether the

respondents, in defense of the subject provisions, were able to: 1]
demonstrate a more compelling state interest to restrain conscientious
objectors in their choice of services to render; and 2] discharge the burden of
proof that the obligatory character of the law is the least intrusive means to
achieve the objectives of the law.

What is the compelling State interest to impose this burden?

Senior State Solicitor Hilbay:
In the first place, Your Honor, I don't believe that the standard is a compelling
State interest, this is an ordinary health legislation involving professionals.
This is not a free speech matter or a pure free exercise matter. This is a
regulation by the State of the relationship between medical doctors and their
patients.231

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Resultantly, the Court finds no compelling state interest which would limit the
free exercise clause of the conscientious objectors, however few in number.
Only the prevention of an immediate and grave danger to the security and
welfare of the community can justify the infringement of religious freedom. If
the government fails to show the seriousness and immediacy of the threat,
State intrusion is constitutionally unacceptable.232
Freedom of religion means more than just the freedom to believe. It also
means the freedom to act or not to act according to what one believes. And
this freedom is violated when one is compelled to act against one's belief or
is prevented from acting according to one's belief.233
Apparently, in these cases, there is no immediate danger to the life or health
of an individual in the perceived scenario of the subject provisions. After all, a
couple who plans the timing, number and spacing of the birth of their children
refers to a future event that is contingent on whether or not the mother
decides to adopt or use the information, product, method or supply given to
her or whether she even decides to become pregnant at all. On the other
hand, the burden placed upon those who object to contraceptive use is
immediate and occurs the moment a patient seeks consultation on
reproductive health matters.
Moreover, granting that a compelling interest exists to justify the infringement
of the conscientious objector's religious freedom, the respondents have
failed to demonstrate "the gravest abuses, endangering paramount interests"
which could limit or override a person's fundamental right to religious
freedom. Also, the respondents have not presented any government effort
exerted to show that the means it takes to achieve its legitimate state
objective is the least intrusive means.234 Other than the assertion that the
act of referring would only be momentary, considering that the act of referral
by a conscientious objector is the very action being contested as violative of
religious freedom, it behooves the respondents to demonstrate that no other
means can be undertaken by the State to achieve its objective without
violating the rights of the conscientious objector. The health concerns of
women may still be addressed by other practitioners who may perform

reproductive health-related procedures with open willingness and motivation.

Suffice it to say, a person who is forced to perform an act in utter reluctance
deserves the protection of the Court as the last vanguard of constitutional
freedoms.
At any rate, there are other secular steps already taken by the Legislature to
ensure that the right to health is protected. Considering other legislations as
they stand now, R.A . No. 4 729 or the Contraceptive Act, R.A. No. 6365 or
"The Population Act of the Philippines" and R.A. No. 9710, otherwise known
as "The Magna Carta of Women," amply cater to the needs of women in
relation to health services and programs. The pertinent provision of Magna
Carta on comprehensive health services and programs for women, in fact,
reads:
Section 17. Women's Right to Health. - (a) Comprehensive Health Services.
- The State shall, at all times, provide for a comprehensive, culture-sensitive,
and gender-responsive health services and programs covering all stages of
a woman's life cycle and which addresses the major causes of women's
mortality and morbidity: Provided, That in the provision for comprehensive
health services, due respect shall be accorded to women's religious
convictions, the rights of the spouses to found a family in accordance with
their religious convictions, and the demands of responsible parenthood, and
the right of women to protection from hazardous drugs, devices,
interventions, and substances.
Access to the following services shall be ensured:
(1) Maternal care to include pre- and post-natal services to address
pregnancy and infant health and nutrition;
(2) Promotion of breastfeeding;
(3) Responsible, ethical, legal, safe, and effective methods of family
planning;

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(4) Family and State collaboration in youth sexuality education and health
services without prejudice to the primary right and duty of parents to educate
their children;
(5) Prevention and management of reproductive tract infections, including
sexually transmitted diseases, HIV, and AIDS;
(6) Prevention and management of reproductive tract cancers like breast and
cervical cancers, and other gynecological conditions and disorders;
(7) Prevention of abortion and management of pregnancy-related
complications;
(8) In cases of violence against women and children, women and children
victims and survivors shall be provided with comprehensive health services
that include psychosocial, therapeutic, medical, and legal interventions and
assistance towards healing, recovery, and empowerment;
(9) Prevention and management of infertility and sexual dysfunction pursuant
to ethical norms and medical standards;
(10) Care of the elderly women beyond their child-bearing years; and
(11) Management, treatment, and intervention of mental health problems of
women and girls. In addition, healthy lifestyle activities are encouraged and
promoted through programs and projects as strategies in the prevention of
diseases.
(b) Comprehensive Health Information and Education. - The State shall
provide women in all sectors with appropriate, timely, complete, and accurate
information and education on all the above-stated aspects of women's health
in government education and training programs, with due regard to the
following:

(1) The natural and primary right and duty of parents in the rearing of the
youth and the development of moral character and the right of children to be

brought up in an atmosphere of morality and rectitude for the enrichment and

strengthening of character;
(2) The formation of a person's sexuality that affirms human dignity; and
(3) Ethical, legal, safe, and effective family planning methods including
fertility awareness.
As an afterthought, Asst. Solicitor General Hilbay eventually replied that the
compelling state interest was "Fifteen maternal deaths per day, hundreds of
thousands of unintended pregnancies, lives changed, x x x."235 He,
however, failed to substantiate this point by concrete facts and figures from
reputable sources.
The undisputed fact, however, is that the World Health Organization reported
that the Filipino maternal mortality rate dropped to 48 percent from 1990 to
2008, 236 although there was still no RH Law at that time. Despite such
revelation, the proponents still insist that such number of maternal deaths
constitute a compelling state interest.
Granting that there are still deficiencies and flaws in the delivery of social
healthcare programs for Filipino women, they could not be solved by a
measure that puts an unwarrantable stranglehold on religious beliefs in
exchange for blind conformity.
Exception: Life Threatening Cases
All this notwithstanding, the Court properly recognizes a valid exception set
forth in the law. While generally healthcare service providers cannot be
forced to render reproductive health care procedures if doing it would
contravene their religious beliefs, an exception must be made in lifethreatening cases that require the performance of emergency procedures. In
these situations, the right to life of the mother should be given preference,
considering that a referral by a medical practitioner would amount to a denial
of service, resulting to unnecessarily placing the life of a mother in grave
danger. Thus, during the oral arguments, Atty. Liban, representing CFC,

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manifested: "the forced referral clause that we are objecting on grounds of
violation of freedom of religion does not contemplate an emergency."237
In a conflict situation between the life of the mother and the life of a child, the
doctor is morally obliged always to try to save both lives. If, however, it is
impossible, the resulting death to one should not be deliberate. Atty. Noche
explained:
Principle of Double-Effect. - May we please remind the principal author of the
RH Bill in the House of Representatives of the principle of double-effect
wherein intentional harm on the life of either the mother of the child is never
justified to bring about a "good" effect. In a conflict situation between the life
of the child and the life of the mother, the doctor is morally obliged always to
try to save both lives. However, he can act in favor of one (not necessarily
the mother) when it is medically impossible to save both, provided that no
direct harm is intended to the other. If the above principles are observed, the
loss of the child's life or the mother's life is not intentional and, therefore,
unavoidable. Hence, the doctor would not be guilty of abortion or murder.
The mother is never pitted against the child because both their lives are
equally valuable.238

seminar, whether they be natural or artificial. As correctly noted by the OSG,

those who receive any information during their attendance in the required
seminars are not compelled to accept the information given to them, are
completely free to reject the information they find unacceptable, and retain
the freedom to decide on matters of family life without the intervention of the
State.
4-The Family and the Right to Privacy
Petitioner CFC assails the RH Law because Section 23(a) (2) (i) thereof
violates the provisions of the Constitution by intruding into marital privacy
and autonomy. It argues that it cultivates disunity and fosters animosity in the
family rather than promote its solidarity and total development.240
The Court cannot but agree.
The 1987 Constitution is replete with provisions strengthening the family as it
is the basic social institution. In fact, one article, Article XV, is devoted
entirely to the family.
ARTICLE XV

Accordingly, if it is necessary to save the life of a mother, procedures

endangering the life of the child may be resorted to even if is against the
religious sentiments of the medical practitioner. As quoted above, whatever
burden imposed upon a medical practitioner in this case would have been
more than justified considering the life he would be able to save.

THE FAMILY

Family Planning Seminars

Section 2. Marriage, as an inviolable social institution, is the foundation of

the family and shall be protected by the State.

Anent the requirement imposed under Section 15239 as a condition for the
issuance of a marriage license, the Court finds the same to be a reasonable
exercise of police power by the government. A cursory reading of the
assailed provision bares that the religious freedom of the petitioners is not at
all violated. All the law requires is for would-be spouses to attend a seminar
on parenthood, family planning breastfeeding and infant nutrition. It does not
even mandate the type of family planning methods to be included in the

Section 1. The State recognizes the Filipino family as the foundation of the
nation. Accordingly, it shall strengthen its solidarity and actively promote its
total development.

Section 3. The State shall defend:

The right of spouses to found a family in accordance with their religious
convictions and the demands of responsible parenthood;

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The right of children to assistance, including proper care and nutrition, and
special protection from all forms of neglect, abuse, cruelty, exploitation and
other conditions prejudicial to their development;

shared by both spouses. In the same Section 3, their right "to participate in
the planning and implementation of policies and programs that affect them "
is equally recognized.

The right of the family to a family living wage and income; and

The RH Law cannot be allowed to infringe upon this mutual decision-making.

By giving absolute authority to the spouse who would undergo a procedure,
and barring the other spouse from participating in the decision would drive a
wedge between the husband and wife, possibly result in bitter animosity, and
endanger the marriage and the family, all for the sake of reducing the
population. This would be a marked departure from the policy of the State to
protect marriage as an inviolable social institution.241

The right of families or family assoc1at1ons to participate in the planning and

implementation of policies and programs that affect them.
In this case, the RH Law, in its not-so-hidden desire to control population
growth, contains provisions which tend to wreck the family as a solid social
institution. It bars the husband and/or the father from participating in the
decision making process regarding their common future progeny. It likewise
deprives the parents of their authority over their minor daughter simply
because she is already a parent or had suffered a miscarriage.
The Family and Spousal Consent
Section 23(a) (2) (i) of the RH Law states:
The following acts are prohibited:
(a) Any health care service provider, whether public or private, who shall: ...
(2) refuse to perform legal and medically-safe reproductive health
procedures on any person of legal age on the ground of lack of consent or
authorization of the following persons in the following instances:
(i) Spousal consent in case of married persons: provided, That in case of
disagreement, the decision of the one undergoing the procedures shall
prevail. [Emphasis supplied]
The above provision refers to reproductive health procedures like tubal
litigation and vasectomy which, by their very nature, should require mutual
consent and decision between the husband and the wife as they affect
issues intimately related to the founding of a family. Section 3, Art. XV of the
Constitution espouses that the State shall defend the "right of the spouses to
found a family." One person cannot found a family. The right, therefore, is

Decision-making involving a reproductive health procedure is a private

matter which belongs to the couple, not just one of them. Any decision they
would reach would affect their future as a family because the size of the
family or the number of their children significantly matters. The decision
whether or not to undergo the procedure belongs exclusively to, and shared
by, both spouses as one cohesive unit as they chart their own destiny. It is a
constitutionally guaranteed private right. Unless it prejudices the State, which
has not shown any compelling interest, the State should see to it that they
chart their destiny together as one family.
As highlighted by Justice Leonardo-De Castro, Section 19( c) of R.A. No.
9710, otherwise known as the "Magna Carta for Women," provides that
women shall have equal rights in all matters relating to marriage and family
relations, including the joint decision on the number and spacing of their
children. Indeed, responsible parenthood, as Section 3(v) of the RH Law
states, is a shared responsibility between parents. Section 23(a)(2)(i) of the
RH Law should not be allowed to betray the constitutional mandate to protect
and strengthen the family by giving to only one spouse the absolute authority
to decide whether to undergo reproductive health procedure.242

The right to chart their own destiny together falls within the protected zone of
marital privacy and such state intervention would encroach into the zones of

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spousal privacy guaranteed by the Constitution. In our jurisdiction, the right
to privacy was first recognized in Marje v. Mutuc,243 where the Court,
speaking through Chief Justice Fernando, held that "the right to privacy as
such is accorded recognition independently of its identification with liberty; in
itself, it is fully deserving of constitutional protection."244 Marje adopted the
ruling of the US Supreme Court in Griswold v. Connecticut,245 where Justice
William O. Douglas wrote:
We deal with a right of privacy older than the Bill of Rights -older than our
political parties, older than our school system. Marriage is a coming together
for better or for worse, hopefully enduring, and intimate to the degree of
being sacred. It is an association that promotes a way of life, not causes; a
harmony in living, not political faiths; a bilateral loyalty, not commercial or
social projects. Yet it is an association for as noble a purpose as any
involved in our prior decisions.
Ironically, Griswold invalidated a Connecticut statute which made the use of
contraceptives a criminal offense on the ground of its amounting to an
unconstitutional invasion of the right to privacy of married persons.
Nevertheless, it recognized the zone of privacy rightfully enjoyed by couples.
Justice Douglas in Grisworld wrote that "specific guarantees in the Bill of
Rights have penumbras, formed by emanations from those guarantees that
help give them life and substance. Various guarantees create zones of
privacy."246
At any rate, in case of conflict between the couple, the courts will decide.
The Family and Parental Consent
Equally deplorable is the debarment of parental consent in cases where the
minor, who will be undergoing a procedure, is already a parent or has had a
miscarriage. Section 7 of the RH law provides:

SEC. 7. Access to Family Planning. x x x.

No person shall be denied information and access to family planning

services, whether natural or artificial: Provided, That minors will not be
allowed access to modern methods of family planning without written
consent from their parents or guardian/s except when the minor is already a
parent or has had a miscarriage.
There can be no other interpretation of this provision except that when a
minor is already a parent or has had a miscarriage, the parents are excluded
from the decision making process of the minor with regard to family planning.
Even if she is not yet emancipated, the parental authority is already cut off
just because there is a need to tame population growth.
It is precisely in such situations when a minor parent needs the comfort,
care, advice, and guidance of her own parents. The State cannot replace her
natural mother and father when it comes to providing her needs and comfort.
To say that their consent is no longer relevant is clearly anti-family. It does
not promote unity in the family. It is an affront to the constitutional mandate to
protect and strengthen the family as an inviolable social institution.
More alarmingly, it disregards and disobeys the constitutional mandate that
"the natural and primary right and duty of parents in the rearing of the youth
for civic efficiency and the development of moral character shall receive the
support of the Government."247 In this regard, Commissioner Bernas wrote:
The 1987 provision has added the adjective "primary" to modify the right of
parents. It imports the assertion that the right of parents is superior to that of
the State.248 [Emphases supplied]
To insist on a rule that interferes with the right of parents to exercise parental
control over their minor-child or the right of the spouses to mutually decide
on matters which very well affect the very purpose of marriage, that is, the
establishment of conjugal and family life, would result in the violation of one's
privacy with respect to his family. It would be dismissive of the unique and
strongly-held Filipino tradition of maintaining close family ties and violative of
the recognition that the State affords couples entering into the special

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contract of marriage to as one unit in forming the foundation of the family
and society.

the appropriate medical care urgently needed to preserve the primordial

right, that is, the right to life.

The State cannot, without a compelling state interest, take over the role of
parents in the care and custody of a minor child, whether or not the latter is
already a parent or has had a miscarriage. Only a compelling state interest
can justify a state substitution of their parental authority.

In this connection, the second sentence of Section 23(a)(2)(ii)249 should be

struck down. By effectively limiting the requirement of parental consent to
"only in elective surgical procedures," it denies the parents their right of
parental authority in cases where what is involved are "non-surgical
procedures." Save for the two exceptions discussed above, and in the case
of an abused child as provided in the first sentence of Section 23(a)(2)(ii),
the parents should not be deprived of their constitutional right of parental
authority. To deny them of this right would be an affront to the constitutional
mandate to protect and strengthen the family.

First Exception: Access to Information

Whether with respect to the minor referred to under the exception provided in
the second paragraph of Section 7 or with respect to the consenting spouse
under Section 23(a)(2)(i), a distinction must be made. There must be a
differentiation between access to information about family planning services,
on one hand, and access to the reproductive health procedures and modern
family planning methods themselves, on the other. Insofar as access to
information is concerned, the Court finds no constitutional objection to the
acquisition of information by the minor referred to under the exception in the
second paragraph of Section 7 that would enable her to take proper care of
her own body and that of her unborn child. After all, Section 12, Article II of
the Constitution mandates the State to protect both the life of the mother as
that of the unborn child. Considering that information to enable a person to
make informed decisions is essential in the protection and maintenance of
ones' health, access to such information with respect to reproductive health
must be allowed. In this situation, the fear that parents might be deprived of
their parental control is unfounded because they are not prohibited to
exercise parental guidance and control over their minor child and assist her
in deciding whether to accept or reject the information received.
Second Exception: Life Threatening Cases
As in the case of the conscientious objector, an exception must be made in
life-threatening cases that require the performance of emergency
procedures. In such cases, the life of the minor who has already suffered a
miscarriage and that of the spouse should not be put at grave risk simply for
lack of consent. It should be emphasized that no person should be denied

5 - Academic Freedom
It is asserted that Section 14 of the RH Law, in relation to Section 24 thereof,
mandating the teaching of Age-and Development-Appropriate Reproductive
Health Education under threat of fine and/or imprisonment violates the
principle of academic freedom . According to the petitioners, these provisions
effectively force educational institutions to teach reproductive health
education even if they believe that the same is not suitable to be taught to
their students.250 Citing various studies conducted in the United States and
statistical data gathered in the country, the petitioners aver that the
prevalence of contraceptives has led to an increase of out-of-wedlock births;
divorce and breakdown of families; the acceptance of abortion and
euthanasia; the "feminization of poverty"; the aging of society; and promotion
of promiscuity among the youth.251
At this point, suffice it to state that any attack on the validity of Section 14 of
the RH Law is premature because the Department of Education, Culture and
Sports has yet to formulate a curriculum on age-appropriate reproductive
health education. One can only speculate on the content, manner and
medium of instruction that will be used to educate the adolescents and
whether they will contradict the religious beliefs of the petitioners and
validate their apprehensions. Thus, considering the premature nature of this
particular issue, the Court declines to rule on its constitutionality or validity.

178
At any rate, Section 12, Article II of the 1987 Constitution provides that the
natural and primary right and duty of parents in the rearing of the youth for
civic efficiency and development of moral character shall receive the support
of the Government. Like the 1973 Constitution and the 1935 Constitution, the
1987 Constitution affirms the State recognition of the invaluable role of
parents in preparing the youth to become productive members of society.
Notably, it places more importance on the role of parents in the development
of their children by recognizing that said role shall be "primary," that is, that
the right of parents in upbringing the youth is superior to that of the State.252
It is also the inherent right of the State to act as parens patriae to aid parents
in the moral development of the youth. Indeed, the Constitution makes
mention of the importance of developing the youth and their important role in
nation building.253 Considering that Section 14 provides not only for the
age-appropriate-reproductive health education, but also for values formation;
the development of knowledge and skills in self-protection against
discrimination; sexual abuse and violence against women and children and
other forms of gender based violence and teen pregnancy; physical, social
and emotional changes in adolescents; women's rights and children's rights;
responsible teenage behavior; gender and development; and responsible
parenthood, and that Rule 10, Section 11.01 of the RH-IRR and Section 4(t)
of the RH Law itself provides for the teaching of responsible teenage
behavior, gender sensitivity and physical and emotional changes among
adolescents - the Court finds that the legal mandate provided under the
assailed provision supplements, rather than supplants, the rights and duties
of the parents in the moral development of their children.
Furthermore, as Section 14 also mandates that the mandatory reproductive
health education program shall be developed in conjunction with parentteacher-community associations, school officials and other interest groups, it
could very well be said that it will be in line with the religious beliefs of the
petitioners. By imposing such a condition, it becomes apparent that the
petitioners' contention that Section 14 violates Article XV, Section 3(1) of the
Constitution is without merit.254

While the Court notes the possibility that educators might raise their
objection to their participation in the reproductive health education program
provided under Section 14 of the RH Law on the ground that the same
violates their religious beliefs, the Court reserves its judgment should an
actual case be filed before it.
6 - Due Process
The petitioners contend that the RH Law suffers from vagueness and, thus
violates the due process clause of the Constitution. According to them,
Section 23 (a)(l) mentions a "private health service provider" among those
who may be held punishable but does not define who is a "private health
care service provider." They argue that confusion further results since
Section 7 only makes reference to a "private health care institution."
The petitioners also point out that Section 7 of the assailed legislation
exempts hospitals operated by religious groups from rendering reproductive
health service and modern family planning methods. It is unclear, however, if
these institutions are also exempt from giving reproductive health information
under Section 23(a)(l), or from rendering reproductive health procedures
under Section 23(a)(2).
Finally, it is averred that the RH Law punishes the withholding, restricting and
providing of incorrect information, but at the same time fails to define
"incorrect information."
The arguments fail to persuade.
A statute or act suffers from the defect of vagueness when it lacks
comprehensible standards that men of common intelligence must
necessarily guess its meaning and differ as to its application. It is repugnant
to the Constitution in two respects: (1) it violates due process for failure to
accord persons, especially the parties targeted by it, fair notice of the
conduct to avoid; and (2) it leaves law enforcers unbridled discretion in
carrying out its provisions and becomes an arbitrary flexing of the
Government muscle.255 Moreover, in determining whether the words used

179
in a statute are vague, words must not only be taken in accordance with their
plain meaning alone, but also in relation to other parts of the statute. It is a
rule that every part of the statute must be interpreted with reference to the
context, that is, every part of it must be construed together with the other
parts and kept subservient to the general intent of the whole enactment.256
As correctly noted by the OSG, in determining the definition of "private health
care service provider," reference must be made to Section 4(n) of the RH
Law which defines a "public health service provider," viz:
(n) Public health care service provider refers to: (1) public health care
institution, which is duly licensed and accredited and devoted primarily to the
maintenance and operation of facilities for health promotion, disease
prevention, diagnosis, treatment and care of individuals suffering from
illness, disease, injury, disability or deformity, or in need of obstetrical or
other medical and nursing care; (2) public health care professional, who is a
doctor of medicine, a nurse or a midvvife; (3) public health worker engaged
in the delivery of health care services; or (4) barangay health worker who
has undergone training programs under any accredited government and
NGO and who voluntarily renders primarily health care services in the
community after having been accredited to function as such by the local
health board in accordance with the guidelines promulgated by the
Department of Health (DOH) .
Further, the use of the term "private health care institution" in Section 7 of the
law, instead of "private health care service provider," should not be a cause
of confusion for the obvious reason that they are used synonymously.
The Court need not belabor the issue of whether the right to be exempt from
being obligated to render reproductive health service and modem family
planning methods, includes exemption from being obligated to give
reproductive health information and to render reproductive health
procedures. Clearly, subject to the qualifications and exemptions earlier
discussed, the right to be exempt from being obligated to render reproductive
health service and modem family planning methods, necessarily includes
exemption from being obligated to give reproductive health information and

to render reproductive health procedures. The terms "service" and "methods"

are broad enough to include the providing of information and the rendering of
medical procedures.
The same can be said with respect to the contention that the RH Law
punishes health care service providers who intentionally withhold, restrict
and provide incorrect information regarding reproductive health programs
and services. For ready reference, the assailed provision is hereby quoted
as follows:
SEC. 23. Prohibited Acts. - The following acts are prohibited:
(a) Any health care service provider, whether public or private, who shall:
(1) Knowingly withhold information or restrict the dissemination thereof, and/
or intentionally provide incorrect information regarding programs and
services on reproductive health including the right to informed choice and
access to a full range of legal, medically-safe, non-abortifacient and effective
family planning methods;
From its plain meaning, the word "incorrect" here denotes failing to agree
with a copy or model or with established rules; inaccurate, faulty; failing to
agree with the requirements of duty, morality or propriety; and failing to
coincide with the truth. 257 On the other hand, the word "knowingly" means
with awareness or deliberateness that is intentional.258 Used together in
relation to Section 23(a)(l), they connote a sense of malice and ill motive to
mislead or misrepresent the public as to the nature and effect of programs
and services on reproductive health. Public health and safety demand that
health care service providers give their honest and correct medical
information in accordance with what is acceptable in medical practice. While
health care service providers are not barred from expressing their own
personal opinions regarding the programs and services on reproductive
health, their right must be tempered with the need to provide public health
and safety. The public deserves no less.
7-Egual Protection

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The petitioners also claim that the RH Law violates the equal protection
clause under the Constitution as it discriminates against the poor because it
makes them the primary target of the government program that promotes
contraceptive use . They argue that, rather than promoting reproductive
health among the poor, the RH Law introduces contraceptives that would
effectively reduce the number of the poor. Their bases are the various
provisions in the RH Law dealing with the poor, especially those mentioned
in the guiding principles259 and definition of terms260 of the law.

may not draw distinctions between individuals solely on differences that are
irrelevant to a legitimate governmental objective."

They add that the exclusion of private educational institutions from the
mandatory reproductive health education program imposed by the RH Law
renders it unconstitutional.

It, however, does not require the universal application of the laws to all
persons or things without distinction. What it simply requires is equality
among equals as determined according to a valid classification. Indeed, the
equal protection clause permits classification. Such classification, however,
to be valid must pass the test of reasonableness. The test has four
requisites: (1) The classification rests on substantial distinctions; (2) It is
germane to the purpose of the law; (3) It is not limited to existing conditions
only; and (4) It applies equally to all members of the same class. "Superficial
differences do not make for a valid classification."

In Biraogo v. Philippine Truth Commission,261 the Court had the occasion to

expound on the concept of equal protection. Thus:
One of the basic principles on which this government was founded is that of
the equality of right which is embodied in Section 1, Article III of the 1987
Constitution. The equal protection of the laws is embraced in the concept of
due process, as every unfair discrimination offends the requirements of
justice and fair play. It has been embodied in a separate clause, however, to
provide for a more specific guaranty against any form of undue favoritism or
hostility from the government. Arbitrariness in general may be challenged on
the basis of the due process clause. But if the particular act assailed
partakes of an unwarranted partiality or prejudice, the sharper weapon to cut
it down is the equal protection clause.
"According to a long line of decisions, equal protection simply requires that
all persons or things similarly situated should be treated alike, both as to
rights conferred and responsibilities imposed." It "requires public bodies and
inst itutions to treat similarly situated individuals in a similar manner." "The
purpose of the equal protection clause is to secure every person within a
state's jurisdiction against intentional and arbitrary discrimination, whether
occasioned by the express terms of a statue or by its improper execution
through the state's duly constituted authorities." "In other words, the concept
of equal justice under the law requires the state to govern impartially, and it

The equal protection clause is aimed at all official state actions, not just
those of the legislature. Its inhibitions cover all the departments of the
government including the political and executive departments, and extend to
all actions of a state denying equal protection of the laws, through whatever
agency or whatever guise is taken.

For a classification to meet the requirements of constitutionality, it must

include or embrace all persons who naturally belong to the class. "The
classification will be regarded as invalid if all the members of the class are
not similarly treated, both as to rights conferred and obligations imposed. It is
not necessary that the classification be made with absolute symmetry, in the
sense that the members of the class should possess the same
characteristics in equal degree. Substantial similarity will suffice; and as long
as this is achieved, all those covered by the classification are to be treated
equally. The mere fact that an individual belonging to a class differs from the
other members, as long as that class is substantially distinguishable from all
others, does not justify the non-application of the law to him."

The classification must not be based on existing circumstances only, or so

constituted as to preclude addition to the number included in the class. It
must be of such a nature as to embrace all those who may thereafter be in

181
similar circumstances and conditions. It must not leave out or "underinclude"
those that should otherwise fall into a certain classification. [Emphases
supplied; citations excluded]
To provide that the poor are to be given priority in the government's
reproductive health care program is not a violation of the equal protection
clause. In fact, it is pursuant to Section 11, Article XIII of the Constitution
which recognizes the distinct necessity to address the needs of the
underprivileged by providing that they be given priority in addressing the
health development of the people. Thus:
Section 11. The State shall adopt an integrated and comprehensive
approach to health development which shall endeavor to make essential
goods, health and other social services available to all the people at
affordable cost. There shall be priority for the needs of the underprivileged,
sick, elderly, disabled, women, and children. The State shall endeavor to
provide free medical care to paupers.
It should be noted that Section 7 of the RH Law prioritizes poor and
marginalized couples who are suffering from fertility issues and desire to
have children. There is, therefore, no merit to the contention that the RH Law
only seeks to target the poor to reduce their number. While the RH Law
admits the use of contraceptives, it does not, as elucidated above, sanction
abortion. As Section 3(1) explains, the "promotion and/or stabilization of the
population growth rate is incidental to the advancement of reproductive
health."
Moreover, the RH Law does not prescribe the number of children a couple
may have and does not impose conditions upon couples who intend to have
children. While the petitioners surmise that the assailed law seeks to charge
couples with the duty to have children only if they would raise them in a truly
humane way, a deeper look into its provisions shows that what the law seeks
to do is to simply provide priority to the poor in the implementation of
government programs to promote basic reproductive health care.

With respect to the exclusion of private educational institutions from the

mandatory reproductive health education program under Section 14, suffice
it to state that the mere fact that the children of those who are less fortunate
attend public educational institutions does not amount to substantial
distinction sufficient to annul the assailed provision. On the other hand,
substantial distinction rests between public educational institutions and
private educational institutions, particularly because there is a need to
recognize the academic freedom of private educational institutions especially
with respect to religious instruction and to consider their sensitivity towards
the teaching of reproductive health education.
8-Involuntary Servitude
The petitioners also aver that the RH Law is constitutionally infirm as it
violates the constitutional prohibition against involuntary servitude. They
posit that Section 17 of the assailed legislation requiring private and nongovernment health care service providers to render forty-eight (48) hours of
pro bono reproductive health services, actually amounts to involuntary
servitude because it requires medical practitioners to perform acts against
their will.262
The OSG counters that the rendition of pro bono services envisioned in
Section 17 can hardly be considered as forced labor analogous to slavery, as
reproductive health care service providers have the discretion as to the
manner and time of giving pro bono services. Moreover, the OSG points out
that the imposition is within the powers of the government, the accreditation
of medical practitioners with PhilHealth being a privilege and not a right.
The point of the OSG is well-taken.

It should first be mentioned that the practice of medicine is undeniably

imbued with public interest that it is both a power and a duty of the State to
control and regulate it in order to protect and promote the public welfare. Like
the legal profession, the practice of medicine is not a right but a privileged

182
burdened with conditions as it directly involves the very lives of the people. A
fortiori, this power includes the power of Congress263 to prescribe the
qualifications for the practice of professions or trades which affect the public
welfare, the public health, the public morals, and the public safety; and to
regulate or control such professions or trades, even to the point of revoking
such right altogether.264

The Court finds nothing wrong with the delegation. The FDA does not only
have the power but also the competency to evaluate, register and cover
health services and methods. It is the only government entity empowered to
render such services and highly proficient to do so. It should be understood
that health services and methods fall under the gamut of terms that are
associated with what is ordinarily understood as "health products."

Moreover, as some petitioners put it, the notion of involuntary servitude

connotes the presence of force, threats, intimidation or other similar means
of coercion and compulsion.265 A reading of the assailed provision,
however, reveals that it only encourages private and non- government
reproductive healthcare service providers to render pro bono service. Other
than non-accreditation with PhilHealth, no penalty is imposed should they
choose to do otherwise. Private and non-government reproductive
healthcare service providers also enjoy the liberty to choose which kind of
health service they wish to provide, when, where and how to provide it or
whether to provide it all. Clearly, therefore, no compulsion, force or threat is
made upon them to render pro bono service against their will. While the
rendering of such service was made a prerequisite to accreditation with
PhilHealth, the Court does not consider the same to be an unreasonable
burden, but rather, a necessary incentive imposed by Congress in the
furtherance of a perceived legitimate state interest.

In this connection, Section 4 of R.A. No. 3 720, as amended by R.A. No.

9711 reads:

Consistent with what the Court had earlier discussed, however, it should be
emphasized that conscientious objectors are exempt from this provision as
long as their religious beliefs and convictions do not allow them to render
reproductive health service, pro bona or otherwise.

"(d) To establish analytical data to serve as basis for the preparation of

health products standards, and to recommend standards of identity, purity,
safety, efficacy, quality and fill of container;

9-Delegation of Authority to the FDA

The petitioners likewise question the delegation by Congress to the FDA of

the power to determine whether or not a supply or product is to be included
in the Essential Drugs List (EDL).266

SEC. 4. To carry out the provisions of this Act, there is hereby created an
office to be called the Food and Drug Administration (FDA) in the
Department of Health (DOH). Said Administration shall be under the Office of
the Secretary and shall have the following functions, powers and duties:
"(a) To administer the effective implementation of this Act and of the rules
and regulations issued pursuant to the same;
"(b) To assume primary jurisdiction in the collection of samples of health
products;
"(c) To analyze and inspect health products in connection with the
implementation of this Act;

"(e) To issue certificates of compliance with technical requirements to serve

as basis for the issuance of appropriate authorization and spot-check for
compliance with regulations regarding operation of manufacturers, importers,
exporters, distributors, wholesalers, drug outlets, and other establishments
and facilities of health products, as determined by the FDA;

"x x x

183
"(h) To conduct appropriate tests on all applicable health products prior to the
issuance of appropriate authorizations to ensure safety, efficacy, purity, and
quality;
"(i) To require all manufacturers, traders, distributors, importers, exporters,
wholesalers, retailers, consumers, and non-consumer users of health
products to report to the FDA any incident that reasonably indicates that said
product has caused or contributed to the death, serious illness or serious
injury to a consumer, a patient, or any person;
"(j) To issue cease and desist orders motu propio or upon verified complaint
for health products, whether or not registered with the FDA Provided, That
for registered health products, the cease and desist order is valid for thirty
(30) days and may be extended for sixty ( 60) days only after due process
has been observed;

standards. The philosophy behind the permitted delegation was explained in

Echagaray v. Secretary of Justice,267 as follows:
The reason is the increasing complexity of the task of the government and
the growing inability of the legislature to cope directly with the many
problems demanding its attention. The growth of society has ramified its
activities and created peculiar and sophisticated problems that the legislature
cannot be expected reasonably to comprehend. Specialization even in
legislation has become necessary. To many of the problems attendant upon
present day undertakings, the legislature may not have the competence, let
alone the interest and the time, to provide the required direct and efficacious,
not to say specific solutions.
10- Autonomy of Local Governments and the Autonomous Region
of Muslim Mindanao (ARMM)

"(k) After due process, to order the ban, recall, and/or withdrawal of any
health product found to have caused death, serious illness or serious injury
to a consumer or patient, or is found to be imminently injurious, unsafe,
dangerous, or grossly deceptive, and to require all concerned to implement
the risk management plan which is a requirement for the issuance of the
appropriate authorization;

As for the autonomy of local governments, the petitioners claim that the RH
Law infringes upon the powers devolved to local government units (LGUs)
under Section 17 of the Local Government Code. Said Section 17 vested
upon the LGUs the duties and functions pertaining to the delivery of basic
services and facilities, as follows:

x x x.

SECTION 17. Basic Services and Facilities.

As can be gleaned from the above, the functions, powers and duties of the
FDA are specific to enable the agency to carry out the mandates of the law.
Being the country's premiere and sole agency that ensures the safety of food
and medicines available to the public, the FDA was equipped with the
necessary powers and functions to make it effective. Pursuant to the
principle of necessary implication, the mandate by Congress to the FDA to
ensure public health and safety by permitting only food and medicines that
are safe includes "service" and "methods." From the declared policy of the
RH Law, it is clear that Congress intended that the public be given only those
medicines that are proven medically safe, legal, non-abortifacient, and
effective in accordance with scientific and evidence-based medical research

(a) Local government units shall endeavor to be self-reliant and shall

continue exercising the powers and discharging the duties and functions
currently vested upon them. They shall also discharge the functions and
responsibilities of national agencies and offices devolved to them pursuant to
this Code. Local government units shall likewise exercise such other powers
and discharge such other functions and responsibilities as are necessary,
appropriate, or incidental to efficient and effective provision of the basic
services and facilities enumerated herein.
(b) Such basic services and facilities include, but are not limited to, x x x.

184
While the aforementioned provision charges the LGUs to take on the
functions and responsibilities that have already been devolved upon them
from the national agencies on the aspect of providing for basic services and
facilities in their respective jurisdictions, paragraph (c) of the same provision
provides a categorical exception of cases involving nationally-funded
projects, facilities, programs and services.268 Thus:

Moreover, from the use of the word "endeavor," the LG Us are merely
encouraged to provide these services. There is nothing in the wording of the
law which can be construed as making the availability of these services
mandatory for the LGUs. For said reason, it cannot be said that the RH Law
amounts to an undue encroachment by the national government upon the
autonomy enjoyed by the local governments.

(c) Notwithstanding the provisions of subsection (b) hereof, public works and
infrastructure projects and other facilities, programs and services funded by
the National Government under the annual General Appropriations Act, other
special laws, pertinent executive orders, and those wholly or partially funded
from foreign sources, are not covered under this Section, except in those
cases where the local government unit concerned is duly designated as the
implementing agency for such projects, facilities, programs and services.
[Emphases supplied]

The ARMM

The essence of this express reservation of power by the national

government is that, unless an LGU is particularly designated as the
implementing agency, it has no power over a program for which funding has
been provided by the national government under the annual general
appropriations act, even if the program involves the delivery of basic services
within the jurisdiction of the LGU.269 A complete relinquishment of central
government powers on the matter of providing basic facilities and services
cannot be implied as the Local Government Code itself weighs against it.270
In this case, a reading of the RH Law clearly shows that whether it pertains
to the establishment of health care facilities,271 the hiring of skilled health
professionals,272 or the training of barangay health workers,273 it will be the
national government that will provide for the funding of its implementation.
Local autonomy is not absolute. The national government still has the say
when it comes to national priority programs which the local government is
called upon to implement like the RH Law.

The fact that the RH Law does not intrude in the autonomy of local
governments can be equally applied to the ARMM. The RH Law does not
infringe upon its autonomy. Moreover, Article III, Sections 6, 10 and 11 of
R.A. No. 9054, or the organic act of the ARMM, alluded to by petitioner Tillah
to justify the exemption of the operation of the RH Law in the autonomous
region, refer to the policy statements for the guidance of the regional
government. These provisions relied upon by the petitioners simply delineate
the powers that may be exercised by the regional government, which can, in
no manner, be characterized as an abdication by the State of its power to
enact legislation that would benefit the general welfare. After all, despite the
veritable autonomy granted the ARMM, the Constitution and the supporting
jurisprudence, as they now stand, reject the notion of imperium et imperio in
the relationship between the national and the regional governments.274
Except for the express and implied limitations imposed on it by the
Constitution, Congress cannot be restricted to exercise its inherent and
plenary power to legislate on all subjects which extends to all matters of
general concern or common interest.275
11 - Natural Law
With respect to the argument that the RH Law violates natural law,276
suffice it to say that the Court does not duly recognize it as a legal basis for
upholding or invalidating a law. Our only guidepost is the Constitution. While
every law enacted by man emanated from what is perceived as natural law,
the Court is not obliged to see if a statute, executive issuance or ordinance is
in conformity to it. To begin with, it is not enacted by an acceptable legitimate
body. Moreover, natural laws are mere thoughts and notions on inherent

185
rights espoused by theorists, philosophers and theologists. The jurists of the
philosophical school are interested in the law as an abstraction, rather than
in the actual law of the past or present.277 Unless, a natural right has been
transformed into a written law, it cannot serve as a basis to strike down a
law. In Republic v. Sandiganbayan,278 the very case cited by the petitioners,
it was explained that the Court is not duty-bound to examine every law or
action and whether it conforms with both the Constitution and natural law.
Rather, natural law is to be used sparingly only in the most peculiar of
circumstances involving rights inherent to man where no law is
applicable.279
At any rate, as earlier expounded, the RH Law does not sanction the taking
away of life. It does not allow abortion in any shape or form. It only seeks to
enhance the population control program of the government by providing
information and making non-abortifacient contraceptives more readily
available to the public, especially to the poor.
Facts and Fallacies
and the Wisdom of the Law
In general, the Court does not find the RH Law as unconstitutional insofar as
it seeks to provide access to medically-safe, non-abortifacient, effective,
legal, affordable, and quality reproductive healthcare services, methods,
devices, and supplies. As earlier pointed out, however, the religious freedom
of some sectors of society cannot be trampled upon in pursuit of what the
law hopes to achieve. After all, the Constitutional safeguard to religious
freedom is a recognition that man stands accountable to an authority higher
than the State.
In conformity with the principle of separation of Church and State, one
religious group cannot be allowed to impose its beliefs on the rest of the
society. Philippine modem society leaves enough room for diversity and
pluralism. As such, everyone should be tolerant and open-minded so that
peace and harmony may continue to reign as we exist alongside each other.

As healthful as the intention of the RH Law may be, the idea does not
escape the Court that what it seeks to address is the problem of rising
poverty and unemployment in the country. Let it be said that the cause of
these perennial issues is not the large population but the unequal distribution
of wealth. Even if population growth is controlled, poverty will remain as long
as the country's wealth remains in the hands of the very few.
At any rate, population control may not be beneficial for the country in the
long run. The European and Asian countries, which embarked on such a
program generations ago , are now burdened with ageing populations. The
number of their young workers is dwindling with adverse effects on their
economy. These young workers represent a significant human capital which
could have helped them invigorate, innovate and fuel their economy. These
countries are now trying to reverse their programs, but they are still
struggling. For one, Singapore, even with incentives, is failing.
And in this country, the economy is being propped up by remittances from
our Overseas Filipino Workers. This is because we have an ample supply of
young able-bodied workers. What would happen if the country would be
weighed down by an ageing population and the fewer younger generation
would not be able to support them? This would be the situation when our
total fertility rate would go down below the replacement level of two (2)
children per woman.280
Indeed, at the present, the country has a population problem, but the State
should not use coercive measures (like the penal provisions of the RH Law
against conscientious objectors) to solve it. Nonetheless, the policy of the
Court is non-interference in the wisdom of a law.
x x x. But this Court cannot go beyond what the legislature has laid down. Its
duty is to say what the law is as enacted by the lawmaking body. That is not
the same as saying what the law should be or what is the correct rule in a
given set of circumstances. It is not the province of the judiciary to look into
the wisdom of the law nor to question the policies adopted by the legislative
branch. Nor is it the business of this Tribunal to remedy every unjust situation
that may arise from the application of a particular law. It is for the legislature

186
to enact remedial legislation if that would be necessary in the premises. But
as always, with apt judicial caution and cold neutrality, the Court must carry
out the delicate function of interpreting the law, guided by the Constitution
and existing legislation and mindful of settled jurisprudence. The Court's
function is therefore limited, and accordingly, must confine itself to the
judicial task of saying what the law is, as enacted by the lawmaking body.281
Be that as it may, it bears reiterating that the RH Law is a mere compilation
and enhancement of the prior existing contraceptive and reproductive health
laws, but with coercive measures. Even if the Court decrees the RH Law as
entirely unconstitutional, there will still be the Population Act (R.A. No. 6365),
the Contraceptive Act (R.A. No. 4729) and the reproductive health for women
or The Magna Carta of Women (R.A. No. 9710), sans the coercive
provisions of the assailed legislation. All the same, the principle of "noabortion" and "non-coercion" in the adoption of any family planning method
should be maintained.
WHEREFORE, the petitions are PARTIALLY GRANTED. Accordingly, the
Court declares R.A. No. 10354 as NOT UNCONSTITUTIONAL except with
respect to the following provisions which are declared
UNCONSTITUTIONAL:
1) Section 7 and the corresponding provision in the RH-IRR insofar as they:
a) require private health facilities and non-maternity specialty hospitals and
hospitals owned and operated by a religious group to refer patients, not in an
emergency or life-threatening case, as defined under Republic Act No. 8344,
to another health facility which is conveniently accessible; and b) allow
minor-parents or minors who have suffered a miscarriage access to modem
methods of family planning without written consent from their parents or
guardian/s;
2) Section 23(a)(l) and the corresponding provision in the RH-IRR,
particularly Section 5 .24 thereof, insofar as they punish any healthcare
service provider who fails and or refuses to disseminate information
regarding programs and services on reproductive health regardless of his or
her religious beliefs

3) Section 23(a)(2)(i) and the corresponding provision in the RH-IRR insofar

as they allow a married individual, not in an emergency or life-threatening
case, as defined under Republic Act No. 8344, to undergo reproductive
health procedures without the consent of the spouse;
4) Section 23(a)(2)(ii) and the corresponding provision in the RH-IRR insofar
as they limit the requirement of parental consent only to elective surgical
procedures.
5) Section 23(a)(3) and the corresponding provision in the RH-IRR,
particularly Section 5.24 thereof, insofar as they punish any healthcare
service provider who fails and/or refuses to refer a patient not in an
emergency or life-threatening case, as defined under Republic Act No. 8344,
to another health care service provider within the same facility or one which
is conveniently accessible regardless of his or her religious beliefs;
6) Section 23(b) and the corresponding provision in the RH-IRR, particularly
Section 5 .24 thereof, insofar as they punish any public officer who refuses to
support reproductive health programs or shall do any act that hinders the full
implementation of a reproductive health program, regardless of his or her
religious beliefs;
7) Section 17 and the corresponding prov1s10n in the RH-IRR regarding the
rendering of pro bona reproductive health service in so far as they affect the
conscientious objector in securing PhilHealth accreditation; and
8) Section 3.0l(a) and Section 3.01 G) of the RH-IRR, which added the
qualifier "primarily" in defining abortifacients and contraceptives, as they are
ultra vires and, therefore, null and void for contravening Section 4(a) of the
RH Law and violating Section 12, Article II of the Constitution.

The Status Quo Ante Order issued by the Court on March 19, 2013 as
extended by its Order, dated July 16, 2013 , is hereby LIFTED, insofar as the
provisions of R.A. No. 10354 which have been herein declared as
constitutional.

187
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

188
EN BANC
G.R. No. L-14639

March 25, 1919

ZACARIAS VILLAVICENCIO, ET AL., petitioners,

vs.
JUSTO LUKBAN, ET AL., respondents.
Alfonso Mendoza for petitioners.
City Fiscal Diaz for respondents.

no opportunity to collect their belongings, and apparently were under the

impression that they were being taken to a police station for an investigation.
They had no knowledge that they were destined for a life in Mindanao. They
had not been asked if they wished to depart from that region and had neither
directly nor indirectly given their consent to the deportation. The involuntary
guests were received on board the steamers by a representative of the
Bureau of Labor and a detachment of Constabulary soldiers. The two
steamers with their unwilling passengers sailed for Davao during the night of
October 25.

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

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

Omitting much extraneous matter, of no moment to these proceedings, but

which might prove profitable reading for other departments of the
government, the facts are these: The Mayor of the city of Manila, Justo
Lukban, for the best of all reasons, to exterminate vice, ordered the
segregated district for women of ill repute, which had been permitted for a
number of years in the city of Manila, closed. Between October 16 and
October 25, 1918, the women were kept confined to their houses in the
district by the police. Presumably, during this period, the city authorities
quietly perfected arrangements with the Bureau of Labor for sending the
women to Davao, Mindanao, as laborers; with some government office for
the use of the coastguard cutters Corregidor and Negros, and with the
Constabulary for a guard of soldiers. At any rate, about midnight of October
25, the police, acting pursuant to orders from the chief of police, Anton
Hohmann and the Mayor of the city of Manila, Justo Lukban, descended
upon the houses, hustled some 170 inmates into patrol wagons, and placed
them aboard the steamers that awaited their arrival. The women were given

To turn back in our narrative, just about the time the Corregidor and
the Negros were putting in to Davao, the attorney for the relatives and
friends of a considerable number of the deportees presented an application
forhabeas corpus to a member of the Supreme Court. Subsequently, the
application, through stipulation of the parties, was made to include all of the
women who were sent away from Manila to Davao and, as the same
questions concerned them all, the application will be considered as including
them. The application set forth the salient facts, which need not be repeated,
and alleged that the women were illegally restrained of their liberty by Justo
Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the
city of Manila, and by certain unknown parties. The writ was made returnable
before the full court. The city fiscal appeared for the respondents, Lukban
and Hohmann, admitted certain facts relative to sequestration and
deportation, and prayed that the writ should not be granted because the
petitioners were not proper parties, because the action should have been
begun in the Court of First Instance for Davao, Department of Mindanao and

MALCOLM, J.:

189
Sulu, because the respondents did not have any of the women under their
custody or control, and because their jurisdiction did not extend beyond the
boundaries of the city of Manila. According to an exhibit attached to the
answer of the fiscal, the 170 women were destined to be laborers, at good
salaries, on the haciendas of Yigo and Governor Sales. In open court, the
fiscal admitted, in answer to question of a member of the court, that these
women had been sent out of Manila without their consent. The court
awarded the writ, in an order of November 4, that directed Justo Lukban,
Mayor of the city of Manila, Anton Hohmann, chief of police of the city of
Manila, Francisco Sales, governor of the province of Davao, and Feliciano
Yigo, an hacendero of Davao, to bring before the court the persons therein
named, alleged to be deprived of their liberty, on December 2, 1918.
Before the date mentioned, seven of the women had returned to Manila at
their own expense. On motion of counsel for petitioners, their testimony was
taken before the clerk of the Supreme Court sitting as commissioners. On
the day named in the order, December 2nd, 1918, none of the persons in
whose behalf the writ was issued were produced in court by the
respondents. It has been shown that three of those who had been able to
come back to Manila through their own efforts, were notified by the police
and the secret service to appear before the court. The fiscal appeared,
repeated the facts more comprehensively, reiterated the stand taken by him
when pleading to the original petition copied a telegram from the Mayor of
the city of Manila to the provincial governor of Davao and the answer thereto,
and telegrams that had passed between the Director of Labor and the
attorney for that Bureau then in Davao, and offered certain affidavits showing
that the women were contained with their life in Mindanao and did not wish to
return to Manila. Respondents Sales answered alleging that it was not
possible to fulfill the order of the Supreme Court because the women had
never been under his control, because they were at liberty in the Province of
Davao, and because they had married or signed contracts as laborers.
Respondent Yigo answered alleging that he did not have any of the women
under his control and that therefore it was impossible for him to obey the
mandate. The court, after due deliberation, on December 10, 1918,
promulgated a second order, which related that the respondents had not
complied with the original order to the satisfaction of the court nor explained
their failure to do so, and therefore directed that those of the women not in
Manila be brought before the court by respondents Lukban, Hohmann,
Sales, and Yigo on January 13, 1919, unless the women should, in written

statements voluntarily made before the judge of first instance of Davao or the
clerk of that court, renounce the right, or unless the respondents should
demonstrate some other legal motives that made compliance impossible. It
was further stated that the question of whether the respondents were in
contempt of court would later be decided and the reasons for the order
announced in the final decision.
Before January 13, 1919, further testimony including that of a number of the
women, of certain detectives and policemen, and of the provincial governor
of Davao, was taken before the clerk of the Supreme Court sitting as
commissioner and the clerk of the Court of First Instance of Davao acting in
the same capacity. On January 13, 1919, the respondents technically
presented before the Court the women who had returned to the city through
their own efforts and eight others who had been brought to Manila by the
respondents. Attorneys for the respondents, by their returns, once again
recounted the facts and further endeavored to account for all of the persons
involved in the habeas corpus. In substance, it was stated that the
respondents, through their representatives and agents, had succeeded in
bringing from Davao with their consent eight women; that eighty-one women
were found in Davao who, on notice that if they desired they could return to
Manila, transportation fee, renounced the right through sworn statements;
that fifty-nine had already returned to Manila by other means, and that
despite all efforts to find them twenty-six could not be located. Both counsel
for petitioners and the city fiscal were permitted to submit memoranda. The
first formally asked the court to find Justo Lukban, Mayor of the city of
Manila, Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez
and Fernando Ordax, members of the police force of the city of Manila,
Feliciano Yigo, an hacendero of Davao, Modesto Joaquin, the attorney for
the Bureau of Labor, and Anacleto Diaz, fiscal of the city of Manila, in
contempt of court. The city fiscal requested that the replica al memorandum
de los recurridos, (reply to respondents' memorandum) dated January 25,
1919, be struck from the record.
In the second order, the court promised to give the reasons for granting the
writ of habeas corpus in the final decision. We will now proceed to do so.
One fact, and one fact only, need be recalled these one hundred and
seventy women were isolated from society, and then at night, without their
consent and without any opportunity to consult with friends or to defend their

190
rights, were forcibly hustled on board steamers for transportation to regions
unknown. Despite the feeble attempt to prove that the women left voluntarily
and gladly, that such was not the case is shown by the mere fact that the
presence of the police and the constabulary was deemed necessary and that
these officers of the law chose the shades of night to cloak their secret and
stealthy acts. Indeed, this is a fact impossible to refute and practically
admitted by the respondents.
With this situation, a court would next expect to resolve the question By
authority of what law did the Mayor and the Chief of Police presume to act in
deporting by duress these persons from Manila to another distant locality
within the Philippine Islands? We turn to the statutes and we find
Alien prostitutes can be expelled from the Philippine Islands in conformity
with an Act of congress. The Governor-General can order the eviction of
undesirable aliens after a hearing from the Islands. Act No. 519 of the
Philippine Commission and section 733 of the Revised Ordinances of the city
of Manila provide for the conviction and punishment by a court of justice of
any person who is a common prostitute. Act No. 899 authorizes the return of
any citizen of the United States, who may have been convicted of vagrancy,
to the homeland. New York and other States have statutes providing for the
commitment to the House of Refuge of women convicted of being common
prostitutes. Always a law! Even when the health authorities compel
vaccination, or establish a quarantine, or place a leprous person in the
Culion leper colony, it is done pursuant to some law or order. But one can
search in vain for any law, order, or regulation, which even hints at the right
of the Mayor of the city of Manila or the chief of police of that city to force
citizens of the Philippine Islands and these women despite their being in a
sense lepers of society are nevertheless not chattels but Philippine citizens
protected by the same constitutional guaranties as are other citizens to
change their domicile from Manila to another locality. On the contrary,
Philippine penal law specifically punishes any public officer who, not being
expressly authorized by law or regulation, compels any person to change his
residence.
In other countries, as in Spain and Japan, the privilege of domicile is deemed
so important as to be found in the Bill of Rights of the Constitution. Under the
American constitutional system, liberty of abode is a principle so deeply
imbedded in jurisprudence and considered so elementary in nature as not

even to require a constitutional sanction. Even the Governor-General of the

Philippine Islands, even the President of the United States, who has often
been said to exercise more power than any king or potentate, has no such
arbitrary prerogative, either inherent or express. Much less, therefore, has
the executive of a municipality, who acts within a sphere of delegated
powers. If the mayor and the chief of police could, at their mere behest or
even for the most praiseworthy of motives, render the liberty of the citizen so
insecure, then the presidents and chiefs of police of one thousand other
municipalities of the Philippines have the same privilege. If these officials can
take to themselves such power, then any other official can do the same. And
if any official can exercise the power, then all persons would have just as
much right to do so. And if a prostitute could be sent against her wishes and
under no law from one locality to another within the country, then officialdom
can hold the same club over the head of any citizen.
Law defines power. Centuries ago Magna Charta decreed that "No
freeman shall be taken, or imprisoned, or be disseized of his freehold, or
liberties, or free customs, or be outlawed, or exiled, or any other wise
destroyed; nor will we pass upon him nor condemn him, but by lawful
judgment of his peers or by the law of the land. We will sell to no man, we
will not deny or defer to any man either justice or right." (Magna Charta, 9
Hen., 111, 1225, Cap. 29; 1 eng. stat. at Large, 7.) No official, no matter how
high, is above the law. The courts are the forum which functionate to
safeguard individual liberty and to punish official transgressors. "The law,"
said Justice Miller, delivering the opinion of the Supreme Court of the United
States, "is the only supreme power in our system of government, and every
man who by accepting office participates in its functions is only the more
strongly bound to submit to that supremacy, and to observe the limitations
which it imposes upon the exercise of the authority which it gives."
(U.S. vs. Lee [1882], 106 U.S., 196, 220.) "The very idea," said Justice
Matthews of the same high tribunal in another case, "that one man may be
compelled to hold his life, or the means of living, or any material right
essential to the enjoyment of life, at the mere will of another, seems to be
intolerable in any country where freedom prevails, as being the essence of
slavery itself." (Yick Wo vs. Hopkins [1886], 118 U.S., 356, 370.) All this
explains the motive in issuing the writ of habeas corpus, and makes clear
why we said in the very beginning that the primary question was whether the
courts should permit a government of men or a government of laws to be
established in the Philippine Islands.

191
What are the remedies of the unhappy victims of official oppression? The
remedies of the citizen are three: (1) Civil action; (2) criminal action, and
(3) habeas corpus.

sufficient defense of personal freedom. Any further rights of the parties are
left untouched by decision on the writ, whose principal purpose is to set the
individual at liberty.

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

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

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

Islands provides:
Any public officer not thereunto authorized by law or by regulations of a
general character in force in the Philippines who shall banish any person to a
place more than two hundred kilometers distant from his domicile, except it
be by virtue of the judgment of a court, shall be punished by a fine of not less
than three hundred and twenty-five and not more than three thousand two
hundred and fifty pesetas.
Any public officer not thereunto expressly authorized by law or by regulation
of a general character in force in the Philippines who shall compel any
person to change his domicile or residence shall suffer the penalty of
destierro and a fine of not less than six hundred and twenty-five and not
more than six thousand two hundred and fifty pesetas. (Art. 211.)

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

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

The fiscal next contended that the writ should have been asked for in the
Court of First Instance of Davao or should have been made returnable
before that court. It is a general rule of good practice that, to avoid
unnecessary expense and inconvenience, petitions for habeas
corpus should be presented to the nearest judge of the court of first instance.
But this is not a hard and fast rule. The writ of habeas corpus may be
granted by the Supreme Court or any judge thereof enforcible anywhere in
the Philippine Islands. (Code of Criminal Procedure, sec. 79; Code of Civil
Procedure, sec. 526.) Whether the writ shall be made returnable before the
Supreme Court or before an inferior court rests in the discretion of the
Supreme Court and is dependent on the particular circumstances. In this
instance it was not shown that the Court of First Instance of Davao was in
session, or that the women had any means by which to advance their plea
before that court. On the other hand, it was shown that the petitioners with

192
their attorneys, and the two original respondents with their attorney, were in
Manila; it was shown that the case involved parties situated in different parts
of the Islands; it was shown that the women might still be imprisoned or
restrained of their liberty; and it was shown that if the writ was to accomplish
its purpose, it must be taken cognizance of and decided immediately by the
appellate court. The failure of the superior court to consider the application
and then to grant the writ would have amounted to a denial of the benefits of
the writ.
The last argument of the fiscal is more plausible and more difficult to meet.
When the writ was prayed for, says counsel, the parties in whose behalf it
was asked were under no restraint; the women, it is claimed, were free in
Davao, and the jurisdiction of the mayor and the chief of police did not
extend beyond the city limits. At first blush, this is a tenable position. On
closer examination, acceptance of such dictum is found to be perversive of
the first principles of the writ of habeas corpus.
A prime specification of an application for a writ of habeas corpus is restraint
of liberty. The essential object and purpose of the writ of habeas corpus is to
inquire into all manner of involuntary restraint as distinguished from
voluntary, and to relieve a person therefrom if such restraint is illegal. Any
restraint which will preclude freedom of action is sufficient. The forcible
taking of these women from Manila by officials of that city, who handed them
over to other parties, who deposited them in a distant region, deprived these
women of freedom of locomotion just as effectively as if they had been
imprisoned. Placed in Davao without either money or personal belongings,
they were prevented from exercising the liberty of going when and where
they pleased. The restraint of liberty which began in Manila continued until
the aggrieved parties were returned to Manila and released or until they
freely and truly waived his right.
Consider for a moment what an agreement with such a defense would mean.
The chief executive of any municipality in the Philippines could forcibly and
illegally take a private citizen and place him beyond the boundaries of the
municipality, and then, when called upon to defend his official action, could
calmly fold his hands and claim that the person was under no restraint and
that he, the official, had no jurisdiction over this other municipality. We
believe the true principle should be that, if the respondent is within the
jurisdiction of the court and has it in his power to obey the order of the court

and thus to undo the wrong that he has inflicted, he should be compelled to
do so. Even if the party to whom the writ is addressed has illegally parted
with the custody of a person before the application for the writ is no reason
why the writ should not issue. If the mayor and the chief of police, acting
under no authority of law, could deport these women from the city of Manila
to Davao, the same officials must necessarily have the same means to
return them from Davao to Manila. The respondents, within the reach of
process, may not be permitted to restrain a fellow citizen of her liberty by
forcing her to change her domicile and to avow the act with impunity in the
courts, while the person who has lost her birthright of liberty has no effective
recourse. The great writ of liberty may not thus be easily evaded.
It must be that some such question has heretofore been presented to the
courts for decision. Nevertheless, strange as it may seem, a close
examination of the authorities fails to reveal any analogous case. Certain
decisions of respectable courts are however very persuasive in nature.
A question came before the Supreme Court of the State of Michigan at an
early date as to whether or not a writ ofhabeas corpus would issue from the
Supreme Court to a person within the jurisdiction of the State to bring into
the State a minor child under guardianship in the State, who has been and
continues to be detained in another State. The membership of the Michigan
Supreme Court at this time was notable. It was composed of Martin, chief
justice, and Cooley, Campbell, and Christiancy, justices. On the question
presented the court was equally divided. Campbell, J., with whom concurred
Martin, C. J., held that the writ should be quashed. Cooley, J., one of the
most distinguished American judges and law-writers, with whom concurred
Christiancy, J., held that the writ should issue. Since the opinion of Justice
Campbell was predicated to a large extent on his conception of the English
decisions, and since, as will hereafter appear, the English courts have taken
a contrary view, only the following eloquent passages from the opinion of
Justice Cooley are quoted:
I have not yet seen sufficient reason to doubt the power of this court
to issue the present writ on the petition which was laid before us. . . .
It would be strange indeed if, at this late day, after the eulogiums of
six centuries and a half have been expended upon the Magna
Charta, and rivers of blood shed for its establishment; after its many

193
confirmations, until Coke could declare in his speech on the petition
of right that "Magna Charta was such a fellow that he will have no
sovereign," and after the extension of its benefits and securities by
the petition of right, bill of rights and habeas corpus acts, it should
now be discovered that evasion of that great clause for the protection
of personal liberty, which is the life and soul of the whole instrument,
is so easy as is claimed here. If it is so, it is important that it be
determined without delay, that the legislature may apply the proper
remedy, as I can not doubt they would, on the subject being brought
to their notice. . . .
The second proposition that the statutory provisions are confined
to the case of imprisonment within the state seems to me to be
based upon a misconception as to the source of our jurisdiction. It
was never the case in England that the court of king's bench derived
its jurisdiction to issue and enforce this writ from the statute. Statutes
were not passed to give the right, but to compel the observance of
rights which existed. . . .
The important fact to be observed in regard to the mode of procedure
upon this writ is, that it is directed to and served upon, not the person
confined, but his jailor. It does not reach the former except through
the latter. The officer or person who serves it does not unbar the
prison doors, and set the prisoner free, but the court relieves him by
compelling the oppressor to release his constraint. The whole force of
the writ is spent upon the respondent, and if he fails to obey it, the
means to be resorted to for the purposes of compulsion are fine and
imprisonment. This is the ordinary mode of affording relief, and if any
other means are resorted to, they are only auxiliary to those which
are usual. The place of confinement is, therefore, not important to the
relief, if the guilty party is within reach of process, so that by the
power of the court he can be compelled to release his grasp. The
difficulty of affording redress is not increased by the confinement
being beyond the limits of the state, except as greater distance may
affect it. The important question is, where the power of control
exercised? And I am aware of no other remedy. (In the matter of
Jackson [1867], 15 Mich., 416.)

The opinion of Judge Cooley has since been accepted as authoritative by

other courts. (Rivers vs. Mitchell [1881], 57 Iowa, 193; Breene vs. People
[1911], Colo., 117 Pac. Rep., 1000; Ex parte Young [1892], 50 Fed., 526.)
The English courts have given careful consideration to the subject. Thus, a
child had been taken out of English by the respondent. A writ of habeas
corpus was issued by the Queen's Bench Division upon the application of
the mother and her husband directing the defendant to produce the child.
The judge at chambers gave defendant until a certain date to produce the
child, but he did not do so. His return stated that the child before the
issuance of the writ had been handed over by him to another; that it was no
longer in his custody or control, and that it was impossible for him to obey
the writ. He was found in contempt of court. On appeal, the court, through
Lord Esher, M. R., said:
A writ of habeas corpus was ordered to issue, and was issued on January
22. That writ commanded the defendant to have the body of the child before
a judge in chambers at the Royal Courts of Justice immediately after the
receipt of the writ, together with the cause of her being taken and
detained. That is a command to bring the child before the judge and must be
obeyed, unless some lawful reason can be shown to excuse the
nonproduction of the child. If it could be shown that by reason of his having
lawfully parted with the possession of the child before the issuing of the writ,
the defendant had no longer power to produce the child, that might be an
answer; but in the absence of any lawful reason he is bound to produce the
child, and, if he does not, he is in contempt of the Court for not obeying the
writ without lawful excuse. Many efforts have been made in argument to shift
the question of contempt to some anterior period for the purpose of showing
that what was done at some time prior to the writ cannot be a contempt. But
the question is not as to what was done before the issue of the writ. The
question is whether there has been a contempt in disobeying the writ it was
issued by not producing the child in obedience to its commands. (The
Queen vs. Bernardo [1889], 23 Q. B. D., 305. See also to the same effect the
Irish case of In re Matthews, 12 Ir. Com. Law Rep. [N. S.], 233; The
Queen vs. Barnardo, Gossage's Case [1890], 24 Q. B. D., 283.)
A decision coming from the Federal Courts is also of interest. A habeas
corpus was directed to the defendant to have before the circuit court of the
District of Columbia three colored persons, with the cause of their detention.

194
Davis, in his return to the writ, stated on oath that he had purchased the
negroes as slaves in the city of Washington; that, as he believed, they were
removed beyond the District of Columbia before the service of the writ
of habeas corpus, and that they were then beyond his control and out of his
custody. The evidence tended to show that Davis had removed the negroes
because he suspected they would apply for a writ of habeas corpus. The
court held the return to be evasive and insufficient, and that Davis was
bound to produce the negroes, and Davis being present in court, and
refusing to produce them, ordered that he be committed to the custody of the
marshall until he should produce the negroes, or be otherwise discharged in
due course of law. The court afterwards ordered that Davis be released upon
the production of two of the negroes, for one of the negroes had run away
and been lodged in jail in Maryland. Davis produced the two negroes on the
last day of the term. (United States vs. Davis [1839], 5 Cranch C.C., 622,
Fed. Cas. No. 14926. See also Robb vs. Connolly [1883], 111 U.S., 624;
Church on Habeas, 2nd ed., p. 170.)
We find, therefore, both on reason and authority, that no one of the defense
offered by the respondents constituted a legitimate bar to the granting of the
writ of habeas corpus.
There remains to be considered whether the respondent complied with the
two orders of the Supreme Court awarding the writ of habeas corpus, and if it
be found that they did not, whether the contempt should be punished or be
taken as purged.
The first order, it will be recalled, directed Justo Lukban, Anton Hohmann,
Francisco Sales, and Feliciano Yigo to present the persons named in the
writ before the court on December 2, 1918. The order was dated November
4, 1918. The respondents were thus given ample time, practically one
month, to comply with the writ. As far as the record discloses, the Mayor of
the city of Manila waited until the 21st of November before sending a
telegram to the provincial governor of Davao. According to the response of
the attorney for the Bureau of Labor to the telegram of his chief, there were
then in Davao women who desired to return to Manila, but who should not be
permitted to do so because of having contracted debts. The half-hearted
effort naturally resulted in none of the parties in question being brought
before the court on the day named.

For the respondents to have fulfilled the court's order, three optional courses
were open: (1) They could have produced the bodies of the persons
according to the command of the writ; or (2) they could have shown by
affidavit that on account of sickness or infirmity those persons could not
safely be brought before the court; or (3) they could have presented
affidavits to show that the parties in question or their attorney waived the
right to be present. (Code of Criminal Procedure, sec. 87.) They did not
produce the bodies of the persons in whose behalf the writ was granted; they
did not show impossibility of performance; and they did not present writings
that waived the right to be present by those interested. Instead a few
stereotyped affidavits purporting to show that the women were contended
with their life in Davao, some of which have since been repudiated by the
signers, were appended to the return. That through ordinary diligence a
considerable number of the women, at least sixty, could have been brought
back to Manila is demonstrated to be found in the municipality of Davao, and
that about this number either returned at their own expense or were
produced at the second hearing by the respondents.
The court, at the time the return to its first order was made, would have been
warranted summarily in finding the respondents guilty of contempt of court,
and in sending them to jail until they obeyed the order. Their excuses for the
non-production of the persons were far from sufficient. The, authorities cited
herein pertaining to somewhat similar facts all tend to indicate with what
exactitude a habeas corpus writ must be fulfilled. For example, in Gossage's
case, supra, the Magistrate in referring to an earlier decision of the Court,
said: "We thought that, having brought about that state of things by his own
illegal act, he must take the consequences; and we said that he was bound
to use every effort to get the child back; that he must do much more than
write letters for the purpose; that he must advertise in America, and even if
necessary himself go after the child, and do everything that mortal man could
do in the matter; and that the court would only accept clear proof of an
absolute impossibility by way of excuse." In other words, the return did not
show that every possible effort to produce the women was made by the
respondents. That the court forebore at this time to take drastic action was
because it did not wish to see presented to the public gaze the spectacle of a
clash between executive officials and the judiciary, and because it desired to
give the respondents another chance to demonstrate their good faith and to
mitigate their wrong.

195
In response to the second order of the court, the respondents appear to have
become more zealous and to have shown a better spirit. Agents were
dispatched to Mindanao, placards were posted, the constabulary and the
municipal police joined in rounding up the women, and a steamer with free
transportation to Manila was provided. While charges and counter-charges in
such a bitterly contested case are to be expected, and while a critical reading
of the record might reveal a failure of literal fulfillment with our mandate, we
come to conclude that there is a substantial compliance with it. Our finding to
this effect may be influenced somewhat by our sincere desire to see this
unhappy incident finally closed. If any wrong is now being perpetrated in
Davao, it should receive an executive investigation. If any particular
individual is still restrained of her liberty, it can be made the object of
separate habeas corpus proceedings.
Since the writ has already been granted, and since we find a substantial
compliance with it, nothing further in this connection remains to be done.
The attorney for the petitioners asks that we find in contempt of court Justo
Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the
city of Manila, Jose Rodriguez, and Fernando Ordax, members of the police
force of the city of Manila, Modesto Joaquin, the attorney for the Bureau of
Labor, Feliciano Yigo, anhacendero of Davao, and Anacleto Diaz, Fiscal of
the city of Manila.
The power to punish for contempt of court should be exercised on the
preservative and not on the vindictive principle. Only occasionally should the
court invoke its inherent power in order to retain that respect without which
the administration of justice must falter or fail. Nevertheless when one is
commanded to produce a certain person and does not do so, and does not
offer a valid excuse, a court must, to vindicate its authority, adjudge the
respondent to be guilty of contempt, and must order him either imprisoned or
fined. An officer's failure to produce the body of a person in obedience to a
writ of habeas corpus when he has power to do so, is a contempt committed
in the face of the court. (Ex parte Sterns [1888], 77 Cal., 156; In re Patterson
[1888], 99 N. C., 407.)
With all the facts and circumstances in mind, and with judicial regard for
human imperfections, we cannot say that any of the respondents, with the
possible exception of the first named, has flatly disobeyed the court by acting

in opposition to its authority. Respondents Hohmann, Rodriguez, Ordax, and

Joaquin only followed the orders of their chiefs, and while, under the law of
public officers, this does not exonerate them entirely, it is nevertheless a
powerful mitigating circumstance. The hacendero Yigo appears to have
been drawn into the case through a misconstruction by counsel of
telegraphic communications. The city fiscal, Anacleto Diaz, would seem to
have done no more than to fulfill his duty as the legal representative of the
city government. Finding him innocent of any disrespect to the court, his
counter-motion to strike from the record the memorandum of attorney for the
petitioners, which brings him into this undesirable position, must be granted.
When all is said and done, as far as this record discloses, the official who
was primarily responsible for the unlawful deportation, who ordered the
police to accomplish the same, who made arrangements for the steamers
and the constabulary, who conducted the negotiations with the Bureau of
Labor, and who later, as the head of the city government, had it within his
power to facilitate the return of the unfortunate women to Manila, was Justo
Lukban, the Mayor of the city of Manila. His intention to suppress the social
evil was commendable. His methods were unlawful. His regard for the writ
of habeas corpus issued by the court was only tardily and reluctantly
acknowledged.
It would be possible to turn to the provisions of section 546 of the Code of
Civil Procedure, which relates to the penalty for disobeying the writ, and in
pursuance thereof to require respondent Lukban to forfeit to the parties
aggrieved as much as P400 each, which would reach to many thousands of
pesos, and in addition to deal with him as for a contempt. Some members of
the court are inclined to this stern view. It would also be possible to find that
since respondent Lukban did comply substantially with the second order of
the court, he has purged his contempt of the first order. Some members of
the court are inclined to this merciful view. Between the two extremes
appears to lie the correct finding. The failure of respondent Lukban to obey
the first mandate of the court tended to belittle and embarrass the
administration of justice to such an extent that his later activity may be
considered only as extenuating his conduct. A nominal fine will at once
command such respect without being unduly oppressive such an amount
is P100.
In resume as before stated, no further action on the writ of habeas
corpus is necessary. The respondents Hohmann, Rodriguez, Ordax,

196
Joaquin, Yigo, and Diaz are found not to be in contempt of court.
Respondent Lukban is found in contempt of court and shall pay into the
office of the clerk of the Supreme Court within five days the sum of one
hundred pesos (P100). The motion of the fiscal of the city of Manila to strike
from the record the Replica al Memorandum de los Recurridos of January
25, 1919, is granted. Costs shall be taxed against respondents. So ordered.
In concluding this tedious and disagreeable task, may we not be permitted to
express the hope that this decision may serve to bulwark the fortifications of
an orderly government of laws and to protect individual liberty from illegal
encroachment.
Arellano, C.J., Avancea and Moir, JJ., concur.
Johnson, and Street, JJ., concur in the result.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION

197
G.R. No. 94284

April 8, 1991

RICARDO C. SILVERIO, petitioner,

vs.
THE COURT OF APPEALS, HON. BENIGNO G. GAVIOLA, as Judge of
the Regional Trial Court of Cebu City, Branch IX, and PEOPLE OF THE
PHILIPPINES, respondents.

permission of this Court" (Rollo, p. 45). Petitioner's Motion for

Reconsideration was denied on 28 July 1988.
Petitioner's Certiorari Petition before the Court of Appeals met a similar fate
on 31 January 1990. Hence, this Petition for Review filed on 30 July 1990.
After the respective pleadings required by the Court were filed, we resolved
to give due course and to decide the case.

Quisumbing, Torres & Evangelista for petitioner.

MELENCIO-HERRERA, J.:
This is a Petition for Review on Certiorari under Rule 45 of the Rules of
Court praying that the Decision of respondent Court of Appeals in CA-G.R.
SP No. 15827, entitled "Ricardo C. Silverio vs. Hon. Benigno C. Gaviola,
etc., et al.," dated 31 January 1990, as well as the Resolution of 29 June
1990 denying reconsideration, be set aside.
On 14 October 1985, Petitioner was charged with violation of Section 20 (4)
of the Revised Securities Act in Criminal Case No. CBU-6304 of the
Regional Trial Court of Cebu. In due time, he posted bail for his provisional
liberty.
On 26 January 1988, or more than two (2) years after the filing of the
Information, respondent People of the Philippines filed an Urgent ex
parte Motion to cancel the passport of and to issue a hold-departure Order
against accused-petitioner on the ground that he had gone abroad several
times without the necessary Court approval resulting in postponements of
the arraignment and scheduled hearings.
Overruling opposition, the Regional Trial Court, on 4 April 1988, issued an
Order directing the Department of Foreign Affairs to cancel Petitioner's
passport or to deny his application therefor, and the Commission on
Immigration to prevent Petitioner from leaving the country. This order was
based primarily on the Trial Court's finding that since the filing of the
Information on 14 October 1985, "the accused has not yet been arraigned
because he has never appeared in Court on the dates scheduled for his
arraignment and there is evidence to show that accused Ricardo C. Silverio,
Sr. has left the country and has gone abroad without the knowledge and

Petitioner contends that respondent Court of Appeals erred in not finding that
the Trial Court committed grave abuse of discretion amounting to lack of
jurisdiction in issuing its Orders, dated 4 April and 28 July 1988, (1) on the
basis of facts allegedly patently erroneous, claiming that the scheduled
arraignments could not be held because there was a pending Motion to
Quash the Information; and (2) finding that the right to travel can be impaired
upon lawful order of the Court, even on grounds other than the "interest of
national security, public safety or public health."
We perceive no reversible error.
1) Although the date of the filing of the Motion to Quash has been omitted by
Petitioner, it is apparent that it was filed long after the filing of the Information
in 1985 and only after several arraignments had already been scheduled and
cancelled due to Petitioner's non-appearance. In fact, said Motion to Quash
was set for hearing only on 19 February 1988. Convincingly shown by the
Trial Court and conformed to by respondent Appellate Court is the
concurrence of the following circumstances:
1. The records will show that the information was filed on October 14, 1985.
Until this date (28 July 1988), the case had yet to be arraigned. Several
scheduled arraignments were cancelled and reset, mostly due to the failure
of accused Silverio to appear. The reason for accused Silverio's failure to
appear had invariably been because he is abroad in the United States of
America;
2. Since the information was filed, until this date, accused Silverio had never
appeared in person before the Court;

198
3. The bond posted by accused Silverio had been cancelled twice and
warrants of arrest had been issued against him all for the same reason
failure to appear at scheduled arraignments.
In all candidness, the Court makes the observation that it has given accused
Silverio more than enough consideration. The limit had long been reached
(Order, 28 July 1988, Crim. Case No. CBU-6304, RTC, Cebu, p. 5; Rollo, p.
73).
Patently, therefore, the questioned RTC Orders, dated 4 April 1988 and 28
July 1988, were not based on erroneous facts, as Petitioner would want this
Court to believe. To all appearances, the pendency of a Motion to Quash
came about only after several settings for arraignment had been scheduled
and cancelled by reason of Petitioner's non-appearance.
2) Petitioner's further submission is that respondent Appellate Court
"glaringly erred" in finding that the right to travel can be impaired upon lawful
order of the Court, even on grounds other than the "interest of national
security, public safety or public health."
To start with, and this has not been controverted by Petitioner, the bail bond
he had posted had been cancelled and Warrants of Arrest had been issued
against him by reason, in both instances, of his failure to appear at
scheduled arraignments. Warrants of Arrest having been issued against him
for violation of the conditions of his bail bond, he should be taken into
custody. "Bail is the security given for the release of a person in custody of
the law, furnished by him or a bondsman, conditioned upon his appearance
before any court when so required by the Court or the Rules (1985 Rules on
Criminal Procedure, as amended, Rule 114, Secs. 1 and 2).

The foregoing condition imposed upon an accused to make himself available

at all times whenever the Court requires his presence operates as a valid
restriction of his right to travel (Manotoc, Jr. vs. Court of Appeals, et al. No.
62100, 30 May 1986, 142 SCRA 149). A person facing criminal charges may
be restrained by the Court from leaving the country or, if abroad, compelled
to return (Constitutional Law, Cruz, Isagani A., 1987 Edition, p. 138). So it is
also that "An accused released on bail may be re-arrested without the
necessity of a warrant if he attempts to depart from the Philippines without
prior permission of the Court where the case is pending (ibid., Sec. 20 [2nd
par. ]).
Petitioner takes the posture, however, that while the 1987 Constitution
recognizes the power of the Courts to curtail the liberty of abode within the
limits prescribed by law, it restricts the allowable impairment of the right to
travel only on grounds of interest of national security, public safety or public
health, as compared to the provisions on freedom of movement in the 1935
and 1973 Constitutions.
Under the 1935 Constitution, the liberty of abode and of travel were treated
under one provision.1wphi1 Article III, Section 1(4) thereof reads:
The liberty of abode and of changing the same within the limits prescribed by
law shall not be impaired.
The 1973 Constitution altered the 1935 text by explicitly including the liberty
of travel, thus:
The liberty of abode and of travel shall not be impaired except upon lawful
order of the court or when necessary in the interest of national security,
public safety, or public health (Article IV, Section 5).
The 1987 Constitution has split the two freedoms into two distinct sentences
and treats them differently, to wit:
Sec. 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the court.
Neither shall the right to travel be impaired except in the interest of national
security, public safety, or public health, as may be provided by law.

199
Petitioner thus theorizes that under the 1987 Constitution, Courts can impair
the right to travel only on the grounds of "national security, public safety, or
public health."
The submission is not well taken.
Article III, Section 6 of the 1987 Constitution should be interpreted to mean
that while the liberty of travel may be impaired even without Court Order, the
appropriate executive officers or administrative authorities are not armed
with arbitrary discretion to impose limitations. They can impose limits only on
the basis of "national security, public safety, or public health" and "as may be
provided by law," a limitive phrase which did not appear in the 1973 text (The
Constitution, Bernas, Joaquin G.,S.J., Vol. I, First Edition, 1987, p. 263).
Apparently, the phraseology in the 1987 Constitution was a reaction to the
ban on international travel imposed under the previous regime when there
was a Travel Processing Center, which issued certificates of eligibility to
travel upon application of an interested party (See Salonga vs. Hermoso &
Travel Processing Center, No. 53622, 25 April 1980, 97 SCRA 121).
Article III, Section 6 of the 1987 Constitution should by no means be
construed as delimiting the inherent power of the Courts to use all means
necessary to carry their orders into effect in criminal cases pending before
them. When by law jurisdiction is conferred on a Court or judicial officer, all
auxillary writs, process and other means necessary to carry it into effect may
be employed by such Court or officer (Rule 135, Section 6, Rules of Court).
Petitioner's argument that the ruling in Manotoc, Jr., v. Court of Appeals, et
al. (supra), to the effect that the condition imposed upon an accused
admitted to bail to make himself available at all times whenever the Court
requires his presence operates as a valid restriction on the right to travel no
longer holds under the 1987 Constitution, is far from tenable. The nature and
function of a bail bond has remained unchanged whether under the 1935,
the 1973, or the 1987 Constitution. Besides, the Manotoc ruling on that point
was but a re-affirmation of that laid down long before in People v. Uy Tuising,
61 Phil. 404 (1935).
Petitioner is facing a criminal charge. He has posted bail but has violated the
conditions thereof by failing to appear before the Court when required.
Warrants for his arrest have been issued. Those orders and processes would

be rendered nugatory if an accused were to be allowed to leave or to remain,

at his pleasure, outside the territorial confines of the country. Holding an
accused in a criminal case within the reach of the Courts by preventing his
departure from the Philippines must be considered as a valid restriction on
his right to travel so that he may be dealt with in accordance with law. The
offended party in any criminal proceeding is the People of the Philippines. It
is to their best interest that criminal prosecutions should run their course and
proceed to finality without undue delay, with an accused holding himself
amenable at all times to Court Orders and processes.
WHEREFORE, the judgment under review is hereby AFFIRMED. Costs
against petitioner, Ricardo C. Silverio.
SO ORDERED.
Paras, Padilla, Sarmiento and Regalado, JJ., concur.

200
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 88211 September 15, 1989
FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R.
MARCOS, JR., IRENE M. ARANETA, IMEE MANOTOC, TOMAS
MANOTOC, GREGORIO ARANETA, PACIFICO E. MARCOS, NICANOR
YIGUEZ and PHILIPPINE CONSTITUTION ASSOCIATION
(PHILCONSA), represented by its President, CONRADO F.
ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY
ORDOEZ, MIRIAM DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO
DE VILLA, in their capacity as Secretary of Foreign Affairs, Executive
Secretary, Secretary of Justice, Immigration Commissioner, Secretary
of National Defense and Chief of Staff, respectively, respondents.
CORTES, J.:
Before the Court is a contreversy of grave national importance. While
ostensibly only legal issues are involved, the Court's decision in this case
would undeniably have a profound effect on the political, economic and other
aspects of national life.
We recall that in February 1986, Ferdinand E. Marcos was deposed from the
presidency via the non-violent "people power" revolution and forced into
exile. In his stead, Corazon C. Aquino was declared President of the
Republic under a revolutionary government. Her ascension to and
consilidation of power have not been unchallenged. The failed Manila Hotel
coup in 1986 led by political leaders of Mr. Marcos, the takeover of television
station Channel 7 by rebel troops led by Col. Canlas with the support of
"Marcos loyalists" and the unseccessful plot of the Marcos spouses to
surreptitiously return from Hawii with mercenaries aboard an aircraft
chartered by a Lebanese arms dealer [Manila Bulletin, January 30, 1987]
awakened the nation to the capacity of the Marcoses to stir trouble even

from afar and to the fanaticism and blind loyalty of their followers in the
country. The ratification of the 1987 Constitution enshrined the victory of
"people power" and also clearly reinforced the constitutional moorings of
Mrs. Aquino's presidency. This did not, however, stop bloody challenges to
the government. On August 28, 1987, Col. Gregorio Honasan, one of the
major players in the February Revolution, led a failed coup that left scores of
people, both combatants and civilians, dead. There were several other
armed sorties of lesser significance, but the message they conveyed was the
same a split in the ranks of the military establishment that thraetened
civilian supremacy over military and brought to the fore the realization that
civilian government could be at the mercy of a fractious military.
But the armed threats to the Government were not only found in misguided
elements and among rabid followers of Mr. Marcos. There are also the
communist insurgency and the seccessionist movement in Mindanao which
gained ground during the rule of Mr. Marcos, to the extent that the
communists have set up a parallel government of their own on the areas
they effectively control while the separatist are virtually free to move about in
armed bands. There has been no let up on this groups' determination to
wrest power from the govermnent. Not only through resort to arms but also
to through the use of propaganda have they been successful in dreating
chaos and destabilizing the country.
Nor are the woes of the Republic purely political. The accumulated foreign
debt and the plunder of the nation attributed to Mr. Marcos and his cronies
left the economy devastated. The efforts at economic recovery, three years
after Mrs. Aquino assumed office, have yet to show concrete results in
alleviating the poverty of the masses, while the recovery of the ill-gotten
wealth of the Marcoses has remained elusive.
Now, Mr. Marcos, in his deathbed, has signified his wish to return to the
Philipppines to die. But Mrs. Aquino, considering the dire consequences to
the nation of his return at a time when the stability of government is
threatened from various directions and the economy is just beginning to rise
and move forward, has stood firmly on the decision to bar the return of Mr.
Marcos and his family.
The Petition

201
This case is unique. It should not create a precedent, for the case of a
dictator forced out of office and into exile after causing twenty years of
political, economic and social havoc in the country and who within the short
space of three years seeks to return, is in a class by itself.
This petition for mandamus and prohibition asks the Courts to order the
respondents to issue travel documents to Mr. Marcos and the immediate
members of his family and to enjoin the implementation of the President's
decision to bar their return to the Philippines.
The Issue
Th issue is basically one of power: whether or not, in the exercise of the
powers granted by the Constitution, the President may prohibit the Marcoses
from returning to the Philippines.
According to the petitioners, the resolution of the case would depend on the
resolution of the following issues:
1. Does the President have the power to bar the return of former President
Marcos and family to the Philippines?
a. Is this a political question?
2. Assuming that the President has the power to bar former President
Marcos and his family from returning to the Philippines, in the interest of
"national security, public safety or public health
a. Has the President made a finding that the return of former President
Marcos and his family to the Philippines is a clear and present danger to
national security, public safety or public health?
b. Assuming that she has made that finding
(1) Have the requirements of due process been complied with in making
such finding?
(2) Has there been prior notice to petitioners?

(3) Has there been a hearing?

(4) Assuming that notice and hearing may be dispensed with, has the
President's decision, including the grounds upon which it was based, been
made known to petitioners so that they may controvert the same?
c. Is the President's determination that the return of former President Marcos
and his family to the Philippines is a clear and present danger to national
security, public safety, or public health a political question?
d. Assuming that the Court may inquire as to whether the return of former
President Marcos and his family is a clear and present danger to national
security, public safety, or public health, have respondents established such
fact?
3. Have the respondents, therefore, in implementing the President's decision
to bar the return of former President Marcos and his family, acted and would
be acting without jurisdiction, or in excess of jurisdiction, or with grave abuse
of discretion, in performing any act which would effectively bar the return of
former President Marcos and his family to the Philippines? [Memorandum for
Petitioners, pp. 5-7; Rollo, pp. 234-236.1
The case for petitioners is founded on the assertion that the right of the
Marcoses to return to the Philippines is guaranteed under the following
provisions of the Bill of Rights, to wit:
Section 1. No person shall be deprived of life, liberty, or property without due
process of law, nor shall any person be denied the equal protection of the
laws.
xxx xxx xxx
Section 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the court.
Neither shall the right to travel be impaired except in the interest of national
security, public safety, or public health, as may be provided by law.
The petitioners contend that the President is without power to impair the
liberty of abode of the Marcoses because only a court may do so "within the

202
limits prescribed by law." Nor may the President impair their right to travel
because no law has authorized her to do so. They advance the view that
before the right to travel may be impaired by any authority or agency of the
government, there must be legislation to that effect.

As petitioners couch it, the question involved is simply whether or not

petitioners Ferdinand E. Marcos and his family have the right to travel and
liberty of abode. Petitioners invoke these constitutional rights in
vacuo without reference to attendant circumstances.

The petitioners further assert that under international law, the right of Mr.
Marcos and his family to return to the Philippines is guaranteed.

Respondents submit that in its proper formulation, the issue is whether or not
petitioners Ferdinand E. Marcos and family have the right to return to the
Philippines and reside here at this time in the face of the determination by
the President that such return and residence will endanger national security
and public safety.

The Universal Declaration of Human Rights provides:

Article 13. (1) Everyone has the right to freedom of movement and residence
within the borders of each state.
(2) Everyone has the right to leave any country, including his own, and to
return to his country.
Likewise, the International Covenant on Civil and Political Rights, which had
been ratified by the Philippines, provides:
Article 12
1) Everyone lawfully within the territory of a State shall, within that territory,
have the right to liberty of movement and freedom to choose his residence.
2) Everyone shall be free to leave any country, including his own.
3) The above-mentioned rights shall not be subject to any restrictions except
those which are provided by law, are necessary to protect national security,
public order (order public), public health or morals or the rights and freedoms
of others, and are consistent with the other rights recognized in the present
Covenant.
4) No one shall be arbitrarily deprived of the right to enter his own country.
On the other hand, the respondents' principal argument is that the issue in
this case involves a political question which is non-justiciable. According to
the Solicitor General:

It may be conceded that as formulated by petitioners, the question is not a

political question as it involves merely a determination of what the law
provides on the matter and application thereof to petitioners Ferdinand E.
Marcos and family. But when the question is whether the two rights claimed
by petitioners Ferdinand E. Marcos and family impinge on or collide with the
more primordial and transcendental right of the State to security and safety
of its nationals, the question becomes political and this Honorable Court can
not consider it.
There are thus gradations to the question, to wit:
Do petitioners Ferdinand E. Marcos and family have the right to return to the
Philippines and reestablish their residence here? This is clearly a justiciable
question which this Honorable Court can decide.
Do petitioners Ferdinand E. Marcos and family have their right to return to
the Philippines and reestablish their residence here even if their return and
residence here will endanger national security and public safety? this is still a
justiciable question which this Honorable Court can decide.
Is there danger to national security and public safety if petitioners Ferdinand
E. Marcos and family shall return to the Philippines and establish their
residence here? This is now a political question which this Honorable Court
can not decide for it falls within the exclusive authority and competence of
the President of the Philippines. [Memorandum for Respondents, pp. 9-11;
Rollo, pp. 297-299.]

203
Respondents argue for the primacy of the right of the State to national
security over individual rights. In support thereof, they cite Article II of the
Constitution, to wit:
Section 4. The prime duty of the Government is to serve and protect the
people. The Government may call upon the people to defend the State and,
in the fulfillment thereof, all citizens may be required, under conditions
provided by law, to render personal, military, or civil service.
Section 5. The maintenance of peace and order, the protection of life, liberty,
and property, and the promotion of the general welfare are essential for the
enjoyment by all the people of the blessings of democracy.
Respondents also point out that the decision to ban Mr. Marcos and family
from returning to the Philippines for reasons of national security and public
safety has international precedents. Rafael Trujillo of the Dominican
Republic, Anastacio Somoza Jr. of Nicaragua, Jorge Ubico of Guatemala,
Fulgencio batista of Cuba, King Farouk of Egypt, Maximiliano Hernandez
Martinez of El Salvador, and Marcos Perez Jimenez of Venezuela were
among the deposed dictators whose return to their homelands was
prevented by their governments. [See Statement of Foreign Affairs Secretary
Raul S. Manglapus, quoted in Memorandum for Respondents, pp. 26-32;
Rollo, pp. 314-319.]
The parties are in agreement that the underlying issue is one of the scope of
presidential power and its limits. We, however, view this issue in a different
light. Although we give due weight to the parties' formulation of the issues,
we are not bound by its narrow confines in arriving at a solution to the
controversy.
At the outset, we must state that it would not do to view the case within the
confines of the right to travel and the import of the decisions of the U.S.
Supreme Court in the leading cases of Kent v. Dulles [357 U.S. 116, 78 SCt
1113, 2 L Ed. 2d 1204] and Haig v. Agee [453 U.S. 280, 101 SCt 2766, 69 L
Ed. 2d 640) which affirmed the right to travel and recognized exceptions to
the exercise thereof, respectively.
It must be emphasized that the individual right involved is not the right to
travel from the Philippines to other countries or within the Philippines. These

are what the right to travel would normally connote. Essentially, the right
involved is the right to return to one's country, a totally distinct right under
international law, independent from although related to the right to travel.
Thus, the Universal Declaration of Humans Rights and the International
Covenant on Civil and Political Rights treat the right to freedom of movement
and abode within the territory of a state, the right to leave a country, and the
right to enter one's country as separate and distinct rights. The Declaration
speaks of the "right to freedom of movement and residence within the
borders of each state" [Art. 13(l)] separately from the "right to leave any
country, including his own, and to return to his country." [Art. 13(2).] On the
other hand, the Covenant guarantees the "right to liberty of movement and
freedom to choose his residence" [Art. 12(l)] and the right to "be free to leave
any country, including his own." [Art. 12(2)] which rights may be restricted by
such laws as "are necessary to protect national security, public order, public
health or morals or enter qqqs own country" of which one cannot be
"arbitrarily deprived." [Art. 12(4).] It would therefore be inappropriate to
construe the limitations to the right to return to one's country in the same
context as those pertaining to the liberty of abode and the right to travel.
The right to return to one's country is not among the rights specifically
guaranteed in the Bill of Rights, which treats only of the liberty of abode and
the right to travel, but it is our well-considered view that the right to return
may be considered, as a generally accepted principle of international law
and, under our Constitution, is part of the law of the land [Art. II, Sec. 2 of the
Constitution.] However, it is distinct and separate from the right to travel and
enjoys a different protection under the International Covenant of Civil and
Political Rights, i.e., against being "arbitrarily deprived" thereof [Art. 12 (4).]
Thus, the rulings in the cases Kent and Haig which refer to the issuance of
passports for the purpose of effectively exercising the right to travel are not
determinative of this case and are only tangentially material insofar as they
relate to a conflict between executive action and the exercise of a protected
right. The issue before the Court is novel and without precedent in Philippine,
and even in American jurisprudence.
Consequently, resolution by the Court of the well-debated issue of whether
or not there can be limitations on the right to travel in the absence of
legislation to that effect is rendered unnecessary. An appropriate case for its
resolution will have to be awaited.

204
Having clarified the substance of the legal issue, we find now a need to
explain the methodology for its resolution. Our resolution of the issue will
involve a two-tiered approach. We shall first resolve whether or not the
President has the power under the Constitution, to bar the Marcoses from
returning to the Philippines. Then, we shall determine, pursuant to the
express power of the Court under the Constitution in Article VIII, Section 1,
whether or not the President acted arbitrarily or with grave abuse of
discretion amounting to lack or excess of jurisdiction when she determined
that the return of the Marcose's to the Philippines poses a serious threat to
national interest and welfare and decided to bar their return.
Executive Power
The 1987 Constitution has fully restored the separation of powers of the
three great branches of government. To recall the words of Justice Laurel
in Angara v. Electoral Commission [63 Phil. 139 (1936)], "the Constitution
has blocked but with deft strokes and in bold lines, allotment of power to the
executive, the legislative and the judicial departments of the government."
[At 157.1 Thus, the 1987 Constitution explicitly provides that "[the legislative
power shall be vested in the Congress of the Philippines" Art VI, Sec. 11,
"[t]he executive power shall bevested in the President of the Philippines" [Art.
VII, Sec. 11, and "[te judicial power shall be vested in one Supreme Court
and in such lower courts as may be established by law" [Art. VIII, Sec. 1.]
These provisions not only establish a separation of powers by actual division
[Angara v. Electoral Commission, supra] but also confer plenary legislative,
executive and judicial powers subject only to limitations provided in the
Constitution. For as the Supreme Court in Ocampo v. Cabangis [15 Phil. 626
(1910)] pointed out "a grant of the legislative power means a grant of all
legislative power; and a grant of the judicial power means a grant of all the
judicial power which may be exercised under the government." [At 631-632.1
If this can be said of the legislative power which is exercised by two
chambers with a combined membership of more than two hundred members
and of the judicial power which is vested in a hierarchy of courts, it can
equally be said of the executive power which is vested in one official the
President.
As stated above, the Constitution provides that "[t]he executive power shall
be vested in the President of the Philippines." [Art. VII, Sec. 1]. However, it
does not define what is meant by executive power" although in the same

article it touches on the exercise of certain powers by the President, i.e., the
power of control over all executive departments, bureaus and offices, the
power to execute the laws, the appointing power, the powers under the
commander-in-chief clause, the power to grant reprieves, commutations and
pardons, the power to grant amnesty with the concurrence of Congress, the
power to contract or guarantee foreign loans, the power to enter into treaties
or international agreements, the power to submit the budget to Congress,
and the power to address Congress [Art. VII, Sec. 14-23].
The inevitable question then arises: by enumerating certain powers of the
President did the framers of the Constitution intend that the President shall
exercise those specific powers and no other? Are these se enumerated
powers the breadth and scope of "executive power"? Petitioners advance the
view that the President's powers are limited to those specifically enumerated
in the 1987 Constitution. Thus, they assert: "The President has enumerated
powers, and what is not enumerated is impliedly denied to her. Inclusion
unius est exclusio alterius[Memorandum for Petitioners, p. 4- Rollo p. 233.1
This argument brings to mind the institution of the U.S. Presidency after
which ours is legally patterned.**
Corwin, in his monumental volume on the President of the United States
grappled with the same problem. He said:
Article II is the most loosely drawn chapter of the Constitution. To those who
think that a constitution ought to settle everything beforehand it should be a
nightmare; by the same token, to those who think that constitution makers
ought to leave considerable leeway for the future play of political forces, it
should be a vision realized.
We encounter this characteristic of Article 11 in its opening words: "The
executive power shall be vested in a President of the United States of
America." . . .. [The President: Office and Powers, 17871957, pp. 3-4.]
Reviewing how the powers of the U.S. President were exercised by the
different persons who held the office from Washington to the early 1900's,
and the swing from the presidency by commission to Lincoln's dictatorship,
he concluded that "what the presidency is at any particular moment depends
in important measure on who is President." [At 30.]

205
This view is shared by Schlesinger who wrote in The Imperial Presidency:
For the American Presidency was a peculiarly personal institution. it
remained of course, an agency of government subject to unvarying demands
and duties no remained, of cas President. But, more than most agencies of
government, it changed shape, intensity and ethos according to the man in
charge. Each President's distinctive temperament and character, his values,
standards, style, his habits, expectations, Idiosyncrasies, compulsions,
phobias recast the WhiteHouse and pervaded the entire government. The
executive branch, said Clark Clifford, was a chameleon, taking its color from
the character and personality of the President. The thrust of the office, its
impact on the constitutional order, therefore altered from President to
President. Above all, the way each President understood it as his personal
obligation to inform and involve the Congress, to earn and hold the
confidence of the electorate and to render an accounting to the nation and
posterity determined whether he strengthened or weakened the
constitutional order. [At 212- 213.]
We do not say that the presidency is what Mrs. Aquino says it is or what she
does but, rather, that the consideration of tradition and the development of
presidential power under the different constitutions are essential for a
complete understanding of the extent of and limitations to the President's
powers under the 1987 Constitution. The 1935 Constitution created a strong
President with explicitly broader powers than the U.S. President. The 1973
Constitution attempted to modify the system of government into the
parliamentary type, with the President as a mere figurehead, but through
numerous amendments, the President became even more powerful, to the
point that he was also the de facto Legislature. The 1987 Constitution,
however, brought back the presidential system of government and restored
the separation of legislative, executive and judicial powers by their actual
distribution among three distinct branches of government with provision for
checks and balances.
It would not be accurate, however, to state that "executive power" is the
power to enforce the laws, for the President is head of state as well as head
of government and whatever powers inhere in such positions pertain to the
office unless the Constitution itself withholds it. Furthermore, the Constitution
itself provides that the execution of the laws is only one of the powers of the
President. It also grants the President other powers that do not involve the

execution of any provision of law, e.g., his power over the country's foreign
relations.
On these premises, we hold the view that although the 1987 Constitution
imposes limitations on the exercise ofspecific powers of the President, it
maintains intact what is traditionally considered as within the scope of
"executive power." Corollarily, the powers of the President cannot be said to
be limited only to the specific powers enumerated in the Constitution. In
other words, executive power is more than the sum of specific powers so
enumerated,
It has been advanced that whatever power inherent in the government that is
neither legislative nor judicial has to be executive. Thus, in the landmark
decision of Springer v. Government of the Philippine Islands, 277 U.S. 189
(1928), on the issue of who between the Governor-General of the Philippines
and the Legislature may vote the shares of stock held by the Government to
elect directors in the National Coal Company and the Philippine National
Bank, the U.S. Supreme Court, in upholding the power of the GovernorGeneral to do so, said:
...Here the members of the legislature who constitute a majority of the
"board" and "committee" respectively, are not charged with the performance
of any legislative functions or with the doing of anything which is in aid of
performance of any such functions by the legislature. Putting aside for the
moment the question whether the duties devolved upon these members are
vested by the Organic Act in the Governor-General, it is clear that they are
not legislative in character, and still more clear that they are not judicial. The
fact that they do not fall within the authority of either of these two constitutes
logical ground for concluding that they do fall within that of the remaining one
among which the powers of government are divided ....[At 202-203;
Emphasis supplied.]
We are not unmindful of Justice Holmes' strong dissent. But in his enduring
words of dissent we find reinforcement for the view that it would indeed be a
folly to construe the powers of a branch of government to embrace only what
are specifically mentioned in the Constitution:

206
The great ordinances of the Constitution do not establish and divide fields of
black and white. Even the more specific of them are found to terminate in a
penumbra shading gradually from one extreme to the other. ....

of the Government exercising the powers delegated by the people forget and
the servants of the people become rulers, the Constitution reminds everyone
that "[s]overeignty resides in the people and all government authority
emanates from them." [Art. II, Sec. 1.]

xxx xxx xxx

It does not seem to need argument to show that however we may disguise it
by veiling words we do not and cannot carry out the distinction between
legislative and executive action with mathematical precision and divide the
branches into watertight compartments, were it ever so desirable to do so,
which I am far from believing that it is, or that the Constitution requires. [At
210- 211.]
The Power Involved
The Constitution declares among the guiding principles that "[t]he prime duty
of theGovernment is to serve and protect the people" and that "[t]he
maintenance of peace and order,the protection of life, liberty, and property,
and the promotion of the general welfare are essential for the enjoyment by
all the people of the blessings of democracy." [Art. II, Secs. 4 and 5.]
Admittedly, service and protection of the people, the maintenance of peace
and order, the protection of life, liberty and property, and the promotion of the
general welfare are essentially ideals to guide governmental action. But such
does not mean that they are empty words. Thus, in the exercise of
presidential functions, in drawing a plan of government, and in directing
implementing action for these plans, or from another point of view, in making
any decision as President of the Republic, the President has to consider
these principles, among other things, and adhere to them.
Faced with the problem of whether or not the time is right to allow the
Marcoses to return to the Philippines, the President is, under the
Constitution, constrained to consider these basic principles in arriving at a
decision. More than that, having sworn to defend and uphold the
Constitution, the President has the obligation under the Constitution to
protect the people, promote their welfare and advance the national interest. It
must be borne in mind that the Constitution, aside from being an allocation of
power is also a social contract whereby the people have surrendered their
sovereign powers to the State for the common good. Hence, lest the officers

The resolution of the problem is made difficult because the persons who
seek to return to the country are the deposed dictator and his family at
whose door the travails of the country are laid and from whom billions of
dollars believed to be ill-gotten wealth are sought to be recovered. The
constitutional guarantees they invoke are neither absolute nor inflexible. For
the exercise of even the preferred freedoms of speech and ofexpression,
although couched in absolute terms, admits of limits and must be adjusted to
the requirements of equally important public interests [Zaldivar v.
Sandiganbayan, G.R. Nos. 79690-707, October 7, 1981.]
To the President, the problem is one of balancing the general welfare and the
common good against the exercise of rights of certain individuals. The power
involved is the President's residual power to protect the general welfare of
the people. It is founded on the duty of the President, as steward of the
people. To paraphrase Theodore Roosevelt, it is not only the power of the
President but also his duty to do anything not forbidden by the Constitution
or the laws that the needs of the nation demand [See Corwin, supra, at 153].
It is a power borne by the President's duty to preserve and defend the
Constitution. It also may be viewed as a power implicit in the President's duty
to take care that the laws are faithfully executed [see Hyman, The American
President, where the author advances the view that an allowance of
discretionary power is unavoidable in any government and is best lodged in
the President].
More particularly, this case calls for the exercise of the President's powers as
protector of the peace. Rossiter The American Presidency].The power of the
President to keep the peace is not limited merely to exercising the
commander-in-chief powers in times of emergency or to leading the State
against external and internal threats to its existence. The President is not
only clothed with extraordinary powers in times of emergency, but is also
tasked with attending to the day-to-day problems of maintaining peace and
order and ensuring domestic tranquility in times when no foreign foe appears
on the horizon. Wide discretion, within the bounds of law, in fulfilling
presidential duties in times of peace is not in any way diminished by the

207
relative want of an emergency specified in the commander-in-chief provision.
For in making the President commander-in-chief the enumeration of powers
that follow cannot be said to exclude the President's exercising as
Commander-in- Chief powers short of the calling of the armed forces, or
suspending the privilege of the writ of habeas corpus or declaring martial
law, in order to keep the peace, and maintain public order and security.
That the President has the power under the Constitution to bar the
Marcose's from returning has been recognized by memembers of the
Legislature, and is manifested by the Resolution proposed in the House of
Representatives and signed by 103 of its members urging the President to
allow Mr. Marcos to return to the Philippines "as a genuine unselfish gesture
for true national reconciliation and as irrevocable proof of our collective
adherence to uncompromising respect for human rights under the
Constitution and our laws." [House Resolution No. 1342, Rollo, p. 321.1 The
Resolution does not question the President's power to bar the Marcoses
from returning to the Philippines, rather, it appeals to the President's sense
of compassion to allow a man to come home to die in his country.
What we are saying in effect is that the request or demand of the Marcoses
to be allowed to return to the Philippines cannot be considered in the light
solely of the constitutional provisions guaranteeing liberty of abode and the
right to travel, subject to certain exceptions, or of case law which clearly
never contemplated situations even remotely similar to the present one. It
must be treated as a matter that is appropriately addressed to those residual
unstated powers of the President which are implicit in and correlative to the
paramount duty residing in that office to safeguard and protect general
welfare. In that context, such request or demand should submit to the
exercise of a broader discretion on the part of the President to determine
whether it must be granted or denied.
The Extent of Review
Under the Constitution, judicial power includes the duty to determine whether
or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the
Government." [Art. VIII, Sec. 1] Given this wording, we cannot agree with the
Solicitor General that the issue constitutes a political question which is
beyond the jurisdiction of the Court to decide.

The present Constitution limits resort to the political question doctrine and
broadens the scope of judicial inquiry into areas which the Court, under
previous constitutions, would have normally left to the political departments
to decide. But nonetheless there remain issues beyond the Court's
jurisdiction the determination of which is exclusively for the President, for
Congress or for the people themselves through a plebiscite or referendum.
We cannot, for example, question the President's recognition of a foreign
government, no matter how premature or improvident such action may
appear. We cannot set aside a presidential pardon though it may appear to
us that the beneficiary is totally undeserving of the grant. Nor can we amend
the Constitution under the guise of resolving a dispute brought before us
because the power is reserved to the people.
There is nothing in the case before us that precludes our determination
thereof on the political question doctrine. The deliberations of the
Constitutional Commission cited by petitioners show that the framers
intended to widen the scope of judicial review but they did not intend courts
of justice to settle all actual controversies before them. When political
questions are involved, the Constitution limits the determination to whether
or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of the official whose action is being
questioned. If grave abuse is not established, the Court will not substitute its
judgment for that of the official concerned and decide a matter which by its
nature or by law is for the latter alone to decide. In this light, it would appear
clear that the second paragraph of Article VIII, Section 1 of the Constitution,
defining "judicial power," which specifically empowers the courts to
determine whether or not there has been a grave abuse of discretion on the
part of any branch or instrumentality of the government, incorporates in the
fundamental law the ruling inLansang v. Garcia [G.R. No. L-33964,
December 11, 1971, 42 SCRA 4481 that:]
Article VII of the [1935] Constitution vests in the Executive the power to
suspend the privilege of the writ of habeas corpus under specified
conditions. Pursuant to the principle of separation of powers underlying our
system of government, the Executive is supreme within his own sphere.
However, the separation of powers, under the Constitution, is not absolute.
What is more, it goes hand in hand with the system of checks and balances,
under which the Executive is supreme, as regards the suspension of the
privilege, but only if and when he acts within the sphere alloted to him by the

208
Basic Law, and the authority to determine whether or not he has so acted is
vested in the Judicial Department, which, in this respect, is, in turn,
constitutionally supreme. In the exercise of such authority, the function of the
Court is merely to check not to supplant the Executive, or to ascertain
merely whether he has gone beyond the constitutional limits of his
jurisdiction, not to exercise the power vested in him or to determine the
wisdom of his act [At 479-480.]
Accordingly, the question for the Court to determine is whether or not there
exist factual bases for the President to conclude that it was in the national
interest to bar the return of the Marcoses to the Philippines. If such
postulates do exist, it cannot be said that she has acted, or acts, arbitrarily or
that she has gravely abused her discretion in deciding to bar their return.
We find that from the pleadings filed by the parties, from their oral
arguments, and the facts revealed during the briefing in chambers by the
Chief of Staff of the Armed Forces of the Philippines and the National
Security Adviser, wherein petitioners and respondents were represented,
there exist factual bases for the President's decision..
The Court cannot close its eyes to present realities and pretend that the
country is not besieged from within by a well-organized communist
insurgency, a separatist movement in Mindanao, rightist conspiracies to grab
power, urban terrorism, the murder with impunity of military men, police
officers and civilian officials, to mention only a few. The documented history
of the efforts of the Marcose's and their followers to destabilize the country,
as earlier narrated in this ponencia bolsters the conclusion that the return of
the Marcoses at this time would only exacerbate and intensify the violence
directed against the State and instigate more chaos.
As divergent and discordant forces, the enemies of the State may be
contained. The military establishment has given assurances that it could
handle the threats posed by particular groups. But it is the catalytic effect of
the return of the Marcoses that may prove to be the proverbial final straw
that would break the camel's back. With these before her, the President
cannot be said to have acted arbitrarily and capriciously and whimsically in
determining that the return of the Marcoses poses a serious threat to the
national interest and welfare and in prohibiting their return.

It will not do to argue that if the return of the Marcoses to the Philippines will
cause the escalation of violence against the State, that would be the time for
the President to step in and exercise the commander-in-chief powers
granted her by the Constitution to suppress or stamp out such violence. The
State, acting through the Government, is not precluded from taking preemptive action against threats to its existence if, though still nascent they are
perceived as apt to become serious and direct. Protection of the people is
the essence of the duty of government. The preservation of the State the
fruition of the people's sovereignty is an obligation in the highest order. The
President, sworn to preserve and defend the Constitution and to see the
faithful execution the laws, cannot shirk from that responsibility.
We cannot also lose sight of the fact that the country is only now beginning
to recover from the hardships brought about by the plunder of the economy
attributed to the Marcoses and their close associates and relatives, many of
whom are still here in the Philippines in a position to destabilize the country,
while the Government has barely scratched the surface, so to speak, in its
efforts to recover the enormous wealth stashed away by the Marcoses in
foreign jurisdictions. Then, We cannot ignore the continually increasing
burden imposed on the economy by the excessive foreign borrowing during
the Marcos regime, which stifles and stagnates development and is one of
the root causes of widespread poverty and all its attendant ills. The resulting
precarious state of our economy is of common knowledge and is easily
within the ambit of judicial notice.
The President has determined that the destabilization caused by the return
of the Marcoses would wipe away the gains achieved during the past few
years and lead to total economic collapse. Given what is within our individual
and common knowledge of the state of the economy, we cannot argue with
that determination.
WHEREFORE, and it being our well-considered opinion that the President
did not act arbitrarily or with grave abuse of discretion in determining that the
return of former President Marcos and his family at the present time and
under present circumstances poses a serious threat to national interest and
welfare and in prohibiting their return to the Philippines, the instant petition is
hereby DISMISSED.
SO ORDERED.

209
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 81958 June 30, 1988
PHILIPPINE ASSOCIATION OF SERVICE EXPORTERS, INC., petitioner,
vs.
HON. FRANKLIN M. DRILON as Secretary of Labor and Employment,
and TOMAS D. ACHACOSO, as Administrator of the Philippine
Overseas Employment Administration, respondents.
Gutierrez & Alo Law Offices for petitioner.
SARMIENTO, J.:
The petitioner, Philippine Association of Service Exporters, Inc. (PASEI, for
short), a firm "engaged principally in the recruitment of Filipino workers, male
and female, for overseas placement," 1 challenges the Constitutional validity
of Department Order No. 1, Series of 1988, of the Department of Labor and
Employment, in the character of "GUIDELINES GOVERNING THE
TEMPORARY SUSPENSION OF DEPLOYMENT OF FILIPINO DOMESTIC
AND HOUSEHOLD WORKERS," in this petition for certiorari and prohibition.
Specifically, the measure is assailed for "discrimination against males or
females;" 2 that it "does not apply to all Filipino workers but only to domestic
helpers and females with similar skills;" 3 and that it is violative of the right to
travel. It is held likewise to be an invalid exercise of the lawmaking power,
police power being legislative, and not executive, in character.
In its supplement to the petition, PASEI invokes Section 3, of Article XIII, of
the Constitution, providing for worker participation "in policy and decisionmaking processes affecting their rights and benefits as may be provided by
law." 4 Department Order No. 1, it is contended, was passed in the absence
of prior consultations. It is claimed, finally, to be in violation of the Charter's
non-impairment clause, in addition to the "great and irreparable injury" that
PASEI members face should the Order be further enforced.

On May 25, 1988, the Solicitor General, on behalf of the respondents

Secretary of Labor and Administrator of the Philippine Overseas Employment
Administration, filed a Comment informing the Court that on March 8, 1988,
the respondent Labor Secretary lifted the deployment ban in the states of
Iraq, Jordan, Qatar, Canada, Hongkong, United States, Italy, Norway,
Austria, and Switzerland. * In submitting the validity of the challenged
"guidelines," the Solicitor General invokes the police power of the Philippine
State.
It is admitted that Department Order No. 1 is in the nature of a police power
measure. The only question is whether or not it is valid under the
Constitution.
The concept of police power is well-established in this jurisdiction. It has
been defined as the "state authority to enact legislation that may interfere
with personal liberty or property in order to promote the general
welfare." 5 As defined, it consists of (1) an imposition of restraint upon liberty
or property, (2) in order to foster the common good. It is not capable of an
exact definition but has been, purposely, veiled in general terms to
underscore its all-comprehensive embrace.
"Its scope, ever-expanding to meet the exigencies of the times, even to
anticipate the future where it could be done, provides enough room for an
efficient and flexible response to conditions and circumstances thus assuring
the greatest benefits." 6
It finds no specific Constitutional grant for the plain reason that it does not
owe its origin to the Charter. Along with the taxing power and eminent
domain, it is inborn in the very fact of statehood and sovereignty. It is a
fundamental attribute of government that has enabled it to perform the most
vital functions of governance. Marshall, to whom the expression has been
credited, 7 refers to it succinctly as the plenary power of the State "to govern
its citizens." 8
"The police power of the State ... is a power coextensive with self- protection,
and it is not inaptly termed the "law of overwhelming necessity." It may be
said to be that inherent and plenary power in the State which enables it to
prohibit all things hurtful to the comfort, safety, and welfare of society." 9

210
It constitutes an implied limitation on the Bill of Rights. According to
Fernando, it is "rooted in the conception that men in organizing the state and
imposing upon its government limitations to safeguard constitutional rights
did not intend thereby to enable an individual citizen or a group of citizens to
obstruct unreasonably the enactment of such salutary measures calculated
to ensure communal peace, safety, good order, and welfare." 10 Significantly,
the Bill of Rights itself does not purport to be an absolute guaranty of
individual rights and liberties "Even liberty itself, the greatest of all rights, is
not unrestricted license to act according to one's will." 11 It is subject to the far
more overriding demands and requirements of the greater number.
Notwithstanding its extensive sweep, police power is not without its own
limitations. For all its awesome consequences, it may not be exercised
arbitrarily or unreasonably. Otherwise, and in that event, it defeats the
purpose for which it is exercised, that is, to advance the public good. Thus,
when the power is used to further private interests at the expense of the
citizenry, there is a clear misuse of the power. 12
In the light of the foregoing, the petition must be dismissed.
As a general rule, official acts enjoy a presumed vahdity. 13 In the absence of
clear and convincing evidence to the contrary, the presumption logically
stands.
The petitioner has shown no satisfactory reason why the contested measure
should be nullified. There is no question that Department Order No. 1 applies
only to "female contract workers," 14 but it does not thereby make an undue
discrimination between the sexes. It is well-settled that "equality before the
law" under the Constitution 15 does not import a perfect Identity of rights
among all men and women. It admits of classifications, provided that (1)
such classifications rest on substantial distinctions; (2) they are germane to
the purposes of the law; (3) they are not confined to existing conditions; and
(4) they apply equally to all members of the same class. 16
The Court is satisfied that the classification made-the preference for female
workers rests on substantial distinctions.
As a matter of judicial notice, the Court is well aware of the unhappy plight
that has befallen our female labor force abroad, especially domestic

servants, amid exploitative working conditions marked by, in not a few cases,
physical and personal abuse. The sordid tales of maltreatment suffered by
migrant Filipina workers, even rape and various forms of torture, confirmed
by testimonies of returning workers, are compelling motives for urgent
Government action. As precisely the caretaker of Constitutional rights, the
Court is called upon to protect victims of exploitation. In fulfilling that duty, the
Court sustains the Government's efforts.
The same, however, cannot be said of our male workers. In the first place,
there is no evidence that, except perhaps for isolated instances, our men
abroad have been afflicted with an Identical predicament. The petitioner has
proffered no argument that the Government should act similarly with respect
to male workers. The Court, of course, is not impressing some male
chauvinistic notion that men are superior to women. What the Court is saying
is that it was largely a matter of evidence (that women domestic workers are
being ill-treated abroad in massive instances) and not upon some fanciful or
arbitrary yardstick that the Government acted in this case. It is evidence
capable indeed of unquestionable demonstration and evidence this Court
accepts. The Court cannot, however, say the same thing as far as men are
concerned. There is simply no evidence to justify such an inference. Suffice
it to state, then, that insofar as classifications are concerned, this Court is
content that distinctions are borne by the evidence. Discrimination in this
case is justified.
As we have furthermore indicated, executive determinations are generally
final on the Court. Under a republican regime, it is the executive branch that
enforces policy. For their part, the courts decide, in the proper cases,
whether that policy, or the manner by which it is implemented, agrees with
the Constitution or the laws, but it is not for them to question its wisdom. As a
co-equal body, the judiciary has great respect for determinations of the Chief
Executive or his subalterns, especially when the legislature itself has
specifically given them enough room on how the law should be effectively
enforced. In the case at bar, there is no gainsaying the fact, and the Court
will deal with this at greater length shortly, that Department Order No. 1
implements the rule-making powers granted by the Labor Code. But what
should be noted is the fact that in spite of such a fiction of finality, the Court
is on its own persuaded that prevailing conditions indeed call for a
deployment ban.

211
There is likewise no doubt that such a classification is germane to the
purpose behind the measure. Unquestionably, it is the avowed objective of
Department Order No. 1 to "enhance the protection for Filipino female
overseas workers" 17 this Court has no quarrel that in the midst of the terrible
mistreatment Filipina workers have suffered abroad, a ban on deployment
will be for their own good and welfare.
The Order does not narrowly apply to existing conditions. Rather, it is
intended to apply indefinitely so long as those conditions exist. This is clear
from the Order itself ("Pending review of the administrative and legal
measures, in the Philippines and in the host countries . . ." 18), meaning to
say that should the authorities arrive at a means impressed with a greater
degree of permanency, the ban shall be lifted. As a stop-gap measure, it is
possessed of a necessary malleability, depending on the circumstances of
each case. Accordingly, it provides:
9. LIFTING OF SUSPENSION. The Secretary of Labor and Employment
(DOLE) may, upon recommendation of the Philippine Overseas Employment
Administration (POEA), lift the suspension in countries where there are:

distinctions that make a real difference as infancy, sex, and stage of

civilization of minority groups, the better rule, it would seem, is to recognize
its validity only if the young, the women, and the cultural minorities are
singled out for favorable treatment. There would be an element of
unreasonableness if on the contrary their status that calls for the law
ministering to their needs is made the basis of discriminatory legislation
against them. If such be the case, it would be difficult to refute the assertion
of denial of equal protection." 23 In the case at bar, the assailed Order clearly
accords protection to certain women workers, and not the contrary.)
It is incorrect to say that Department Order No. 1 prescribes a total ban on
overseas deployment. From scattered provisions of the Order, it is evident
that such a total ban has hot been contemplated. We quote:
5. AUTHORIZED DEPLOYMENT-The deployment of domestic helpers and
workers of similar skills defined herein to the following [sic] are authorized
under these guidelines and are exempted from the suspension.
5.1 Hirings by immediate members of the family of Heads of State and
Government;

1. Bilateral agreements or understanding with the Philippines, and/or,

2. Existing mechanisms providing for sufficient safeguards to ensure the
welfare and protection of Filipino workers. 19
The Court finds, finally, the impugned guidelines to be applicable to all
female domestic overseas workers. That it does not apply to "all Filipina
workers" 20 is not an argument for unconstitutionality. Had the ban been
given universal applicability, then it would have been unreasonable and
arbitrary. For obvious reasons, not all of them are similarly circumstanced.
What the Constitution prohibits is the singling out of a select person or group
of persons within an existing class, to the prejudice of such a person or
group or resulting in an unfair advantage to another person or group of
persons. To apply the ban, say exclusively to workers deployed by A, but not
to those recruited by B, would obviously clash with the equal protection
clause of the Charter. It would be a classic case of what Chase refers to as a
law that "takes property from A and gives it to B." 21 It would be an unlawful
invasion of property rights and freedom of contract and needless to state, an
invalid act. 22 (Fernando says: "Where the classification is based on such

5.2 Hirings by Minister, Deputy Minister and the other senior government
officials; and
5.3 Hirings by senior officials of the diplomatic corps and duly accredited
international organizations.
5.4 Hirings by employers in countries with whom the Philippines have [sic]
bilateral labor agreements or understanding.
xxx xxx xxx
7. VACATIONING DOMESTIC HELPERS AND WORKERS OF SIMILAR
SKILLS--Vacationing domestic helpers and/or workers of similar skills shall
be allowed to process with the POEA and leave for worksite only if they are
returning to the same employer to finish an existing or partially served
employment contract. Those workers returning to worksite to serve a new
employer shall be covered by the suspension and the provision of these
guidelines.

212
9. LIFTING OF SUSPENSION-The Secretary of Labor and Employment
(DOLE) may, upon recommendation of the Philippine Overseas Employment
Administration (POEA), lift the suspension in countries where there are:
1. Bilateral agreements or understanding with the Philippines, and/or,
2. Existing mechanisms providing for sufficient safeguards to ensure the
welfare and protection of Filipino workers. 24
The consequence the deployment ban has on the right to travel does not
impair the right. The right to travel is subject, among other things, to the
requirements of "public safety," "as may be provided by law." 25 Department
Order No. 1 is a valid implementation of the Labor Code, in particular, its
basic policy to "afford protection to labor," 26pursuant to the respondent
Department of Labor's rule-making authority vested in it by the Labor
Code. 27 The petitioner assumes that it is unreasonable simply because of its
impact on the right to travel, but as we have stated, the right itself is not
absolute. The disputed Order is a valid qualification thereto.
Neither is there merit in the contention that Department Order No. 1
constitutes an invalid exercise of legislative power. It is true that police power
is the domain of the legislature, but it does not mean that such an authority
may not be lawfully delegated. As we have mentioned, the Labor Code itself
vests the Department of Labor and Employment with rulemaking powers in
the enforcement whereof. 28
The petitioners's reliance on the Constitutional guaranty of worker
participation "in policy and decision-making processes affecting their rights
and benefits" 29 is not well-taken. The right granted by this provision, again,
must submit to the demands and necessities of the State's power of
regulation.
The Constitution declares that:
Sec. 3. The State shall afford full protection to labor, local and overseas,
organized and unorganized, and promote full employment and equality of
employment opportunities for all. 30

"Protection to labor" does not signify the promotion of employment alone.

What concerns the Constitution more paramountly is that such an
employment be above all, decent, just, and humane. It is bad enough that
the country has to send its sons and daughters to strange lands because it
cannot satisfy their employment needs at home. Under these circumstances,
the Government is duty-bound to insure that our toiling expatriates have
adequate protection, personally and economically, while away from home. In
this case, the Government has evidence, an evidence the petitioner cannot
seriously dispute, of the lack or inadequacy of such protection, and as part of
its duty, it has precisely ordered an indefinite ban on deployment.
The Court finds furthermore that the Government has not indiscriminately
made use of its authority. It is not contested that it has in fact removed the
prohibition with respect to certain countries as manifested by the Solicitor
General.
The non-impairment clause of the Constitution, invoked by the petitioner,
must yield to the loftier purposes targetted by the Government. 31 Freedom of
contract and enterprise, like all other freedoms, is not free from restrictions,
more so in this jurisdiction, where laissez faire has never been fully accepted
as a controlling economic way of life.
This Court understands the grave implications the questioned Order has on
the business of recruitment. The concern of the Government, however, is not
necessarily to maintain profits of business firms. In the ordinary sequence of
events, it is profits that suffer as a result of Government regulation. The
interest of the State is to provide a decent living to its citizens. The
Government has convinced the Court in this case that this is its intent. We do
not find the impugned Order to be tainted with a grave abuse of discretion to
warrant the extraordinary relief prayed for.
WHEREFORE, the petition is DISMISSED. No costs.
SO ORDERED.
Yap, C.J., Fernan, Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano,
Gancayco, Padilla, Bidin, Cortes and Grio-Aquino, JJ., concur.
Gutierrez, Jr. and Medialdea, JJ., are on leave.

213
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-27833

April 18, 1969

IN THE MATTER OF PETITION FOR DECLARATORY RELIEF RE

CONSTITUTIONALITY OF REPUBLIC ACT 4880. ARSENIO GONZALES
and FELICISIMO R. CABIGAO, petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.
F. R. Cabigao in his own behalf as petitioner.
B. F. Advincula for petitioner Arsenio Gonzales.
Ramon Barrios for respondent Commission on Elections. Sen. Lorenzo
Taada as amicus curiae.
FERNANDO, J.:
A statute designed to maintain the purity and integrity of the electoral
process by Congress calling a halt to the undesirable practice of prolonged
political campaign bringing in their wake serious evils not the least of which
is the ever increasing cost of seeking public office, is challenged on
constitutional grounds. More precisely, the basic liberties of free speech and
free press, freedom of assembly and freedom of association are invoked to
nullify the act. Thus the question confronting this Court is one of
transcendental significance.
It is faced with the reconciliation of two values esteemed highly and
cherished dearly in a constitutional democracy. One is the freedom of belief
and of expression availed of by an individual whether by himself alone or in
association with others of similar persuasion, a goal that occupies a place
and to none in the legal hierarchy. The other is the safeguarding of the
equally vital right of suffrage by a prohibition of the early nomination of
candidates and the limitation of the period of election campaign or partisan
political activity, with the hope that the time-consuming efforts, entailing huge
expenditures of funds and involving the risk of bitter rivalries that may end in

violence, to paraphrase the explanatory note of the challenged legislation,

could be devoted to more fruitful endeavors.
The task is not easy, but it is unavoidable. That is of the very essence of
judicial duty. To paraphrase a landmark opinion, 1 when we act in these
matters we do so not on the assumption that to us is granted the requisite
knowledge to set matters right, but by virtue of the responsibility we cannot
escape under the Constitution, one that history authenticates, to pass upon
every assertion of an alleged infringement of liberty, when our competence is
appropriately invoked.
This then is the crucial question: Is there an infringement of liberty?
Petitioners so alleged in his action, which they entitled Declaratory Relief
with Preliminary Injunction, filed on July 22, 1967, a proceeding that should
have been started in the of Court of First Instance but treated by this Court
as one of prohibition in view of the seriousness and the urgency of the
constitutional issue raised. Petitioners challenged the validity of two new
sections now included in the Revised Election Code, under Republic Act No.
4880, which was approved and took effect on June 17, 1967, prohibiting the
too early nomination of candidates 2 and limiting the period of election
campaign or partisan political activity. 3
The terms "candidate" and "election campaign" or "partisan political activity"
are likewise defined. The former according to Act No. 4880 "refers to any
person aspiring for or seeking an elective public office regarded of whether
or not said person has already filed his certificate of candidacy or has been
nominated by any political party as its candidate." "Election campaign" or
"partisan political activity" refers to acts designed to have a candidate
elected or not or promote the candidacy of a person or persons to a public
office." Then the acts were specified. There is a proviso that simple
expression of opinion and thoughts concerning the election shall not be
considered as part of an election campaign. There is the further proviso that
nothing stated in the Act "shall be understood to prevent any person from
expressing his views on current political problems or issues, or from
mentioning the names of the candidates for public office whom he
supports." 4
Petitioner Cabigao was, at the time of the filing 6f the petition, an incumbent
councilor in the 4th District of Manila and the Nacionalista Party official

214
candidate for Vice-Mayor of Manila to which he was subsequently elected on
November 11, 1967; petitioner Gonzales, on the other hand, is a private
individual, a registered voter in the City of Manila and a political leader of his
co-petitioner. It is their claim that "the enforcement of said Republic Act No.
4880 in question [would] prejudice [their] basic rights..., such as their
freedom of speech, their freedom of assembly and their right to form
associations or societies for purpose not contrary to law, guaranteed under
the Philippine Constitution," and that therefore said act is unconstitutional.
After invoking anew the fundamental rights to free speech, free press,
freedom of association and freedom of assembly with a citation of two
American Supreme Court decisions, 5 they asserted that "there is nothing in
the spirit or intention of the law that would legally justify its passage and
[enforcement] whether for reasons of public policy, public order or morality,
and that therefore the enactment of Republic Act [No.] 4880 under, the guise
of regulation is but a clear and simple abridgment of the constitutional rights
of freedom of speech, freedom of assembly and the right to form
associations and societies for purposes not contrary to law, ..." There was
the further allegation that the nomination of a candidate and the fixing of
period of election campaign are matters of political expediency and
convenience which only political parties can regulate or curtail by and among
themselves through self-restraint or mutual understanding or agreement and
that the regulation and limitation of these political matters invoking the police
power, in the absence of clear and present danger to the state, would render
the constitutional rights of petitioners meaningless and without effect.
To the plea of petitioners that after hearing, Republic Act No. 4880 be
declared unconstitutional, null and void, respondent Commission on
Elections, in its answer filed on August 1, 1967, after denying the allegations
as to the validity of the act "for being mere conclusions of law, erroneous at
that," and setting forth special affirmative defenses, procedural and
substantive character, would have this Court dismiss the petition.

Thereafter the case was set for hearing on August 3, 1967. On the same
date a resolution was passed by us to the following effect: "At the hearing of
case L-27833 (Arsenio Gonzales, et al. vs. Commission on Elections), Atty.
F. Reyes Cabigao appeared for the petitioners and Atty. Ramon Barrios
appeared for the respondent and they were given a period of four days from
today within which to submit, simultaneously,, their respective memorandum
in lieu of oral argument."
On August 9, 1967, another resolution, self-explanatory in character, came
from this Court. Thus: "In ease G.R. No. L-27833 (Arsenio Gonzales, et al.
vs. Commission on Elections), the Court, with eight (8) Justice present,
having deliberated on the issue of the constitutionality of Republic Act No.
4880; and a divergence of views having developed among the Justices as to
the constitutionality of section 50-B, pars. (c), (d) and (e) of the Revised
Election Code: considering the Constitutional provision that "no treaty or law
may be declared unconstitutional without the concurrence of two-thirds of all
the members of the (Supreme) Court' (sec. 10, Art, VII), the Court [resolved]
to defer final voting on the issue until after the return of the Justices now on
official leave."
The case was then reset for oral argument. At such hearing, one of the copetitioners, now Vice-Mayor Felicisimo Cabigao of the City of Manila acting
as counsel, assailed the validity of the challenged legislation relying primarily
on American Supreme Court opinion that warn against curtailment in
whatever guise or form of the cherished freedoms of expression, of
assemble and of association, all embraced in the First Amendment of the
United States Constitution. Respondent Commission on Elections was duly
represented by Atty. Ramon Barrios.
Senator Lorenzo M. Taada was asked to appear as amicus curiae. That he
did, arguing most impressively with a persuasive exposition of the existence
of undeniable conditions that imperatively called for regulation of the
electoral process and with full recognition that Act No. 4880 could indeed be
looked upon as a limitation on the preferred rights of speech and press, of
assembly and of association. He did justify its enactment however under the
clear and present danger doctrine, there being the substantive evil of
elections, whether for national or local officials, being debased and degraded
by unrestricted campaigning, excess of partisanship and undue

215
concentration in politics with the loss not only of efficiency in government but
of lives as well.
The matter was then discussed in conference, but no final action was taken.
The divergence of views with reference to the paragraphs above mentioned
having continued, on Oct. 10, 1968, this Court, by resolution, invited certain
entities to submit memoranda as amici curiae on the question of the validity
of R.A. Act No. 4880. The Philippine Bar Association, the Civil Liberties
Union, the U.P. Law Center and the U.P. Women Lawyers' Circle were
included, among them. They did file their respective memoranda with this
Court and aided it in the consideration of the constitutional issues involved.
1. In the course of the deliberations, a serious procedural objection was
raised by five members of the Court. 6 It is their view that respondent
Commission on Elections not being sought to be restrained from performing
any specific act, this suit cannot be characterized as other than a mere
request for an advisory opinion. Such a view, from the remedial law
standpoint, has much to recommend it. Nonetheless, a majority would affirm,
the original stand that under the circumstances it could still rightfully be
treated as a petition for prohibition.
The language of Justice Laurel fits the case "All await the decision of this
Court on the constitutional question. Considering, therefore, the importance
which the instant case has assumed and to prevent multiplicity of suits,
strong reasons of public policy demand that [its] constitutionality ... be now
resolved." 7 It may likewise be added that the exceptional character of the
situation that confronts us, the paramount public interest, and the undeniable
necessity for a ruling, the national elections being, barely six months away,
reinforce our stand.
It would appear undeniable, therefore, that before us is an appropriate
invocation of our jurisdiction to prevent the enforcement of an alleged
unconstitutional statute. We are left with no choice then; we must act on the
matter.
There is another procedural obstacle raised by respondent to be hurdled. It
is not insuperable. It is true that ordinarily, a party who impugns the validity of
a statute or ordinance must have a substantial interest in the case such that
he has sustained, or will sustain, direct injury as a result of its

enforcement. 8 Respondent cannot see such interest as being possessed by

petitioners. It may indicate the clarity of vision being dimmed, considering
that one of the petitioners was a candidate for an elective position. Even if
such were the case, however, the objection is not necessarily fatal. In this
jurisdiction, the rule has been sufficiently relaxed to allow a taxpayer to bring
an action to restrain the expenditure of public funds through the enforcement
of an invalid or unconstitutional legislative measure. 9
2. In the answer of the respondent as well as its memorandum, stress was
laid on Republic Act No. 4880 as an exercise of the police power of the state,
designed to insure a free, orderly and honest election by regulating "conduct
which Congress has determined harmful if unstrained and carried for a long
period before elections it necessarily entails huge expenditures of funds on
the part of the candidates, precipitates violence and even deaths, results in
the corruption of the electorate, and inflicts direful consequences upon public
interest as the vital affairs of the country are sacrificed to purely partisan
pursuits." Evidently for respondent that would suffice to meet the
constitutional questions raised as to the alleged infringement of free speech,
free press, freedom of assembly and 'freedom' of association. Would it were
as simple as that?
An eloquent excerpt from a leading American decision 10 admonishes though
against such a cavalier approach. "The case confronts us again with the duty
our system places on this Court to say where the individual's, freedom ends
the State's power begins. Choice on that border, now as always delicate, is
perhaps more so where the usual. presumption supporting legislation is
balanced by the preferred place given in our scheme to the great, the
indispensable democratic freedoms secured by the First Amendment.... That
priority gives these liberties a sanctity and a sanction not permitting dubious
intrusions. And it is the character of the right, not of the limitation, which
determines what standard governs the choice..."
Even a leading American State court decision on a regulatory measure
dealing with elections, cited in the answer of respondent, militates against a
stand minimizing the importance and significance of the alleged violation of
individual rights: "As so construed by us, it has not been made to appear that
section 8189, Comp. Gen. Laws, section 5925, Rev. Gen. St., is on its face
violative of any provision of either the state or Federal Constitution on the
subject of free speech or liberty of the press, nor that its operation is in any

216
wise subversive of any one's constitutional liberty." 11 Another leading State
decision is much more emphatic: "Broad as the power of the legislature is
with respect to regulation of elections, that power is not wholly without
limitation. Under the guise of regulating elections, the legislature may not
deprive a citizen of the right of trial by jury. A person charged with its violation
may not be compelled to give evidence against himself. If it destroys the right
of free speech, it is to that extent void." 12
The question then of the alleged violation of Constitutional rights must be
squarely met.lawphi1.nt
3. Now as to the merits. A brief resume of the basic rights on which
petitioners premise their stand that the act is unconstitutional may prove
illuminating. The primacy, the high estate accorded freedom of expression is
of course a fundamental postulate of our constitutional system. No law shall
be passed abridging the freedom of speech or of the press .... 13 What does it
embrace? At the very least, free speech and free press may be identified
with the liberty to discuss publicly and truthfully any matter of public interest
without censorship or punishment. 14 There is to be then no previous restraint
on the communication of views or subsequent liability whether in libel
suits, 15prosecution for sedition, 16 or action for damages, 17 or contempt
proceedings 18 unless there be a clear and present danger of substantive evil
that Congress has a right to prevent.
The vital need in a constitutional democracy for freedom of expression is
undeniable whether as a means of assuring individual self-fulfillment, of
attaining the truth, of assuring participation by the people in social including
political decision-making, and of maintaining the balance between stability
and change. 19 The trend as reflected in Philippine and American decisions is
to recognize the broadcast scope and assure the widest latitude to this
constitutional guaranty. It represents a profound commitment to the principle
that debate of public issue should be uninhibited, robust, and wide-open. 20 It
is not going too far, according to another American decision, to view the
function of free speech as inviting dispute. "It may indeed best serve its high
purpose when it induces a condition of unrest, creates dissatisfaction with
conditions as they are, or even stirs people to anger." 21 Freedom of speech
and of the press thus means something more than the right to approve
existing political beliefs or economic arrangements, to lend support to official
measures, to take refuge in the existing climate of opinion on any matter of

public consequence. So atrophied, the right becomes meaningless. The right

belongs as well, if not more, for those who question, who do not conform,
who differ. To paraphrase Justice Holmes, it is freedom for the thought that
we hate, no less than for the thought that agrees with us. 22
So with Emerson one may conclude that "the theory of freedom of
expression involves more than a technique for arriving at better social
judgments through democratic procedures. It comprehends a vision of
society, a faith and a whole way of life. The theory grew out of an age that
was awakened and invigorated by the idea of new society in which man's
mind was free, his fate determined by his own powers of reason, and his
prospects of creating a rational and enlightened civilization virtually
unlimited. It is put forward as a prescription for attaining a creative,
progressive, exciting and intellectually robust community. It contemplates a
mode of life that, through encouraging toleration, skepticism, reason and
initiative, will allow man to realize his full potentialities. It spurns the
alternative of a society that is tyrannical, conformist, irrational and
stagnant." 23
From the language of the specified constitutional provision, it would appear
that the right is not susceptible of any limitation. No law may be passed
abridging the freedom of speech and of the press. The realities of life in a
complex society preclude however a literal interpretation. Freedom of
expression is not an absolute. It would be too much to insist that at all times
and under all circumstances it should remain unfettered and unrestrained.
There are other societal values that press for recognition. How is it to be
limited then?
This Court spoke, in Cabansag v. Fernandez; 24 of two tests that may supply
an acceptable criterion for permissible restriction. Thus: "These are the 'clear
and present danger' rule and the 'dangerous tendency' rule. The first, as
interpreted in a number of cases, means that the evil consequence of the
comment or utterance must be extremely serious and the degree of
imminence extremely high' before the utterance can be punished. The
danger to be guarded against is the 'substantive evil' sought to be
prevented." It has the advantage of establishing according to the above
decision "a definite rule in constitutional law. It provides the criterion as to
what words may be public established."

217
The Cabansag case likewise referred to the other test, the "dangerous
tendency" rule and explained it thus: "If the words uttered create a
dangerous tendency which the state has a right to prevent, then such words
are punishable. It is not necessary that some definite or immediate acts of
force, violence, or unlawfulness be advocated. It is sufficient that such acts
be advocated in general terms. Nor is it necessary that the language used be
reasonably calculated to incite persons to acts of force, violence, or
unlawfulness. It is sufficient if the natural tendency and probable effect of the
utterance be to bring about the substantive evil which the legislative body
seeks to prevent.
We posed the issue thus: "Has the letter of Cabansag created a sufficient
danger to a fair administration of justice? Did its remittance to the PCAC
create a danger sufficiently imminent to come under the two rules mentioned
above?" The choice of this Court was manifest and indisputable. It adopted
the clear and present danger test. As a matter of fact, in an earlier
decision, Primicias v. Fugoso, 25 there was likewise an implicit acceptance of
the clear and present danger doctrine.
Why repression is permissible only when the danger of substantive evil is
present is explained by Justice Branders thus: ... the evil apprehended is so
imminent that it may befall before there is opportunity for full discussion. If
there be time to expose through discussion the falsehood and fallacies, to
avert the evil by the processes of education, the remedy to be applied is
more speech, not enforced silence." 26 For him the apprehended evil must be
"relatively serious." For "[prohibition] of free speech and assembly is a
measure so stringent that it would be inappropriate as the means for averting
a relatively trivial harm to society." Justice Black would go further. He would
require that the substantive evil be "extremely serious." 27 Only thus may
there be a realization of the ideal envisioned by Cardozo: "There shall be no
compromise of the freedom to think one's thoughts and speak them, except
at those extreme borders where thought merges into action." 28 It received its
original formulation from Holmes. Thus: "The question in every case is
whether the words used in such circumstances and of such a nature as to
create a clear and present danger that they will bring about the substantive
evils that Congress has a right to prevent. It is a question of proximity and
degree." 29

This test then as a limitation on freedom of expression is justified by the

danger or evil a substantive character that the state has a right to prevent.
Unlike the dangerous tendency doctrine, the danger must not only be clear
but also present. The term clear seems to point to a causal connection with
the danger of the substantially evil arising from the utterance questioned.
Present refers to the time element. It used to be identified with imminent and
immediate danger. The danger must not only be probable but very likely
inevitable.
4. How about freedom of assembly? The Bill of Rights as thus noted
prohibits abridgment by law of freedom of speech or of the press. It likewise
extends the same protection to the right of the people peaceably to
assemble. As was pointed out by Justice Malcolm in the case of United
States v. Bustos, 30 this right is a necessary consequence of our republican
institution and complements the right of free speech. Assembly means a right
on the part of citizens to meet peaceably for consultation in respect to public
affairs. From the same Bustos opinion: "Public policy, the welfare of society
and orderly administration of government have demanded protection for
public opinion." To paraphrase the opinion of Justice Rutledge speaking for
the majority in Thomas v. Collins,31 it was not by accident or coincidence that
the rights to freedom of speech and of the press were coupled in a single
guaranty with 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. They are cognate rights and the assurance afforded by the
clause of this section of the Bill of Rights wherein they are contained, applies
to all. As emphatically put in the leading case of United States v.
Cruikshank, 32 "the very idea of a government, republican in form, implies a
right on the part of its citizens to meet peaceably for consultation in respect
to public affairs and to petition for redress of grievances." As in the case of
freedom of expression, this right is not to be limited, much less denied,
except on a showing of a clear and present danger of a substantive evil that
Congress has a right to prevent.
5. Our Constitution likewise recognizes the freedom to form association for
purposes not contrary to law. 33 With or without a constitutional provision of
this character, it may be assumed that the freedom to organize or to be a
member of any group or society exists. With this explicit provision, whatever
doubts there may be on the matter are dispelled. Unlike the cases of other

218
guarantee which are mostly American in origin, this particular freedom has
an indigenous cast. It can trace its origin to the Malolos Constitution.
In the United States, in the absence of an explicit provision of such
character, it is the view of Justice Douglas that it is primarily the first
amendment of her Constitution, which safeguards freedom of speech and of
the press, of assembly and of petition "that provides [associations] with the
protection they need if they are to remain viable and continue to contribute to
our Free Society." 34 He adopted the view of De Tocqueville on the
importance and the significance of the freedom to associate. Thus: "The
most natural privilege of man, next to the right of acting for himself, is that of
combining his exertions with those of his fellow creatures and of acting in
common with them. The right of association therefore appears to me almost
inalienable in its nature as the right of personal liberty. No legislator can
attack it without impairing the foundation of society." 35
There can be no dispute as to the soundness of the above observation of De
Tocqueville. Since man lives in social it would be a barren existence if he
could not freely associate with others of kindred persuasion or of congenial
frame of mind. As a matter of fact, the more common form of associations
may be likely to be fraternal, cultural, social or religious. Thereby, for almost
everybody, save for those exceptional few who glory in aloofness and
isolation life is enriched and becomes more meaningful.
In a sense, however, the stress on this freedom of association should be on
its political significance. If such a right were non-existent then the likelihood
of a one-party government is more than a possibility. Authoritarianism may
become unavoidable. Political opposition will simply cease to exist; minority
groups may be outlawed, constitutional democracy as intended by the
Constitution may well become a thing of the past.
Political parties which, as is originally the case, assume the role alternately
of being in the majority or in the minority as the will of the electorate dictates,
will lose their constitutional protection. It is undeniable therefore, that the
utmost scope should be afforded this freedom of association.
It is indispensable not only for its enhancing the respect that should be
accorded a human personality but equally so for its assurance that the
wishes of any group to oppose whatever for the moment is the party in

power and with the help of the electorate to set up its own program of
government would not be nullified or frustrated. To quote from Douglas
anew: "Justice Frankfurter thought that political and academic affiliations
have a preferred position under the due process version of the First
Amendment. But the associational rights protected by the First Amendment
are in my view much broader and cover the entire spectrum in political
ideology as well as in art, in journalism, in teaching, and in religion. In my
view, government can neither legislate with respect to nor probe the
intimacies of political, spiritual, or intellectual relationships in the myriad of
lawful societies and groups, whether popular or unpopular, that exist in this
country." 36
Nonetheless, the Constitution limits this particular freedom in the sense that
there could be an abridgment of the right to form associations or societies
when their purposes are "contrary to law". How should the limitation "for
purposes not contrary to law" be interpreted? It is submitted that it is another
way of expressing the clear and present danger rule for unless an
association or society could be shown to create an imminent danger to public
safety, there is no justification for abridging the right to form association
societies.37 As was so aptly stated: "There is no other course consistent with
the Free Society envisioned by the First Amendment. For the views a citizen
entertains, the beliefs he harbors, the utterances he makes, the ideology he
embraces, and the people he associates with are no concern to government
until and unless he moves into action. That article of faith marks indeed
the main difference between the Free Society which we espouse and the
dictatorships both on the Left and on the Right." 38 With the above principles
in mind, we now consider the validity of the prohibition in Republic Act No.
4880 of the too early nomination of candidates and the limitation found
therein on the period of election campaign or partisan political activity alleged
by petitioners to offend against the rights of free speech, free press, freedom
of assembly and freedom of association. In effect what are asked to do is to
declare the act void on its face evidence having been introduced as to its
actual operation. There is respectable authority for the court having the
power to so act. Such fundamental liberties are accorded so high a place in
our constitutional scheme that any alleged infringement manifest in the
wording of statute cannot be allowed to pass unnoticed. 39
In considering whether it is violative of any of the above rights, we cannot
ignore of course the legislative declaration that its enactment was in

219
response to a serious substantive evil affecting the electoral process, not
merely in danger of happening, but actually in existence, and likely to
continue unless curbed or remedied. To assert otherwise would be to close
one's eyes to the realities of the situation. Nor can we ignore the express
legislative purpose apparent in the proviso "that simple expressions of
opinion and thoughts concerning the election shall not be considered as part
of an election campaign," and in the other proviso "that nothing herein stated
shall be understood to prevent any person from expressing his views on
current political problems or issues, or from mentioning the names of the
candidates for public office whom he supports." Such limitations qualify the
entire provision restricting the period of an election campaign or partisan
political activity.
The prohibition of too early nomination of candidates presents a question
that is not too formidable in character. According to the act: "It shall be
unlawful for any political party political committee, or political group to
nominate candidates for any elective public officio voted for at large earlier
than one hundred and fifty days immediately preceding an election, and for
any other elective public, office earlier than ninety days immediately
preceding an election." 40
The right of association is affected. Political parties have less freedom as to
the time during which they may nominate candidates; the curtailment is not
such, however, as to render meaningless such a basic right. Their scope of
legitimate activities, save this one, is not unduly narrowed. Neither is there
infringement of their freedom to assemble. They can do so, but not for such
a purpose. We sustain in validity. We do so unanimously.
The limitation on the period of "election campaign" or "partisan political
activity" calls for a more intensive scrutiny. According to Republic Act No.
4880: "It is unlawful for any person whether or not a voter or candidate, or for
any group or association of persons whether or not a political party or
political committee, to engage in an election campaign or partisan political
activity except during the period of one hundred twenty days immediately
preceding an election involving a public office voted for at large and ninety
days immediately preceding an election for any other elective public office.
The term 'candidate' refers to any person aspiring for or seeking an elective
public office, regardless of whether or not said person has already filed his
certificate of candidacy or has been nominated by any political party as its

candidate. The term 'election campaign' or 'partisan political activity' refers to

acts designed to have a candidate elected or not or promote the candidacy
of a person or persons to a public office ..."
If that is all there is to that provision, it suffers from the fatal constitutional
infirmity of vagueness and may be stricken down. What other conclusion can
there be extending as it does to so wide and all-encompassing a front that
what is valid, being a legitimate exercise of press freedom as well as
freedom of assembly, becomes prohibited? That cannot be done; such an
undesirable eventuality, this Court cannot allow to pass.
It is a well-settled principle that stricter standard of permissible statutory
vagueness may be applied to a statute having inhibiting effect on speech; a
man may the less be required to act at his peril here, because the free
dissemination of ideas may be the loser.41 Where the statutory provision then
operates to inhibit the exercise of individual freedom affirmatively protected
by the Constitution, the imputation of vagueness sufficient to invalidate the
statute is inescapable. 42 The language of Justice Douglas, both appropriate
and vigorous, comes to mind: "Words which are vague and fluid ... may be
as much of a trap for the innocent as the ancient laws of Caligula." 43Nor is
the reason difficult to discern: ."These freedoms are delicate and vulnerable,
as well as supremely precious in our society. The threat of sanctions may
deter their exercise almost as potently as the actual application of
sanctions." 44
7. The constitutional objections are thus formidable. It cannot be denied that
the limitations thus imposed on the constitutional rights of free speech and
press, of assembly, and of association cut deeply, into their substance. This
on the one hand.
On the other, it cannot be denied either that evils substantial in character
taint the purity of the electoral process. There can be under the
circumstances then no outright condemnation of the statute. It could not be
said to be unwarranted, much less arbitrary. There is need for refraining from
the outright assumption that the constitutional infirmity is apparent from a
mere reading thereof.
For under circumstances that manifest abuses of the gravest character,
remedies much more drastic than what ordinarily would suffice would indeed

220
be called for. The justification alleged by the proponents of the measures
weighs heavily with the members of the Court, though in varying degrees, in
the appraisal of the aforesaid restrictions to which such precious freedoms
are subjected. They are not unaware of the clear and present danger that
calls for measures that may bear heavily on the exercise of the cherished
rights of expression, of assembly, and of association.
This is not to say, that once such a situation is found to exist there is no limit
to the allowable limitations on such constitutional rights. The clear and
present danger doctrine rightly viewed requires that not only should there be
an occasion for the imposition of such restrictions but also that they be
limited in scope.
There are still constitutional questions of a serious character then to be
faced. The practices which the act identifies with "election campaign" or
"partisan political activity" must be such that they are free from the taint of
being violative of free speech, free press, freedom of assembly, and freedom
of association. What removes the sting from constitutional objection of
vagueness is the enumeration of the acts deemed included in the terms
"election campaign" or "partisan political activity."
They are: "(a) Forming organizations, associations, clubs, committees or
other groups of persons for the purpose of soliciting votes and/or undertaking
any campaign or propaganda for or against a party or candidate; (b) holding
political conventions, caucuses, conferences, meetings, rallies, parades, or
other similar assemblies, for the purpose of soliciting votes and/or
undertaking any campaign or propaganda for or against a candidate or party;
(c) making speeches, announcements or commentaries or holding interviews
for or against the election or any party or candidate for public office; (d)
publishing or distributing campaign literature or materials; (e) directly or
indirectly soliciting votes and/or undertaking any campaign or propaganda for
or against any party; (f) giving, soliciting, or receiving contributions for
election campaign purposes, either directly or indirectly." 45 As thus limited
the objection that may be raised as to vagueness has been minimized, if not
totally set at rest. 46
8. This Court, with the aforementioned five Justices unable to agree, is of the
view that no unconstitutional infringement exists insofar as the formation of
organization, associations, clubs, committees, or other groups of persons for

the purpose of soliciting votes or undertaking any campaign or propaganda

or both for or against a candidate or party is restricted 47 and that the
prohibition against giving, soliciting, or receiving contribution for election
purposes, either directly or indirectly, is equally free from constitutional
infirmity. 48
The restriction on freedom of assembly as confined to holding political
conventions, caucuses, conferences, meetings, rallies, parades or other
similar assemblies for the purpose of soliciting votes or undertaking any
campaign or propaganda or both for or against a candidate or
party, 49 leaving untouched all other legitimate exercise of such poses a more
difficult question. Nevertheless, after a thorough consideration, and with the
same Justices entertaining the opposite conviction, we reject the contention
that it should be annulled. Candor compels the admission that the writer of
this opinion suffers from the gravest doubts. For him, such statutory
prescription could very well be within the outermost limits of validity, beyond
which lies the abyss of unconstitutionality.
The other acts, likewise deemed included in "election campaign" or "partisan
political activity" tax to the utmost the judicial predisposition to view with
sympathy legislative efforts to regulate election practices deemed inimical,
because of their collision with the preferred right of freedom of expression.
From the outset, such provisions did occasion divergence of views among
the members of the Court. Originally only a minority was for their being
adjudged as invalid. It is not so. any more. 50 This is merely to emphasize
that the scope of the curtailment to which freedom of expression may be
subjected is not foreclosed by the recognition of the existence of a clear and
present danger of a substantive evil, the debasement of the electoral
process.
The majority of the Court is thus of the belief that the solicitation or
undertaking of any campaign or propaganda whether directly or indirectly, by
an individual, 51 the making of speeches, announcements or commentaries or
holding interview for or against the election for any party or candidate for
public office, 52 or the publication or distribution of campaign literature or
materials, 53 suffer from the corrosion of invalidity. It lacks however one more
affirmative vote to call for a declaration of unconstitutionality.

221
This is not to deny that Congress was indeed called upon to seek remedial
measures for the far-from-satisfactory condition arising from the too-early
nomination of candidates and the necessarily prolonged, political campaigns.
The direful consequences and the harmful effects on the public interest with
the vital affairs of the country sacrificed many a time to purely partisan
pursuits were known to all. Moreover, it is no exaggeration to state that
violence and even death did frequently occur because of the heat
engendered by such political activities. Then, too, the opportunity for
dishonesty and corruption, with the right to suffrage being bartered, was
further magnified.

In a 1968 opinion, the American Supreme Court made clear that the absence
of such reasonable and definite standards in a legislation of its character is
fatal. 54 Where, as in the case of the above paragraphs, the majority of the
Court could discern "an over breadth that makes possible oppressive or
capricious application" 55 of the statutory provisions, the line dividing the valid
from the constitutionally infirm has been crossed. Such provisions offend the
constitutional principle that "a governmental purpose constitutionally subject
to control or prevent activities state regulation may not be achieved by
means which sweep unnecessarily broadly and thereby invade the area of
protected freedoms. 56

Under the police power then, with its concern for the general welfare and
with the commendable aim of safe-guarding the right of suffrage, the
legislative body must have felt impelled to impose the foregoing restrictions.
It is understandable for Congress to believe that without the limitations thus
set forth in the challenged legislation, the laudable purpose of Republic Act
No. 4880 would be frustrated and nullified. Whatever persuasive force such
approach may command failed to elicit the assent of a majority of the Court.
This is not to say that the conclusion reached by the minority that the above
poisons of the statute now assailed has passed the constitutional test is
devoid of merit.

It is undeniable, therefore, that even though the governmental purposes be

legitimate and substantial, they cannot be pursued by means that broadly
stifle fundamental personal liberties when the end can be more narrowly
achieved. 57 For precision of regulation is the touchstone in an area so
closely related to our most precious freedoms. 58

It only indicates that for the majority, the prohibition of any speeches,
announcements or commentaries, or the holding of interviews for or against
the election of any party or candidate for public office and the prohibition of
the publication or distribution of campaign literature or materials, against the
solicitation of votes whether directly or indirectly, or the undertaking of any
campaign literature or propaganda for or against any candidate or party is
repugnant to a constitutional command. To that extent, the challenged
statute prohibits what under the Constitution cannot by any law be abridged.

Such a conclusion does not find favor with the other members of the Court.
For this minority group, no judgment of nullity insofar as the challenged
sections are concerned is called for. It cannot accept the conclusion that the
limitations thus imposed on freedom of expression vitiated by their
latitudinarian scope, for Congress was not at all insensible to the problem
that an all-encompassing coverage of the practices sought to be restrained
would seriously pose.

More specifically, in terms of the permissible scope of legislation that

otherwise could be justified under the clear and present danger doctrine, it is
the consideration opinion of the majority, though lacking the necessary vote
for an adjudication of invalidity, that the challenged statute could have been
more narrowly drawn and the practices prohibited more precisely delineated
to satisfy the constitutional requirements as to a valid limitation under the
clear and present danger doctrine.

Such an approach finds support in the exposition made by the author of the
measure, Senator Lorenzo M. Taada, appearing before us as amicus
curiae. He did clearly explain that such provisions were deemed by the
legislative body to be part and parcel of the necessary and appropriate
response not merely to a clear and present danger but to the actual
existence of a grave and substantive evil of excessive partisanship,
dishonesty and corruption as well as violence that of late has invariably
marred election campaigns and partisan political activities in this country. He
did invite our attention likewise to the well-settled doctrine that in the choice

Under the circumstances then, a majority of the Court feels compelled to

view the statutory provisions in question as unconstitutional on their face
inasmuch as they appear to range too widely and indiscriminately across the
fundamental liberties associated with freedom of the mind. 59

222
of remedies for an admitted malady requiring governmental action, on the
legislature primarily rests the responsibility. Nor should the cure prescribed
by it, unless clearly repugnant to fundamental rights, be ignored or
disregarded.
More than that, he would stress the two provisos already mentioned,
precisely placed in the state as a manifestation of the undeniable legislative
determination not to transgress the preferred freedom of speech, of press, of
assembly and of association. It is thus provided: "That simple expressions or
opinion and thoughts concerning the election shall not be considered as part
of an election campaign [and that nothing in the Act] shall be understood to
prevent any person from expressing his views on current political problems
or issues, or from mentioning the names of the candidates for public office
whom he supports. 60 If properly implemented then, as it ought to, the barrier
to free, expression becomes minimal and far from unwarranted.
For the minority of the Court, all of the above arguments possess sufficient
persuasive force to blunt whatever cutting edge may be ascribed to the fears
entertained that Congress failed to abide by what the Constitution
commands as far as freedom of the mind and of association are concerned.
It is its opinion that it would be premature to say the least, for a judgment of
nullity of any provision found in Republic Act No. 4880. The need for
adjudication arises only if in the implementation of the Act, there is in fact an
unconstitutional application of its provisions. Nor are we called upon, under
this approach, to anticipate each and every problem that may arise. It is time
enough to consider it when there is in fact an actual, concrete case that
requires an exercise of judicial power.
9. To recapitulate, we give due recognition to the legislative concern to
cleanse, and, if possible, render spotless, the electoral process. There is full
acceptance by the Court of the power of Congress, under narrowly drawn
legislation to impose the necessary restrictions to what otherwise would be
liberties traditionally accorded the widest scope and the utmost deference,
freedom of speech and of the press, of assembly, and of association. We
cannot, however, be recreant to the trust reposed on us; we are called upon
to safeguard individual rights. In the language of Justice Laurel: "This Court
is perhaps the last bulwark of constitutional government. It shall not obstruct
the popular will as manifested through proper organs... But, in the same way

that it cannot renounce the life breathed into it by the Constitution, so may it
not forego its obligation, in proper cases, to apply the necessary,..." 61
We recognize the wide discretion accorded Congress to protect vital
interests. Considering the responsibility incumbent on the judiciary, it is not
always possible, even with the utmost sympathy shown for the legislative
choice of means to cure an admitted evil, that the legislative judgment
arrived at, with its possible curtailment of the preferred freedoms, be
accepted uncritically. There may be times, and this is one of them, with the
majority, with all due reject to a coordinate branch, unable to extend their
approval to the aforesaid specific provisions of one of the sections of the
challenged statute. The necessary two-third vote, however, not being
obtained, there is no occasion for the power to annul statutes to come into
play.
Such being the case, it is the judgment of this Court that Republic Act No.
4880 cannot be declared unconstitutional.
WHEREFORE, the petition is dismissed and the writ of prayed for denied.
Without costs.
Concepcion, C.J., Reyes, J.B.L., Makalintal and Teehankee, JJ., concur in
the result.

223
pursuant to paragraph 2, Section 24, Article III of the By-Laws of the IBP,
which reads:

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
A.M. No. 1928 August 3, 1978
In the Matter of the IBP Membership Dues Delinquency of Atty.
MARCIAL A. EDILION (IBP Administrative Case No. MDD-1)
RESOLUTION

CASTRO, C.J.:
The respondent Marcial A. Edillon is a duly licensed practicing attorney in the
Philippines.
On November 29, 1975, the Integrated Bar of the Philippines (IBP for short)
Board of Governors unanimously adopted Resolution No. 75-65 in
Administrative Case No. MDD-1 (In the Matter of the Membership Dues
Delinquency of Atty. Marcial A. Edillon) recommending to the Court the
removal of the name of the respondent from its Roll of Attorneys for
"stubborn refusal to pay his membership dues" to the IBP since the latter's
constitution notwithstanding due notice.
On January 21, 1976, the IBP, through its then President Liliano B. Neri,
submitted the said resolution to the Court for consideration and approval,

.... Should the delinquency further continue until the following

June 29, the Board shall promptly inquire into the cause or
causes of the continued delinquency and take whatever
action it shall deem appropriate, including a recommendation
to the Supreme Court for the removal of the delinquent
member's name from the Roll of Attorneys. Notice of the
action taken shall be sent by registered mail to the member
and to the Secretary of the Chapter concerned.
On January 27, 1976, the Court required the respondent to comment on the
resolution and letter adverted to above; he submitted his comment on
February 23, 1976, reiterating his refusal to pay the membership fees due
from him.
On March 2, 1976, the Court required the IBP President and the IBP Board
of Governors to reply to Edillon's comment: on March 24, 1976, they
submitted a joint reply.
Thereafter, the case was set for hearing on June 3, 1976. After the hearing,
the parties were required to submit memoranda in amplification of their oral
arguments. The matter was thenceforth submitted for resolution.
At the threshold, a painstaking scrutiny of the respondent's pleadings would
show that the propriety and necessity of the integration of the Bar of the
Philippines are in essence conceded. The respondent, however, objects to
particular features of Rule of Court 139-A (hereinafter referred to as the
Court Rule) 1 in accordance with which the Bar of the Philippines was
integrated and to the provisions of par. 2, Section 24, Article III, of the IBP
By-Laws (hereinabove cited).
The authority of the IBP Board of Governors to recommend to the Supreme
Court the removal of a delinquent member's name from the Roll of Attorneys
is found in par. 2 Section 24, Article Ill of the IBP By-Laws (supra), whereas
the authority of the Court to issue the order applied for is found in Section 10
of the Court Rule, which reads:

224
SEC. 10. Effect of non-payment of dues. Subject to the
provisions of Section 12 of this Rule, default in the payment of
annual dues for six months shall warrant suspension of
membership in the Integrated Bar, and default in such
payment for one year shall be a ground for the removal of the
name of the delinquent member from the Roll of Attorneys.
The all-encompassing, all-inclusive scope of membership in the IBP is stated
in these words of the Court Rule:
SECTION 1. Organization. There is hereby organized an
official national body to be known as the 'Integrated Bar of the
Philippines,' composed of all persons whose names now
appear or may hereafter be included in the Roll of Attorneys of
the Supreme Court.
The obligation to pay membership dues is couched in the following words of
the Court Rule:
SEC. 9. Membership dues. Every member of the Integrated
Bar shall pay such annual dues as the Board of Governors
shall determine with the approval of the Supreme Court. ...
The core of the respondent's arguments is that the above provisions
constitute an invasion of his constitutional rights in the sense that he is being
compelled, as a pre-condition to maintaining his status as a lawyer in good
standing, to be a member of the IBP and to pay the corresponding dues, and
that as a consequence of this compelled financial support of the said
organization to which he is admittedly personally antagonistic, he is being
deprived of the rights to liberty and property guaranteed to him by the
Constitution. Hence, the respondent concludes, the above provisions of the
Court Rule and of the IBP By-Laws are void and of no legal force and effect.
The respondent similarly questions the jurisdiction of the Court to strike his
name from the Roll of Attorneys, contending that the said matter is not
among the justiciable cases triable by the Court but is rather of an
"administrative nature pertaining to an administrative body."

The case at bar is not the first one that has reached the Court relating to
constitutional issues that inevitably and inextricably come up to the surface
whenever attempts are made to regulate the practice of law, define the
conditions of such practice, or revoke the license granted for the exercise of
the legal profession.
The matters here complained of are the very same issues raised in a
previous case before the Court, entitled "Administrative Case No. 526, In the
Matter of the Petition for the Integration of the Bar of the Philippines, Roman
Ozaeta, et al., Petitioners." The Court exhaustively considered all these
matters in that case in its Resolution ordaining the integration of the Bar of
the Philippines, promulgated on January 9, 1973. The Court there made the
unanimous pronouncement that it was
... fully convinced, after a thoroughgoing conscientious study
of all the arguments adduced in Adm. Case No. 526 and the
authoritative materials and the mass of factual data contained
in the exhaustive Report of the Commission on Bar
Integration, that the integration of the Philippine Bar is
'perfectly constitutional and legally unobjectionable'. ...
Be that as it may, we now restate briefly the posture of the Court.
An "Integrated Bar" is a State-organized Bar, to which every lawyer must
belong, as distinguished from bar associations organized by individual
lawyers themselves, membership in which is voluntary. Integration of the Bar
is essentially a process by which every member of the Bar is afforded an
opportunity to do his share in carrying out the objectives of the Bar as well as
obliged to bear his portion of its responsibilities. Organized by or under the
direction of the State, an integrated Bar is an official national body of which
all lawyers are required to be members. They are, therefore, subject to all
the rules prescribed for the governance of the Bar, including the requirement
of payment of a reasonable annual fee for the effective discharge of the
purposes of the Bar, and adherence to a code of professional ethics or
professional responsibility breach of which constitutes sufficient reason for
investigation by the Bar and, upon proper cause appearing, a
recommendation for discipline or disbarment of the offending member. 2

225
The integration of the Philippine Bar was obviously dictated by overriding
considerations of public interest and public welfare to such an extent as
more than constitutionally and legally justifies the restrictions that integration
imposes upon the personal interests and personal convenience of individual
lawyers. 3

individuals are subordinated. Liberty is a blessing without which life is a

misery, but liberty should not be made to prevail over authority because then
society win fall into anarchy (Calalang vs. Williams, 70 Phil. 726). It is an
undoubted power of the State to restrain some individuals from all freedom,
and all individuals from some freedom.

Apropos to the above, it must be stressed that all legislation directing the
integration of the Bar have been uniformly and universally sustained as a
valid exercise of the police power over an important profession. The practice
of law is not a vested right but a privilege, a privilege moreover clothed with
public interest because a lawyer owes substantial duties not only to his
client, but also to his brethren in the profession, to the courts, and to the
nation, and takes part in one of the most important functions of the State
the administration of justice as an officer of the court. 4 The practice of law
being clothed with public interest, the holder of this privilege must submit to a
degree of control for the common good, to the extent of the interest he has
created. As the U. S. Supreme Court through Mr. Justice Roberts explained,
the expression "affected with a public interest" is the equivalent of "subject to
the exercise of the police power" (Nebbia vs. New York, 291 U.S. 502).

But the most compelling argument sustaining the constitutionality and validity
of Bar integration in the Philippines is the explicit unequivocal grant of
precise power to the Supreme Court by Section 5 (5) of Article X of the 1973
Constitution of the Philippines, which reads:

When, therefore, Congress enacted Republic Act No. 6397 5 authorizing the
Supreme Court to "adopt rules of court to effect the integration of the
Philippine Bar under such conditions as it shall see fit," it did so in the
exercise of the paramount police power of the State. The Act's avowal is to
"raise the standards of the legal profession, improve the administration of
justice, and enable the Bar to discharge its public responsibility more
effectively." Hence, the Congress in enacting such Act, the Court in ordaining
the integration of the Bar through its Resolution promulgated on January 9,
1973, and the President of the Philippines in decreeing the constitution of the
IBP into a body corporate through Presidential Decree No. 181 dated May 4,
1973, were prompted by fundamental considerations of public welfare and
motivated by a desire to meet the demands of pressing public necessity.
The State, in order to promote the general welfare, may interfere with and
regulate personal liberty, property and occupations. Persons and property
may be subjected to restraints and burdens in order to secure the general
prosperity and welfare of the State (U.S. vs. Gomez Jesus, 31 Phil 218), for,
as the Latin maxim goes, "Salus populi est supreme lex." The public welfare
is the supreme law. To this fundamental principle of government the rights of

Sec. 5. The Supreme Court shall have the following powers:

xxx xxx xxx
(5) Promulgate rules concerning pleading, practice, and pro.
procedure in all courts, and the admission to the practice of
law and the integration of the Bar ...,
and Section 1 of Republic Act No. 6397, which reads:
SECTION 1. Within two years from the approval of this Act,
the Supreme Court may adopt rules of Court to effect the
integration of the Philippine Bar under such conditions as it
shall see fit in order to raise the standards of the legal
profession, improve the administration of justice, and enable
the Bar to discharge its public responsibility more effectively.
Quite apart from the above, let it be stated that even without the enabling Act
(Republic Act No. 6397), and looking solely to the language of the provision
of the Constitution granting the Supreme Court the power "to promulgate
rules concerning pleading, practice and procedure in all courts, and the
admission to the practice of law," it at once becomes indubitable that this
constitutional declaration vests the Supreme Court with plenary power in all
cases regarding the admission to and supervision of the practice of law.
Thus, when the respondent Edillon entered upon the legal profession, his
practice of law and his exercise of the said profession, which affect the
society at large, were (and are) subject to the power of the body politic to

226
require him to conform to such regulations as might be established by the
proper authorities for the common good, even to the extent of interfering with
some of his liberties. If he did not wish to submit himself to such reasonable
interference and regulation, he should not have clothed the public with an
interest in his concerns.
On this score alone, the case for the respondent must already fall.
The issues being of constitutional dimension, however, we now concisely
deal with them seriatim.
1. The first objection posed by the respondent is that the Court is without
power to compel him to become a member of the Integrated Bar of the
Philippines, hence, Section 1 of the Court Rule is unconstitutional for it
impinges on his constitutional right of freedom to associate (and not to
associate). Our answer is: To compel a lawyer to be a member of the
Integrated Bar is not violative of his constitutional freedom to associate. 6
Integration does not make a lawyer a member of any group of which he is
not already a member. He became a member of the Bar when he passed the
Bar examinations. 7 All that integration actually does is to provide an official
national organization for the well-defined but unorganized and incohesive
group of which every lawyer is a ready a member.8
Bar integration does not compel the lawyer to associate with anyone. He is
free to attend or not attend the meetings of his Integrated Bar Chapter or
vote or refuse to vote in its elections as he chooses. The only compulsion to
which he is subjected is the payment of annual dues. The Supreme Court, in
order to further the State's legitimate interest in elevating the quality of
professional legal services, may require that the cost of improving the
profession in this fashion be shared by the subjects and beneficiaries of the
regulatory program the lawyers. 9
Assuming that the questioned provision does in a sense compel a lawyer to
be a member of the Integrated Bar, such compulsion is justified as an
exercise of the police power of the State. 10
2. The second issue posed by the respondent is that the provision of the
Court Rule requiring payment of a membership fee is void. We see nothing

in the Constitution that prohibits the Court, under its constitutional power and
duty to promulgate rules concerning the admission to the practice of law and
the integration of the Philippine Bar (Article X, Section 5 of the 1973
Constitution) which power the respondent acknowledges from requiring
members of a privileged class, such as lawyers are, to pay a reasonable fee
toward defraying the expenses of regulation of the profession to which they
belong. It is quite apparent that the fee is indeed imposed as a regulatory
measure, designed to raise funds for carrying out the objectives and
purposes of integration. 11
3. The respondent further argues that the enforcement of the penalty
provisions would amount to a deprivation of property without due process
and hence infringes on one of his constitutional rights. Whether the practice
of law is a property right, in the sense of its being one that entitles the holder
of a license to practice a profession, we do not here pause to consider at
length, as it clear that under the police power of the State, and under the
necessary powers granted to the Court to perpetuate its existence, the
respondent's right to practise law before the courts of this country should be
and is a matter subject to regulation and inquiry. And, if the power to impose
the fee as a regulatory measure is recognize, then a penalty designed to
enforce its payment, which penalty may be avoided altogether by payment,
is not void as unreasonable or arbitrary. 12
But we must here emphasize that the practice of law is not a property right
but a mere privilege, 13 and as such must bow to the inherent regulatory
power of the Court to exact compliance with the lawyer's public
responsibilities.
4. Relative to the issue of the power and/or jurisdiction of the Supreme Court
to strike the name of a lawyer from its Roll of Attorneys, it is sufficient to state
that the matters of admission, suspension, disbarment and reinstatement of
lawyers and their regulation and supervision have been and are indisputably
recognized as inherent judicial functions and responsibilities, and the
authorities holding such are legion. 14
In In Re Sparks (267 Ky. 93, 101 S.W. (2d) 194), in which the report of the
Board of Bar Commissioners in a disbarment proceeding was confirmed and
disbarment ordered, the court, sustaining the Bar Integration Act of Kentucky,
said: "The power to regulate the conduct and qualifications of its officers

227
does not depend upon constitutional or statutory grounds. It is a power which
is inherent in this court as a court appropriate, indeed necessary, to the
proper administration of justice ... the argument that this is an arbitrary power
which the court is arrogating to itself or accepting from the legislative likewise
misconceives the nature of the duty. It has limitations no less real because
they are inherent. It is an unpleasant task to sit in judgment upon a brother
member of the Bar, particularly where, as here, the facts are disputed. It is a
grave responsibility, to be assumed only with a determination to uphold the
Ideals and traditions of an honorable profession and to protect the public
from overreaching and fraud. The very burden of the duty is itself a guaranty
that the power will not be misused or prostituted. ..."
The Court's jurisdiction was greatly reinforced by our 1973 Constitution when
it explicitly granted to the Court the power to "Promulgate rules concerning
pleading, practice ... and the admission to the practice of law and the
integration of the Bar ... (Article X, Sec. 5(5) the power to pass upon the
fitness of the respondent to remain a member of the legal profession is
indeed undoubtedly vested in the Court.
We thus reach the conclusion that the provisions of Rule of Court 139-A and
of the By-Laws of the Integrated Bar of the Philippines complained of are
neither unconstitutional nor illegal.
WHEREFORE, premises considered, it is the unanimous sense of the Court
that the respondent Marcial A. Edillon should be as he is hereby disbarred,
and his name is hereby ordered stricken from the Roll of Attorneys of the
Court.
Fernando, Teehankee, Barredo, Makasiar, Antonio, Muoz Palma, Aquino,
Concepcion, Jr., Santos, Fernandez and Guerrero, JJ., concur.

228

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 85279 July 28, 1989
SOCIAL SECURITY SYSTEM EMPLOYEES ASSOCIATION (SSSEA),
DIONISION T. BAYLON, RAMON MODESTO, JUANITO MADURA,
REUBEN ZAMORA, VIRGILIO DE ALDAY, SERGIO ARANETA, PLACIDO
AGUSTIN, VIRGILIO MAGPAYO, petitioner,
vs.
THE COURT OF APPEALS, SOCIAL SECURITY SYSTEM (SSS), HON.
CEZAR C. PERALEJO, RTC, BRANCH 98, QUEZON CITY, respondents.
Vicente T. Ocampo & Associates for petitioners.
CORTES, J:
Primarily, the issue raised in this petition is whether or not the Regional Trial
Court can enjoin the Social Security System Employees Association
(SSSEA) from striking and order the striking employees to return to work.
Collaterally, it is whether or not employees of the Social Security System
(SSS) have the right to strike.
The antecedents are as follows:
On June 11, 1987, the SSS filed with the Regional Trial Court of Quezon City
a complaint for damages with a prayer for a writ of preliminary injunction
against petitioners, alleging that on June 9, 1987, the officers and members
of SSSEA staged an illegal strike and baricaded the entrances to the SSS
Building, preventing non-striking employees from reporting for work and SSS

members from transacting business with the SSS; that the strike was
reported to the Public Sector Labor - Management Council, which ordered
the strikers to return to work; that the strikers refused to return to work; and
that the SSS suffered damages as a result of the strike. The complaint
prayed that a writ of preliminary injunction be issued to enjoin the strike and
that the strikers be ordered to return to work; that the defendants (petitioners
herein) be ordered to pay damages; and that the strike be declared illegal.
It appears that the SSSEA went on strike after the SSS failed to act on the
union's demands, which included: implementation of the provisions of the old
SSS-SSSEA collective bargaining agreement (CBA) on check-off of union
dues; payment of accrued overtime pay, night differential pay and holiday
pay; conversion of temporary or contractual employees with six (6) months
or more of service into regular and permanent employees and their
entitlement to the same salaries, allowances and benefits given to other
regular employees of the SSS; and payment of the children's allowance of
P30.00, and after the SSS deducted certain amounts from the salaries of the
employees and allegedly committed acts of discrimination and unfair labor
practices [Rollo, pp. 21-241].
The court a quo, on June 11, 1987, issued a temporary restraining order
pending resolution of the application for a writ of preliminary injunction [Rollo,
p. 71.] In the meantime, petitioners filed a motion to dismiss alleging the trial
court's lack of jurisdiction over the subject matter [Rollo, pp. 72-82.] To this
motion, the SSS filed an opposition, reiterating its prayer for the issuance of
a writ of injunction [Rollo, pp. 209-222]. On July 22,1987, in a four-page
order, the court a quo denied the motion to dismiss and converted the
restraining order into an injunction upon posting of a bond, after finding that
the strike was illegal [Rollo, pp. 83- 86]. As petitioners' motion for the
reconsideration of the aforesaid order was also denied on August 14, 1988
[Rollo, p. 94], petitioners filed a petition for certiorari and prohibition with
preliminary injunction before this Court. Their petition was docketed as G.R.
No. 79577. In a resolution dated October 21, 1987, the Court, through the
Third Division, resolved to refer the case to the Court of Appeals. Petitioners
filed a motion for reconsideration thereof, but during its pendency the Court
of Appeals on March 9,1988 promulgated its decision on the referred case
[Rollo, pp. 130-137]. Petitioners moved to recall the Court of Appeals'
decision. In the meantime, the Court on June 29,1988 denied the motion for
reconsideration in G.R. No. 97577 for being moot and academic. Petitioners'

229
motion to recall the decision of the Court of Appeals was also denied in view
of this Court's denial of the motion for reconsideration [Rollo, pp. 141- 143].
Hence, the instant petition to review the decision of the Court of Appeals
[Rollo, pp. 12-37].
Upon motion of the SSS on February 6,1989, the Court issued a temporary
restraining order enjoining the petitioners from staging another strike or from
pursuing the notice of strike they filed with the Department of Labor and
Employment on January 25, 1989 and to maintain the status quo [Rollo, pp.
151-152].
The Court, taking the comment as answer, and noting the reply and
supplemental reply filed by petitioners, considered the issues joined and the
case submitted for decision.
The position of the petitioners is that the Regional Trial Court had no
jurisdiction to hear the case initiated by the SSS and to issue the restraining
order and the writ of preliminary injunction, as jurisdiction lay with the
Department of Labor and Employment or the National Labor Relations
Commission, since the case involves a labor dispute.
On the other hand, the SSS advances the contrary view, on the ground that
the employees of the SSS are covered by civil service laws and rules and
regulations, not the Labor Code, therefore they do not have the right to
strike. Since neither the DOLE nor the NLRC has jurisdiction over the
dispute, the Regional Trial Court may enjoin the employees from striking.
In dismissing the petition for certiorari and prohibition with preliminary
injunction filed by petitioners, the Court of Appeals held that since the
employees of the SSS, are government employees, they are not allowed to
strike, and may be enjoined by the Regional Trial Court, which had
jurisdiction over the SSS' complaint for damages, from continuing with their
strike.
Thus, the sequential questions to be resolved by the Court in deciding
whether or not the Court of Appeals erred in finding that the Regional Trial
Court did not act without or in excess of jurisdiction when it took cognizance
of the case and enjoined the strike are as follows:

1. Do the employees of the SSS have the right to strike?

2. Does the Regional Trial Court have jurisdiction to hear the case initiated
by the SSS and to enjoin the strikers from continuing with the strike and to
order them to return to work?
These shall be discussed and resolved seriatim
I
The 1987 Constitution, in the Article on Social Justice and Human Rights,
provides that the State "shall guarantee the rights of all workers to selforganization, collective bargaining and negotiations, and peaceful concerted
activities, including the right to strike in accordance with law" [Art. XIII, Sec.
31].
By itself, this provision would seem to recognize the right of all workers and
employees, including those in the public sector, to strike. But the Constitution
itself fails to expressly confirm this impression, for in the Sub-Article on the
Civil Service Commission, it provides, after defining the scope of the civil
service as "all branches, subdivisions, instrumentalities, and agencies of the
Government, including government-owned or controlled corporations with
original charters," that "[t]he right to self-organization shall not be denied to
government employees" [Art. IX(B), Sec. 2(l) and (50)]. Parenthetically, the
Bill of Rights also provides that "[tlhe right of the people, including those
employed in the public and private sectors, to form unions, associations, or
societies for purposes not contrary to law shall not abridged" [Art. III, Sec. 8].
Thus, while there is no question that the Constitution recognizes the right of
government employees to organize, it is silent as to whether such
recognition also includes the right to strike.
Resort to the intent of the framers of the organic law becomes helpful in
understanding the meaning of these provisions. A reading of the proceedings
of the Constitutional Commission that drafted the 1987 Constitution would
show that in recognizing the right of government employees to organize, the
commissioners intended to limit the right to the formation of unions or
associations only, without including the right to strike.

230
Thus, Commissioner Eulogio R. Lerum, one of the sponsors of the provision
that "[tlhe right to self-organization shall not be denied to government
employees" [Art. IX(B), Sec. 2(5)], in answer to the apprehensions
expressed by Commissioner Ambrosio B. Padilla, Vice-President of the
Commission, explained:
MR. LERUM. I think what I will try to say will not take that long. When we
proposed this amendment providing for self-organization of government
employees, it does not mean that because they have the right to organize,
they also have the right to strike. That is a different matter. We are only
talking about organizing, uniting as a union. With regard to the right to strike,
everyone will remember that in the Bill of Rights, there is a provision that the
right to form associations or societies whose purpose is not contrary to law
shall not be abridged. Now then, if the purpose of the state is to prohibit the
strikes coming from employees exercising government functions, that could
be done because the moment that is prohibited, then the union which will go
on strike will be an illegal union. And that provision is carried in Republic Act
875. In Republic Act 875, workers, including those from the governmentowned and controlled, are allowed to organize but they are prohibited from
striking. So, the fear of our honorable Vice- President is unfounded. It does
not mean that because we approve this resolution, it carries with it the right
to strike. That is a different matter. As a matter of fact, that subject is now
being discussed in the Committee on Social Justice because we are trying to
find a solution to this problem. We know that this problem exist; that the
moment we allow anybody in the government to strike, then what will happen
if the members of the Armed Forces will go on strike? What will happen to
those people trying to protect us? So that is a matter of discussion in the
Committee on Social Justice. But, I repeat, the right to form an organization
does not carry with it the right to strike. [Record of the Constitutional
Commission, vol. 1, p. 569].
It will be recalled that the Industrial Peace Act (R.A. No. 875), which was
repealed by the Labor Code (P.D. 442) in 1974, expressly banned strikes by
employees in the Government, including instrumentalities exercising
governmental functions, but excluding entities entrusted with proprietary
functions:
.Sec. 11. Prohibition Against Strikes in the Government. The terms and
conditions of employment in the Government, including any political

subdivision or instrumentality thereof, are governed by law and it is declared

to be the policy of this Act that employees therein shall not strike for the
purpose of securing changes or modification in their terms and conditions of
employment. Such employees may belong to any labor organization which
does not impose the obligation to strike or to join in strike:Provided, however,
That this section shall apply only to employees employed in governmental
functions and not those employed in proprietary functions of the Government
including but not limited to governmental corporations.
No similar provision is found in the Labor Code, although at one time it
recognized the right of employees of government corporations established
under the Corporation Code to organize and bargain collectively and those in
the civil service to "form organizations for purposes not contrary to law" [Art.
244, before its amendment by B.P. Blg. 70 in 1980], in the same breath it
provided that "[t]he terms and conditions of employment of all government
employees, including employees of government owned and controlled
corporations, shall be governed by the Civil Service Law, rules and
regulations" [now Art. 276]. Understandably, the Labor Code is silent as to
whether or not government employees may strike, for such are excluded
from its coverage [Ibid]. But then the Civil Service Decree [P.D. No. 807], is
equally silent on the matter.
On June 1, 1987, to implement the constitutional guarantee of the right of
government employees to organize, the President issued E.O. No. 180
which provides guidelines for the exercise of the right to organize of
government employees. In Section 14 thereof, it is provided that "[t]he Civil
Service law and rules governing concerted activities and strikes in the
government service shall be observed, subject to any legislation that may be
enacted by Congress." The President was apparently referring to
Memorandum Circular No. 6, s. 1987 of the Civil Service Commission under
date April 21, 1987 which, "prior to the enactment by Congress of applicable
laws concerning strike by government employees ... enjoins under pain of
administrative sanctions, all government officers and employees from
staging strikes, demonstrations, mass leaves, walk-outs and other forms of
mass action which will result in temporary stoppage or disruption of public
service." The air was thus cleared of the confusion. At present, in the
absence of any legislation allowing government employees to strike,
recognizing their right to do so, or regulating the exercise of the right, they
are prohibited from striking, by express provision of Memorandum Circular

231
No. 6 and as implied in E.O. No. 180. [At this juncture, it must be stated that
the validity of Memorandum Circular No. 6 is not at issue].
But are employees of the SSS covered by the prohibition against strikes?
The Court is of the considered view that they are. Considering that under the
1987 Constitution "[t]he civil service embraces all branches, subdivisions,
instrumentalities, and agencies of the Government, including governmentowned or controlled corporations with original charters" [Art. IX(B), Sec. .2(l)
see also Sec. 1 of E.O. No. 180 where the employees in the civil service are
denominated as "government employees"] and that the SSS is one such
government-controlled corporation with an original charter, having been
created under R.A. No. 1161, its employees are part of the civil service
[NASECO v. NLRC, G.R. Nos. 69870 & 70295, November 24,1988] and are
covered by the Civil Service Commission's memorandum prohibiting strikes.
This being the case, the strike staged by the employees of the SSS was
illegal.
The statement of the Court in Alliance of Government Workers v. Minister of
Labor and Employment [G.R. No. 60403, August 3, 1:983, 124 SCRA 11 is
relevant as it furnishes the rationale for distinguishing between workers in
the private sector and government employees with regard to the right to
strike:
The general rule in the past and up to the present is that 'the terms and
conditions of employment in the Government, including any political
subdivision or instrumentality thereof are governed by law" (Section 11, the
Industrial Peace Act, R.A. No. 875, as amended and Article 277, the Labor
Code, P.D. No. 442, as amended). Since the terms and conditions of
government employment are fixed by law, government workers cannot use
the same weapons employed by workers in the private sector to secure
concessions from their employers. The principle behind labor unionism in
private industry is that industrial peace cannot be secured through
compulsion by law. Relations between private employers and their
employees rest on an essentially voluntary basis. Subject to the minimum
requirements of wage laws and other labor and welfare legislation, the terms
and conditions of employment in the unionized private sector are settled
through the process of collective bargaining. In government employment,
however, it is the legislature and, where properly given delegated power, the

administrative heads of government which fix the terms and conditions of

employment. And this is effected through statutes or administrative circulars,
rules, and regulations, not through collective bargaining agreements. [At p.
13; Emphasis supplied].
Apropos is the observation of the Acting Commissioner of Civil Service, in his
position paper submitted to the 1971 Constitutional Convention, and quoted
with approval by the Court in Alliance, to wit:
It is the stand, therefore, of this Commission that by reason of the nature of
the public employer and the peculiar character of the public service, it must
necessarily regard the right to strike given to unions in private industry as not
applying to public employees and civil service employees. It has been stated
that the Government, in contrast to the private employer, protects the interest
of all people in the public service, and that accordingly, such conflicting
interests as are present in private labor relations could not exist in the
relations between government and those whom they employ. [At pp. 16-17;
also quoted in National Housing Corporation v. Juco, G.R. No. 64313,
January 17,1985,134 SCRA 172,178-179].
E.O. No. 180, which provides guidelines for the exercise of the right to
organize of government employees, while clinging to the same philosophy,
has, however, relaxed the rule to allow negotiation where the terms and
conditions of employment involved are not among those fixed by law. Thus:
.SECTION 13. Terms and conditions of employment or improvements
thereof, except those that are fixed by law, may be the subject of
negotiations between duly recognized employees' organizations and
appropriate government authorities.
The same executive order has also provided for the general mechanism for
the settlement of labor disputes in the public sector to wit:
.SECTION 16. The Civil Service and labor laws andprocedures, whenever
applicable, shall be followed in the resolution of complaints, grievances and
cases involving government employees. In case any dispute remains
unresolved after exhausting all the available remedies under existing laws
and procedures, the parties may jointly refer the dispute to the [Public Sector
Labor- Management] Council for appropriate action.

232
Government employees may, therefore, through their unions or associations,
either petition the Congress for the betterment of the terms and conditions of
employment which are within the ambit of legislation or negotiate with the
appropriate government agencies for the improvement of those which are
not fixed by law. If there be any unresolved grievances, the dispute may be
referred to the Public Sector Labor - Management Council for appropriate
action. But employees in the civil service may not resort to strikes, walk-outs
and other temporary work stoppages, like workers in the private sector, to
pressure the Govemment to accede to their demands. As now provided
under Sec. 4, Rule III of the Rules and Regulations to Govern the Exercise of
the Right of Government- Employees to Self- Organization, which took effect
after the instant dispute arose, "[t]he terms and conditions of employment in
the government, including any political subdivision or instrumentality thereof
and government- owned and controlled corporations with original charters
are governed by law and employees therein shall not strike for the purpose
of securing changes thereof."
II
The strike staged by the employees of the SSS belonging to petitioner union
being prohibited by law, an injunction may be issued to restrain it.
It is futile for the petitioners to assert that the subject labor dispute falls within
the exclusive jurisdiction of the NLRC and, hence, the Regional Trial Court
had no jurisdiction to issue a writ of injunction enjoining the continuance of
the strike. The Labor Code itself provides that terms and conditions of
employment of government employees shall be governed by the Civil
Service Law, rules and regulations [Art. 276]. More importantly, E.O. No. 180
vests the Public Sector Labor - Management Council with jurisdiction over
unresolved labor disputes involving government employees [Sec. 16].
Clearly, the NLRC has no jurisdiction over the dispute.
This being the case, the Regional Trial Court was not precluded, in the
exercise of its general jurisdiction under B.P. Blg. 129, as amended, from
assuming jurisdiction over the SSS's complaint for damages and issuing the
injunctive writ prayed for therein. Unlike the NLRC, the Public Sector Labor Management Council has not been granted by law authority to issue writs of
injunction in labor disputes within its jurisdiction. Thus, since it is the Council,
and not the NLRC, that has jurisdiction over the instant labor dispute, resort

to the general courts of law for the issuance of a writ of injunction to enjoin
the strike is appropriate.
Neither could the court a quo be accused of imprudence or overzealousness,
for in fact it had proceeded with caution. Thus, after issuing a writ of
injunction enjoining the continuance of the strike to prevent any further
disruption of public service, the respondent judge, in the same order,
admonished the parties to refer the unresolved controversies emanating
from their employer- employee relationship to the Public Sector Labor Management Council for appropriate action [Rollo, p. 86].
III
In their "Petition/Application for Preliminary and Mandatory Injunction," and
reiterated in their reply and supplemental reply, petitioners allege that the
SSS unlawfully withheld bonuses and benefits due the individual petitioners
and they pray that the Court issue a writ of preliminary prohibitive and
mandatory injunction to restrain the SSS and its agents from withholding
payment thereof and to compel the SSS to pay them. In their supplemental
reply, petitioners annexed an order of the Civil Service Commission, dated
May 5, 1989, which ruled that the officers of the SSSEA who are not
preventively suspended and who are reporting for work pending the
resolution of the administrative cases against them are entitled to their
salaries, year-end bonuses and other fringe benefits and affirmed the
previous order of the Merit Systems Promotion Board.
The matter being extraneous to the issues elevated to this Court, it is Our
view that petitioners' remedy is not to petition this Court to issue an
injunction, but to cause the execution of the aforesaid order, if it has already
become final.
WHEREFORE, no reversible error having been committed by the Court of
Appeals, the instant petition for review is hereby DENIED and the decision of
the appellate court dated March 9, 1988 in CA-G.R. SP No. 13192 is
AFFIRMED. Petitioners' "Petition/Application for Preliminary and Mandatory
Injunction" dated December 13,1988 is DENIED.
SO ORDERED.Fernan, C.J., Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

233
necessary to accomplish its purpose; and
BOY SCOUTS OF AMERICA ET AL. v. DALE
530 US 640
CERTIORARI TO THE SUPREME COURT OF NEW JERSEY No. 99-699.
Argued April 26, 2000-Decided June 28, 2000

distinguished Hurley v. IrishAmerican Gay, Lesbian and Bisexual Group of

Boston, Inc., 515 U. S. 557, on the ground that Dale's reinstatement did not
compel the Boy Scouts to express any message.
Held: Applying New Jersey's public accommodations law to require the Boy
Scouts to readmit Dale violates the Boy Scouts' First Amendment right of
expressive association. Government actions that unconstitutionally burden

Petitioners are the Boy Scouts of America and its Monmouth Council

that right may take many forms, one of which is intrusion into a group's

(collectively, Boy Scouts). The Boy Scouts is a private, not-for-profit

internal affairs by forcing it to accept a member it does not

organization engaged in instilling its system of values in young people. It

desire. Roberts v. United States Jaycees,468 U. S. 609, 623. Such forced

asserts that homosexual conduct is inconsistent with those values.

membership is unconstitutional if the person's presence affects in a

Respondent Dale is an adult whose position as assistant scoutmaster of a

significant way the group's ability to advocate public or private

New Jersey troop was revoked when the Boy Scouts learned that he is an

viewpoints. New York State Club Assn., Inc. v. City of New York, 487 U. S. 1,

avowed homosexual and gay rights activist. He filed suit in the New Jersey

13. However, the freedom of expressive association is not absolute; it can be

Superior Court, alleging, inter alia, that the Boy Scouts had violated the state

overridden by regulations adopted to serve compelling

statute prohibiting discrimination on the basis of sexual orientation in places

of public accommodation. That court's Chancery Division granted summary
judgment for the Boy Scouts, but its Appellate Division reversed in pertinent
part and remanded. The State Supreme Court affirmed, holding, inter
alia, that the Boy Scouts violated the State's public accommodations law by
revoking Dale's membership based on his avowed homosexuality. Among
other rulings, the court held that application of that law did not violate the Boy
Scouts' First Amendment right of expressive association because Dale's
inclusion would not significantly affect members' ability to carry out their
purposes; determined that New Jersey has a compelling interest in
eliminating the destructive consequences of discrimination from society, and
that its public accommodations law abridges no more speech than is

641
state interests, unrelated to the suppression of ideas, that cannot be
achieved through means significantly less restrictive of associational
freedoms. Roberts, 468 U. S., at 623. To determine whether a group is
protected, this Court must determine whether the group engages in
"expressive association." The record clearly reveals that the Boy Scouts
does so when its adult leaders inculcate its youth members with its value
system. See id., at 636. Thus, the Court must determine whether the forced
inclusion of Dale would significantly affect the Boy Scouts' ability to advocate
public or private viewpoints. The Court first must inquire, to a limited extent,

234
into the nature of the Boy Scouts' viewpoints. The Boy Scouts asserts that

discrimination and the law does not violate the First Amendment.

homosexual conduct is inconsistent with the values embodied in the Scout

See, e. g., id., at 572. The Court rejects Dale's contention that the

Oath and Law, particularly those represented by the terms "morally straight"

intermediate standard of review enunciated in United States v. O'Brien, 391

and "clean," and that the organization does not want to promote homosexual

U. S. 367, should be applied here to evaluate the

conduct as a legitimate form of behavior. The Court gives deference to the

Boy Scouts' assertions regarding the nature of its expression,
see Democratic Party of United States v. Wisconsin ex rel. La Follette, 450
U. S. 107, 123-124. The Court then inquires whether Dale's presence as an
assistant scoutmaster would significantly burden the expression of those
viewpoints. Dale, by his own admission, is one of a group of gay Scouts who
have become community leaders and are open and honest about their
sexual orientation. His presence as an assistant scoutmaster would interfere
with the Scouts' choice not to propound a point of view contrary to its beliefs.
See Hurley, 515 U. S., at 576-577. This Court disagrees with the New Jersey
Supreme Court's determination that the Boy Scouts' ability to disseminate its
message would not be significantly affected by the forced inclusion of Dale.
First, contrary to the state court's view, an association need not associate for
the purpose of disseminating a certain message in order to be protected, but
must merely engage in expressive activity that could be impaired. Second,
even if the Boy Scouts discourages Scout leaders from disseminating views
on sexual issues, its method of expression is protected. Third, the First
Amendment does not require that every member of a group agree on every
issue in order for the group's policy to be "expressive association." Given
that the Boy Scouts' expression would be burdened, the Court must inquire
whether the application of New Jersey's public accommodations law here
runs afoul of the Scouts' freedom of expressive association, and concludes
that it does. Such a law is within a State's power to enact when the
legislature has reason to believe that a given group is the target of

642
Syllabus
competing interests of the Boy Scouts and the State. Rather, the Court
applies an analysis similar to the traditional First Amendment analysis it
applied in Hurley. A state requirement that the Boy Scouts retain Dale would
significantly burden the organization's right to oppose or disfavor
homosexual conduct. The state interests embodied in New Jersey's public
accommodations law do not justify such a severe intrusion on the freedom of
expressive association. In so ruling, the Court is not guided by its view of
whether the Boy Scouts' teachings with respect to homosexual conduct are
right or wrong; public or judicial disapproval of an organization's expression
does not justify the State's effort to compel the organization to accept
members in derogation of the organization's expressive message. While the
law may promote all sorts of conduct in place of harmful behavior, it may not
interfere with speech for no better reason than promoting an approved
message or discouraging a disfavored one, however enlightened either
purpose may seem. Hurley, supra, at 579. Pp. 647-661.
160 N. J. 562, 734 A. 2d 1196, reversed and remanded.

235
REHNQUIST, C. J., delivered the opinion of the Court, in which O'CONNOR,
SCALIA, KENNEDY, and THOMAS, JJ., joined. STEVENS, J., filed a
dissenting opinion, in which SOUTER, GINSBURG, and BREYER, JJ.,
joined, post, p. 663. SOUTER, J., filed a dissenting opinion, in which
GINSBURG and BREYER, JJ., joined, post, p. 700.
George A. Davidson argued the cause for petitioners.

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

Petitioners are the Boy Scouts of America and the Monmouth Council, a
division of the Boy Scouts of America (colfor Constitutional Jurisprudence by Edwin Meese III; for the Eagle Forum
Education & Legal Defense Fund et al. by Erik S. Jaffe; for the Family
Defense Council et al. by William E. Fay III; for the Family Research Council

With him on the briefs were Carla A. Kerr, David K. Park, Michael W

by Janet M. LaRue; for Gays and Lesbians for Individual Liberty by William

McConnell, and Sanford D. Brown.

H. Mellor, Clint Bolick, and Scott G. Bullock; for the Individual Rights

Evan Wolfson argued the cause for respondent. With him on the brief were
Ruth E. Harlow, David Buckel, Jon W Davidson, Beatrice Dohrn, Patricia M.
Logue, Thomas J. Moloney, Allyson W Haynes, and Lewis H. Robertson.*
*Briefs of amici curiae urging reversal were filed for Agudath Israel of
America by David Zwiebel; for the American Center for Law and Justice et al.
by Jay Alan Sekulow, Vincent McCarthy, John P. Tuskey, and Laura B.
Hernandez; for the American Civil Rights Union byPeter J. Ferrara; for the
Becket Fund for Religious Liberty by Kevin J. Hasson and Eric W Treene; for
the California State Club Association et al. by William I. Edlund; for the
Center for the Original Intent of the Constitution by Michael P. Farris; for the
Christian Legal Society et al. by Kimberlee Wood Colby and Carl H.
Esbeck; for the Claremont Institute Center

Foundation by Paul A. Hoffman andPatrick J. Manshardt; for the Institute for

Public Mfairs of the Union of Orthodox Jewish Congregations of America
by Nathan J.Diament; for the Liberty Legal Institute by Kelly
Shackelford and George B. Flint; for the National Catholic Committee on
Scouting et al. by Von G. Keetch; for the National Legal Foundation
by Barry C. Hodge; for the Pacific Legal Foundation by John H. Findley; for
Public Advocate of the United States et al.
by William J. Olson and John S. Miles; for the United States Catholic
Conference et al. by Mark E. Chopko and Jeffrey Hunter Moon; and for John
J. Hurley et al. by Chester Darling, Michael Williams, and Dwight G. Duncan.
Briefs of amici curiae urging affirmance were filed for the State of New
Jersey by John J. Farmer, Jr., Attorney General, Jeffrey Burstein, Senior
Deputy Attorney General, and Charles S. Cohen, Deputy Attorney General;
for the State of New York et al. by Eliot Spitzer, Attorney General of New
York, Preeta D. Bansal, Solicitor General, and Adam L. Aronson, Assistant
Solicitor General, and by the Attorneys General for their respective States as

643

follows: Bill Lockyer of California, Earl I. Anzai of Hawaii, J. Joseph Curran,

Jr., of Maryland, Thomas F. Reilly of Massachusetts, Philip T. McLaughlin of

236
New Hampshire, W A. Drew Edmondson of Oklahoma; Hardy Myers of

Boy Scouts' First Amendment right of expressive association. We hold that it

Oregon, William H. Sorrell of Vermont, and Christine O. Gregoire of

does.

Washington; for the city of Atlanta et al. by Peter T. Barbur, Sara M.

Darehshori, James K. Hahn, David I. Schulman, Jeffrey L. Rogers,

Madelyn F. Wessel, Thomas J. Berning, Lawrence E. Rosenthal, Benna
Ruth Solomon, Michael D. Hess, Leonard J. Koerner, Florence A.
Hutner, and Louise Renne; for the American Association of School
Administrators et al. by Mitchell A. Karlan; for the American Bar Association
by William G. Paul and Robert H. Murphy; for the American Civil Liberties
Union et al. by Matthew A. Coles, Steven R. Shapiro, Sara L.

James Dale entered Scouting in 1978 at the age of eight by joining

Monmouth Council's Cub Scout Pack 142. Dale became a Boy Scout in
1981 and remained a Scout until he turned 18. By all accounts, Dale was an
exemplary Scout. In 1988, he achieved the rank of Eagle Scout, one of
Scouting's highest honors.

Mandelbaum, and Lenora M. Lapidus; for the American Jewish Congress

Dale applied for adult membership in the Boy Scouts in 1989. The Boy

by Marc D. Stern; for the American Psychological Association by Paul M.

Scouts approved his application for the position of assistant scoutmaster of

Smith, Nory Miller, James L. McHugh, and Nathalie F. P. Gil-

Troop 73. Around the same time, Dale left home to attend Rutgers University.
After arriving at Rutgers, Dale first acknowledged to himself and
foyle; for the American Public Health Association et al. by Marvin E. Frankel,
Jeffrey S. Trachtman, and Kerri Ann Law; for Bay Area Lawyers for Individual

644

Freedom et al. by Edward W Swanson and Paula A. Brantner; for Deans of

Divinity Schools and Rabbinical Institutions by David A. Schulz; for the

lectively, Boy Scouts). The Boy Scouts is a private, not-forprofit organization

National Association for the Advancement of Colored People

engaged in instilling its system of values in young people. The Boy Scouts

by Dennis C. Hayes and David T. Goldberg; for Parents, Families, and

asserts that homosexual conduct is inconsistent with the values it seeks to

Friends of Lesbians and Gays, Inc., et al. by John H. Pickering, Daniel H.

instill. Respondent is James Dale, a former Eagle Scout whose adult

Squire, and Carol J.Banta; for the Society of American Law Teachers by Nan

membership in the Boy Scouts was revoked when the Boy Scouts learned

D. Hunter and David Cole; and for Roland Pool et al. by David M.

that he is an avowed homosexual and gay rights activist. The New Jersey

Gische andMerril Hirsh.

Supreme Court held that New Jersey's public accommodations law requires
that the Boy Scouts readmit Dale. This case presents the question whether
applying New Jersey's public accommodations law in this way violates the

Michael D. Silverman filed a brief for the General Board of Church and
Society of the United Methodist Church et al.

237
The New Jersey Superior Court's Chancery Division granted summary
judgment in favor of the Boy Scouts. The court held that New Jersey's public
645
others that he is gay. He quickly became involved with, and eventually
became the copresident of, the Rutgers University Lesbian/Gay Alliance. In
1990, Dale attended a seminar addressing the psychological and health
needs of lesbian and gay teenagers. A newspaper covering the event
interviewed Dale about his advocacy of homosexual teenagers' need for gay

accommodations law was inapplicable because the Boy Scouts was not a
place of public accommodation, and that, alternatively, the Boy Scouts is a
distinctly private group exempted from coverage under New Jersey's law.
The court rejected Dale's common-law claim, holding that New Jersey's
policy is embodied in the public accommodations law. The court also
concluded that the Boy Scouts' position in respect of active homosexuality
was clear

role models. In early July 1990, the newspaper published the interview and
Dale's photograph over a caption identifying him as the copresident of the
Lesbian/ Gay Alliance.
Later that month, Dale received a letter from Monmouth Council Executive
James Kay revoking his adult membership. Dale wrote to Kay requesting the
reason for Monmouth Council's decision. Kay responded by letter that the
Boy Scouts "specifically forbid membership to homosexuals." App. 137.
In 1992, Dale filed a complaint against the Boy Scouts in the New Jersey
Superior Court. The complaint alleged that the Boy Scouts had violated New
Jersey's public accommodations statute and its common law by revoking
Dale's membership based solely on his sexual orientation. New Jersey's
public accommodations statute prohibits, among other things, discrimination
on the basis of sexual orientation in places of public accommodation. N. J.
Stat. Ann. 10:5-4 and 10:5-5 (West Supp. 2000); see Appendix, infra, at
661-663.

646
and held that the First Amendment freedom of expressive association
prevented the government from forcing the Boy Scouts to accept Dale as an
adult leader.
The New Jersey Superior Court's Appellate Division affirmed the dismissal of
Dale's common-law claim, but otherwise reversed and remanded for further
proceedings. 308 N. J. Super. 516, 706 A. 2d 270 (1998). It held that New
Jersey's public accommodations law applied to the Boy Scouts and that the
Boy Scouts violated it. The Appellate Division rejected the Boy Scouts'
federal constitutional claims.
The New Jersey Supreme Court affirmed the judgment of the Appellate
Division. It held that the Boy Scouts was a place of public accommodation
subject to the public accommodations law, that the organization was not

238
exempt from the law under any of its express exceptions, and that the Boy

Accordingly, the court held "that Dale's membership does not violate the Boy

Scouts violated the law by revoking Dale's membership based on his

Scouts' right of expressive association because his inclusion would not

avowed homosexuality. After considering the state-law issues, the court

'affect in any significant way [the Boy Scouts'] existing members' ability to

addressed the Boy Scouts' claims that application of the public

carry out their various purposes.'" Id., at 615, 734 A. 2d, at 1225

accommodations law in this case violated its federal constitutional rights "'to

(quoting Duarte, supra, at 548). The court also determined that New Jersey

enter into and maintain ... intimate or private relationships ... [and] to

has a compelling interest in eliminating "the destructive consequences of

associate for the purpose of engaging in protected speech.'" 160 N. J. 562,

discrimination from our society," and that its public accommodations law

605, 734 A. 2d 1196, 1219 (1999) (quoting Board of Directors of Rotary

abridges no more speech than is necessary to accomplish its purpose. 160

lnt'lv. Rotary Club of Duarte, 481 U. S. 537, 544 (1987)). With respect to the

N. J., at 619-620,734 A. 2d, at 1227-1228. Finally, the court addressed the

right to intimate association, the court concluded that the Boy Scouts' "large

Boy Scouts' reliance on Hurley v. IrishAmerican Gay, Lesbian and Bisexual

size, nonselectivity, inclusive rather than exclusive purpose, and practice of

Group of Boston, Inc., 515 U. S. 557(1995), in support of its claimed First

inviting or allowing nonmembers to attend meetings, establish that the

Amendment right to exclude Dale. The court determined that Hurley did not

organization is not 'sufficiently personal or private to warrant constitutional

require deciding the case in favor of the Boy Scouts because "the

protection' under the freedom of intimate association." 160 N. J., at 608-609,

reinstatement of Dale does not compel Boy Scouts to express any

734 A. 2d, at 1221 (quoting Duarte, supra, at 546). With respect to the right

message." 160 N. J., at 624, 734 A. 2d, at 1229.

of expressive association, the court "agree[d] that Boy Scouts expresses a

belief in moral values and uses its activities to encourage the moral
development

We granted the Boy Scouts' petition for certiorari to determine whether the
application of New Jersey's public accommodations law violated the First
Amendment. 528 U. S. 1109 (2000).
II
In Roberts v. United States Jaycees, 468 U. S. 609, 622 (1984), we

647
of its members." 160 N. J., at 613, 734 A. 2d, at 1223. But the court
concluded that it was "not persuaded ... that a shared goal of Boy Scout
members is to associate in order to preserve the view that homosexuality is
immoral." Ibid., 734 A. 2d, at 1223-1224 (internal quotation marks omitted).

observed that "implicit in the right to engage in activities protected by the

First Amendment" is "a corresponding right to associate with others in pursuit
of a wide variety of political, social, economic, educational, religious, and
cultural ends." This right is crucial in preventing the majority from imposing
its views on groups that would

239
engages in "expressive association." The First Amendment's protection of
expressive association is not reserved for advocacy groups. But to come
648
rather express other, perhaps unpopular, ideas. See ibid. (stating that
protection of the right to expressive association is "especially important in
preserving political and cultural diversity and in shielding dissident
expression from suppression by the majority"). Government actions that may

within its ambit, a group must engage in some form of expression, whether it
be public or private.
Because this is a First Amendment case where the ultimate conclusions of
law are virtually inseparable from findings of fact, we are obligated to
independently review the

unconstitutionally burden this freedom may take many forms, one of which is
"intrusion into the internal structure or affairs of an association" like a
"regulation that forces the group to accept members it does not
desire." Id., at 623. Forcing a group to accept certain members may impair
the ability of the group to express those views, and only those views, that it

649

intends to express. Thus, "[f]reedom of association ... plainly presupposes a

factual record to ensure that the state court's judgment does not unlawfully

freedom not to associate." Ibid.

intrude on free expression. See Hurley, supra, at 567-568. The record

The forced inclusion of an unwanted person in a group infringes the group's

freedom of expressive association if the presence of that person affects in a

reveals the following. The Boy Scouts is a private, nonprofit organization.

According to its mission statement:

significant way the group's ability to advocate public or private

"It is the mission of the Boy Scouts of America to serve others by helping to

viewpoints. New York State Club Assn., Inc. v. City of New York, 487 U. S. 1,

instill values in young people and, in other ways, to prepare them to make

13 (1988). But the freedom of expressive association, like many freedoms, is

ethical choices over their lifetime in achieving their full potential.

not absolute. We have held that the freedom could be overridden "by
regulations adopted to serve compelling state interests, unrelated to the
suppression of ideas, that cannot be achieved through means significantly

"The values we strive to instill are based on those found in the Scout Oath
and Law:

less restrictive of associational freedoms." Roberts, supra, at 623.

"Scout Oath "On my honor I will do my best

To determine whether a group is protected by the First Amendment's

"To do my duty to God and my country "and to obey the Scout Law;

expressive associational right, we must determine whether the group

240
"To help other people at all times;
"To keep myself physically strong, "mentally awake, and morally straight.
"Scout Law

"Trustworthy

Thrifty

"Friendly

Brave

"Courteous
"Kind

Obedient

Cheerful

"Helpful

good morals, reverence, patriotism, and a desire for self-improvement").

Given that the Boy Scouts engages in expressive activity, we must determine
whether the forced inclusion of Dale as an assistant scoutmaster would
significantly affect the Boy Scouts' ability to advocate public or private

"A Scout is:

"Loyal

service might become expressive when the activity is intended to develop

Clean

Reverent." App. 184.

viewpoints. This inquiry necessarily requires us first to explore, to a limited

extent, the nature of the Boy Scouts' view of homosexuality.
The values the Boy Scouts seeks to instill are "based on" those listed in the
Scout Oath and Law. App. 184. The Boy Scouts explains that the Scout Oath
and Law provide "a positive moral code for living; they are a list of 'do's'
rather than 'don'ts.'" Brief for Petitioners 3. The Boy Scouts asserts that

Thus, the general mission of the Boy Scouts is clear: "[T]o instill values in

homosexual conduct is inconsistent with the values embodied in the Scout

young people." Ibid. The Boy Scouts seeks to instill these values by having

Oath and Law, particularly with the values represented by the terms "morally

its adult leaders spend time with the youth members, instructing and

straight" and "clean."

engaging them in activities like camping, archery, and fishing. During the
time spent with the youth members, the scoutmasters and assistant
scoutmasters inculcate them with the Boy

Obviously, the Scout Oath and Law do not expressly mention sexuality or
sexual orientation. See supra, at 649. And the terms "morally straight" and
"clean" are by no means self-defining. Different people would attribute to
those terms very different meanings. For example, some people may believe
that engaging in homosexual conduct is not at odds with being "morally
straight" and "clean." And others may believe that engaging in homosexual

650
Scouts' values-both expressly and by example. It seems indisputable that an
association that seeks to transmit such a system of values engages in
expressive activity. See Roberts, supra, at 636 (O'CONNOR, J., concurring)
("Even the training of outdoor survival skills or participation in community

conduct is contrary to being "morally straight" and "clean." The Boy Scouts
says it falls within the latter category.
The New Jersey Supreme Court analyzed the Boy Scouts' beliefs and found
that the "exclusion of members solely on the basis of their sexual orientation
is inconsistent with Boy

241
A 1978 position statement to the Boy Scouts' Executive Committee, signed
by Downing B. Jenks, the President of the Boy Scouts, and Harvey L. Price,
651

the Chief Scout Executive, expresses the Boy Scouts' "official position" with
regard to "homosexuality and Scouting":

Scouts' commitment to a diverse and 'representative' membership ... [and]

"Q. Mayan individual who openly declares himself to be a homosexual be a

contradicts Boy Scouts' overarching objective to reach 'all eligible youth.'"

volunteer Scout leader?

160 N. J., at 618, 734 A. 2d, at 1226. The court concluded that the exclusion
of members like Dale "appears antithetical to the organization's goals and
philosophy." Ibid. But our cases reject this sort of inquiry; it is not the role of
the courts to reject a group's expressed values because they disagree with
those values or find them internally inconsistent. See Democratic Party of

652

United States v. Wisconsin ex rel. La Follette, 450 U. S. 107, 124 (1981)

("[A]s is true of all expressions of First Amendment freedoms, the courts may

"A. No. The Boy Scouts of America is a private, membership organization

not interfere on the ground that they view a particular expression as unwise

and leadership therein is a privilege and not a right. We do not believe that

or irrational"); see also Thomas v. Review Bd. of Indiana Employment

homosexuality and leadership in Scouting are appropriate. We will continue

Security Div., 450 U. S. 707, 714 (1981) ("[R]eligious beliefs need not be

to select only those who in our judgment meet our standards and

acceptable, logical, consistent, or comprehensible to others in order to merit

qualifications for leadership." App.453-454.

First Amendment protection").

Thus, at least as of 1978-the year James Dale entered Scouting-the official

The Boy Scouts asserts that it "teach[es] that homosexual conduct is not

position of the Boy Scouts was that avowed homosexuals were not to be

morally straight," Brief for Petitioners 39, and that it does "not want to

Scout leaders.

promote homosexual conduct as a legitimate form of behavior," Reply Brief

for Petitioners 5. We accept the Boy Scouts' assertion. We need not inquire
further to determine the nature of the Boy Scouts' expression with respect to
homosexuality. But because the record before us contains written evidence

A position statement promulgated by the Boy Scouts in 1991 (after Dale's

membership was revoked but before this litigation was filed) also supports its
current view:

of the Boy Scouts' viewpoint, we look to it as instructive, if only on the

"We believe that homosexual conduct is inconsistent with the requirement in

question of the sincerity of the professed beliefs.

the Scout Oath that a Scout be morally straight and in the Scout Law that a

242
Scout be clean in word and deed, and that homosexuals do not provide a

"promote homosexual conduct as a legitimate form of behavior." Reply Brief

desirable role model for Scouts." Id., at 457.

for Petitioners 5. As we give deference to an association's assertions

This position statement was redrafted numerous times but its core message
remained consistent. For example, a 1993 position statement, the most
recent in the record, reads, in part:

regarding the nature of its expression, we must also give deference to an

association's view of what would impair its expression. See, e. g., La
Follette, supra, at 123-124 (considering whether a Wisconsin law burdened
the National Party's associational rights and stating that "a State, or a court,

"The Boy Scouts of America has always reflected the expectations that

may not constitutionally substitute its own judgment for that of the Party").

Scouting families have had for the organization. We do not believe that

That is not to say that an expressive association can erect a shield against

homosexuals provide a role model consistent with these expectations.

antidiscrimination laws simply by asserting that mere acceptance of a

Accordingly, we do not allow for the registration of avowed homosexuals as

member from a particular group would impair its message. But here Dale, by

members or as leaders of the BSA." Id., at 461.

his own admission, is one of a group of gay Scouts who have "become
leaders in their community and are open and honest about their sexual

The Boy Scouts publicly expressed its views with respect to homosexual

orientation." App. 11. Dale was the copresident of a gay and lesbian

conduct by its assertions in prior litigation. For example, throughout a

organization at college and remains a gay rights activist. Dale's presence in

California case with similar facts filed in the early 1980's, the Boy Scouts

the Boy Scouts would, at the very least, force the organization to send a

consistently asserted the same position with respect to homosexuality that it

message, both to the youth members and the world, that the Boy Scouts

asserts today. See Curran v. Mount Diablo Council of Boy

accepts homosexual conduct as a legitimate form of behavior.

Hurley is illustrative on this point. There we considered whether the
application of Massachusetts' public accommodations law to require the
organizers of a private St. Patrick's Day parade to include among the

653

marchers an IrishAmerican gay, lesbian, and bisexual group, GLIB, violated

the parade organizers' First Amendment rights. We noted that the parade

Scouts of America, No. C-365529 (Cal. Super. Ct., July 25, 1991); 48 Cal.

organizers did not wish to exclude the GLIB members because of their

App. 4th 670, 29 Cal. Rptr. 2d 580 (1994); 17 Cal. 4th 670, 952 P. 2d 218

sexual orientations, but because they wanted to march behind a GLIB

(1998). We cannot doubt that the Boy Scouts sincerely holds this view.

banner. We observed:

We must then determine whether Dale's presence as an assistant

scoutmaster would significantly burden the Boy Scouts' desire to not

243
inclusion of Dale as an assistant scoutmaster because of the following
findings:
654

"Boy Scout members do not associate for the purpose of disseminating the
belief that homosexuality is immoral; Boy Scouts discourages its leaders

"[A] contingent marching behind the organization's banner would at least

from disseminating any views on sexual issues; and Boy Scouts includes

bear witness to the fact that some Irish are gay, lesbian, or bisexual, and the

sponsors and members who subscribe to different views

presence of the organized marchers would suggest their view that people of
their sexual orientations have as much claim to unqualified social
acceptance as heterosexuals .... The parade's organizers may not believe
these facts about Irish sexuality to be so, or they may object to unqualified
social acceptance of gays and lesbians or have some other reason for

655

wishing to keep GLIB's message out of the parade. But whatever the reason,
it boils down to the choice of a speaker not to propound a particular point of
view, and that choice is presumed to lie beyond the government's power to
control." 515 U. S., at 574-575.
Here, we have found that the Boy Scouts believes that homosexual conduct
is inconsistent with the values it seeks to instill in its youth members; it will
not "promote homosexual conduct as a legitimate form of behavior." Reply
Brief for Petitioners 5. As the presence of GLIB in Boston's St. Patrick's Day
parade would have interfered with the parade organizers' choice not to
propound a particular point of view, the presence of Dale as an assistant
scoutmaster would just as surely interfere with the Boy Scout's choice not to
propound a point of view contrary to its beliefs.
The New Jersey Supreme Court determined that the Boy Scouts' ability to
disseminate its message was not significantly affected by the forced

in respect of homosexuality." 160 N. J., at 612, 734 A. 2d, at 1223.

We disagree with the New Jersey Supreme Court's conclusion drawn from
these findings.
First, associations do not have to associate for the "purpose" of
disseminating a certain message in order to be entitled to the protections of
the First Amendment. An association must merely engage in expressive
activity that could be impaired in order to be entitled to protection. For
example, the purpose of the St. Patrick's Day parade in Hurley was not to
espouse any views about sexual orientation, but we held that the parade
organizers had a right to exclude certain participants nonetheless.
Second, even if the Boy Scouts discourages Scout leaders from
disseminating views on sexual issues-a fact that the Boy Scouts disputes
with contrary evidence-the First Amendment protects the Boy Scouts'

244
method of expression. If the Boy Scouts wishes Scout leaders to avoid

the housetops, or that it tolerates dissent within its ranks, does not mean that

questions of sexuality and teach only by example, this fact does not negate

its views receive no First Amendment protection.

the sincerity of its belief discussed above.

Having determined that the Boy Scouts is an expressive association and that

Third, the First Amendment simply does not require that every member of a

the forced inclusion of Dale would significantly affect its expression, we

group agree on every issue in order for the group's policy to be "expressive

inquire whether the application of New Jersey's public accommodations law

association." The Boy Scouts takes an official position with respect to

to require that the Boy Scouts accept Dale as an assistant scoutmaster runs

homosexual conduct, and that is sufficient for First Amendment purposes. In

afoul of the Scouts' freedom of expressive association. We conclude that it

this same vein, Dale makes much of the claim that the Boy Scouts does not

does.

revoke the membership of heterosexual Scout leaders that openly disagree

with the Boy Scouts' policy on sexual orientation. But if this is true, it is
irrelevant.1 The presence of an avowed homosexual and gay

State public accommodations laws were originally enacted to prevent

discrimination in traditional places of public accommodation-like inns and
trains. See, e. g., Hurley, supra, at 571-572 (explaining the history of

1 The record evidence sheds doubt on Dale's assertion. For example, the

Massachusetts' public accommodations law); Romer v.Evans, 517 U. S. 620,

National Director of the Boy Scouts certified that "anypersons who advocate

627-629 (1996) (describing the evolution of public accommodations laws).

to Scouting youth that homosexual conduct is" consistent with Scouting

Over time, the public accommodations laws have expanded to cover more

values will not be registered as adult leaders. App. 746 (emphasis added).

places.2 New Jersey's statu-

And the Monmouth Council Scout Executive testified that the

advocacy of the morality of homosexuality to youth members by any adult

member is grounds for revocation of the adult's membership.Id., at 761.
2 Public accommodations laws have also broadened in scope to cover more

656
rights activist in an assistant scoutmaster's uniform sends a distinctly
different message from the presence of a heterosexual assistant
scoutmaster who is on record as disagreeing with Boy Scouts policy. The
Boy Scouts has a First Amendment right to choose to send one message but
not the other. The fact that the organization does not trumpet its views from

groups; they have expanded beyond those groups that have been given
heightened equal protection scrutiny under our cases. See Romer, 517 U. S.,
at 629. Some municipal ordinances have even expanded to cover criteria
such as prior criminal record, prior psychiatric treatment, military status,
personal appearance, source of income, place of residence, and political
ideology. See 1 Boston, Mass., Ordinance No. 12-9.7 (1999) (ex-offender,
prior psychiatric treatment, and military status); D. C. Code Ann. 1-2519

245
(1999) (personal appearance, source of income, place of residence); Seattle,

ideas that the organization sought to express. In Roberts, we said "[i]ndeed,

Wash., Municipal Code 14.08.090 (1999) (political ideology).

the Jaycees has failed to demonstrate ...

3 Four State Supreme Courts and one United States Court of Appeals have
ruled that the Boy Scouts is not a place of public
accommodation. Welsh v. Boy Scouts of America, 993 F.2d 1267 (CA7), cert.

657

denied, 510 U. S. 1012 (1993); Curran v. Mount Diablo Council of the Boy
Scouts of America, 17 Cal. 4th 670, 952 P. 2d 218

tory definition of" '[a] place of public accommodation'" is extremely broad.

(1998); Seabourn v. Coronado Area Council, Boy Scouts of America, 257

The term is said to "include, but not be limited to," a list of over 50 types of

Kan. 178, 891 P. 2d 385 (1995); Quinnipiac Council, Boy Scouts of America,

places. N. J. Stat. Ann. 10:5-5(l) (West Supp. 2000); see Appendix, infra, at

Inc. v. Comm'n on Human Rights &Opportunities, 204 Conn. 287, 528 A. 2d

661663. Many on the list are what one would expect to be places where the

352 (1987); Schwenk v. Boy Scouts of America, 275 Ore. 327, 551 P. 2d 465

public is invited. For example, the statute includes as places of public

(1976). No federal appellate court or state supreme court-except the New

accommodation taverns, restaurants, retail shops, and public libraries. But

Jersey Supreme Court in this case-has reached a contrary result.

the statute also includes places that often may not carry with them open
invitations to the public, like summer camps and roof gardens. In this case,
the New Jersey Supreme Court went a step further and applied its public
accommodations law to a private entity without even attempting to tie the
term "place" to a physical location.3 As the definition of "public
accommodation" has expanded from clearly commercial entities, such as
restaurants, bars, and hotels, to membership organizations such as the Boy
Scouts, the potential for conflict between state public accommodations laws
and the First Amendment rights of organizations has increased.
We recognized in cases such as Roberts and Duarte that States have a
compelling interest in eliminating discrimination against women in public
accommodations. But in each of these cases we went on to conclude that
the enforcement of these statutes would not materially interfere with the

658
any serious burdens on the male members' freedom of expressive
association." 468 U. S., at 626. In Duarte, we said:
"[I]mpediments to the exercise of one's right to choose one's associates can
violate the right of association protected by the First Amendment. In this
case, however, the evidence fails to demonstrate that admitting women to
Rotary Clubs will affect in any significant way the existing members' ability to
carry out their various purposes." 481 U. S., at 548 (internal quotation marks
and citations omitted).

246
We thereupon concluded in each of these cases that the organizations' First

Dale contends that we should apply the intermediate standard of review

Amendment rights were not violated by the application of the States' public

enunciated in United States v. O'Brien, 391 U. S. 367 (1968), to evaluate the

accommodations laws.

competing interests. There the Court enunciated a four-part test for review of

In Hurley, we said that public accommodations laws "are well within the
State's usual power to enact when a legislature has reason to believe that a
given group is the target of discrimination, and they do not, as a general
matter, violate the First or Fourteenth Amendments." 515 U. S., at 572. But
we went on to note that in that case "the Massachusetts [public
accommodations] law has been applied in a peculiar way" because "any
contingent of protected individuals with a message would have the right to

a governmental regulation that has only an incidental effect on protected

speech-in that case the symbolic burning of a draft card. A law prohibiting the
destruction of draft cards only incidentally affects the free speech rights of
those who happen to use a violation of that law as a symbol of protest. But
New Jersey's public accommodations law directly and immediately affects
associational rights, in this case associational rights that enjoy First
Amendment protection. Thus, O'Brien is inapplicable.

participate in petitioners' speech, so that the communication produced by the

In Hurley, we applied traditional First Amendment analysis to hold that the

private organizers would be shaped by all those protected by the law who

application of the Massachusetts public accommodations law to a parade

wished to join in with some expressive demonstration of their own." Id., at

violated the First Amendment rights of the parade organizers. Although we

572-573. And in the associational freedom cases such as Roberts,

did not explicitly deem the parade in Hurleyan expressive association, the

Duarte, and New York State Club Assn., after finding a compelling state

analysis we applied there is similar to the analysis we apply here. We have

interest, the Court went on to examine whether or not the application of the

already concluded that a state requirement that the Boy Scouts retain Dale

state law would impose any "serious burden" on the organization's rights of

as an assistant scoutmaster would significantly burden the organization's

expressive association. So in these cases, the associational interest in

right to oppose or disfavor homosexual conduct. The state interests

freedom of expression has

embodied in New Jersey's public accommodations law do not justify such a

severe intrusion on the Boy Scouts' rights to freedom of expressive
association. That being the case, we hold that the First Amendment prohibits
the State from imposing such a requirement through the application of its
public accommodations law.4

659
been set on one side of the scale, and the State's interest on the other.

4 We anticipated this result in Hurley when we illustrated the reasons for our
holding in that case by likening the parade to a private membership
organization. 515 U. S., at 580. We stated: "Assuming the parade

247
In speaking of the Founders of this Nation, Justice Brandeis emphasized that
they "believed that free660
JUSTICE STEVENS' dissent makes much of its observation that the public
perception of homosexuality in this country has changed. See post, at 699700. Indeed, it appears that homosexuality has gained greater societal
acceptance. See ibid. But this is scarcely an argument for denying First
Amendment protection to those who refuse to accept these views. The First

to be large enough and a source of benefits (apart from its expression) that
would generally justify a mandated access provision, GLIB could
nonetheless be refused admission as an expressive contingent with its own
message just as readily as a private club could exclude an applicant whose
manifest views were at odds with a position taken by the club's existing
members." Id., at 580-581.

Amendment protects expression, be it of the popular variety or not. See, e.

g., Texas v. Johnson, 491 U. S. 397 (1989) (holding that Johnson's
conviction for burning the American flag violates the First
Amendment); Brandenburg v. Ohio, 395 U. S. 444 (1969) (per
curiam) (holding that a Ku Klux Klan leader's conviction for advocating

661

unlawfulness as a means of political reform violates the First Amendment).

dom to think as you will and to speak as you think are means indispensable

And the fact that an idea may be embraced and advocated by increasing

to the discovery and spread of political truth." Whitney v.California, 274 U. S.

numbers of people is all the more reason to protect the First Amendment

357, 375 (1927) (concurring opinion). He continued:

rights of those who wish to voice a different view.

"Believing in the power of reason as applied through public discussion, they

JUSTICE STEVENS' extolling of Justice Brandeis' comments in New State

eschewed silence coerced by law-the argument of force in its worst form.

Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (dissenting opinion);

Recognizing the occasional tyrannies of governing majorities, they amended

see post, at 664, 700, confuses two entirely different principles. In New State

the Constitution so that free speech and assembly should be

Ice, the Court struck down an Oklahoma regulation prohibiting the

guaranteed." Id., at 375-376.

manufacture, sale, and distribution of ice without a license. Justice Brandeis,

a champion of state experimentation in the economic realm, dissented. But
Justice Brandeis was never a champion of state experimentation in the
suppression of free speech. To the contrary, his First Amendment
commentary provides compelling support for the Court's opinion in this case.

We are not, as we must not be, guided by our views of whether the Boy
Scouts' teachings with respect to homosexual conduct are right or wrong;
public or judicial disapproval of a tenet of an organization's expression does
not justify the State's effort to compel the organization to accept members

248
where such acceptance would derogate from the organization's expressive

age, marital status, affectional or sexual orientation, familial status, or sex,

message. "While the law is free to promote all sorts of conduct in place of

subject only to conditions and limitations applicable alike to all persons. This

harmful behavior, it is not free to interfere with speech for no better reason

opportunity is recognized as and declared to be a civil right."

than promoting an approved message or discouraging a disfavored one,

however enlightened either purpose may strike the government."Hurley, 515
U. S., at 579.
The judgment of the New Jersey Supreme Court is reversed, and the case is
remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
APPENDIX TO OPINION OF THE COURT
N. J. Stat. Ann. 10:5-4 (West Supp. 2000). "Obtaining employment,
accommodations and privileges without discrimination; civil right

N. J. Stat. Ann. 10:5-5 (West Supp. 2000). "Definitions "As used in this act,
unless a different meaning clearly appears from the context:
"l. 'A place of public accommodation' shall include, but not be limited to: any
tavern, roadhouse, hotel, motel, trailer camp, summer camp, day camp, or
resort camp, whether for entertainment of transient guests or
accommodation of those seeking health, recreation or rest; any producer,
manufacturer, wholesaler, distributor, retail shop, store, establishment, or
concession dealing with goods or services of any kind; any restaurant, eating
house, or place where food is sold for consumption on the premises; any
place maintained for the sale of ice cream, ice and fruit preparations or their
derivatives, soda water or confections, or where any beverages of any kind

"All persons shall have the opportunity to obtain employment, and to obtain

are retailed for consumption on the premises; any garage, any public

all the accommodations, advantages, facilities, and privileges of any place of

conveyance operated on land or water, or in the air, any stations and

public accommoda-

terminals thereof; any bathhouse, boardwalk, or seashore accommodation;

any auditorium, meeting place, or hall; any theatre, motion-picture house,
music hall, roof garden, skating rink, swimming pool, amusement and
recreation park, fair, bowling alley, gymnasium, shooting gallery, billiard and
pool parlor, or other place of amusement; any comfort station; any

662
Appendix to opinion of the Court
tion, publicly assisted housing accommodation, and other real property
without discrimination because of race, creed, color, national origin, ancestry,

dispensary, clinic or hospital; any public library; any kindergarten, primary

and secondary school, trade or business school, high school, academy,
college and university, or any educational institution under the supervision of
the State Board of Education, or the Commissioner of Education of the State
of New Jersey.

249
discrimination on the basis of nine different traits including an individual's
"sexual orientation." 1 The question in this case is whether that ex663
Nothing herein contained shall be construed to include or to apply to any

1 In 1992, the statute was again amended to add "familial status" as a tenth
protected class. It now provides:

institution, bona fide club, or place of accommodation, which is in its nature

"10:5-4 Obtaining employment, accommodations and privileges without

distinctly private; nor shall anything herein contained apply to any

discrimination; civil right

educational facility operated or maintained by a bona fide religious or

sectarian institution, and the right of a natural parent or one in loco parentis
to direct the education and upbringing of a child under his control is hereby

"All persons shall have the opportunity to obtain employment, and to obtain
all the accommodations, advantages, facilities, and privileges of any

affirmed; nor shall anything herein contained be construed to bar any private
secondary or post secondary school from using in good faith criteria other
than race, creed, color, national origin, ancestry or affectional or sexual
orientation in the admission of students."
JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE GINSBURG,
and JUSTICE BREYER join, dissenting.
New Jersey "prides itself on judging each individual by his or her merits" and
on being "in the vanguard in the fight to eradicate the cancer of unlawful
discrimination of all types from our society." Peper v. Princeton Univ. Bd. of
Trustees, 77 N. J. 55, 80, 389 A. 2d 465,478 (1978). Since 1945, it has had a

664
pansive construction trenches on the federal constitutional rights of the Boy
Scouts of America (BSA).
Because every state law prohibiting discrimination is designed to replace
prejudice with principle, Justice Brandeis' comment on the States' right to
experiment with "things social" is directly applicable to this case.

law against discrimination. The law broadly protects the opportunity of all

"To stay experimentation in things social and economic is a grave

persons to obtain the advantages and privileges "of any place of public

responsibility. Denial of the right to experiment may be fraught with serious

accommodation." N. J. Stat. Ann. 10:5-4 (West Supp. 2000). The New

consequences to the Nation. It is one of the happy incidents of the federal

Jersey Supreme Court's construction of the statutory definition of a "place of

system that a single courageous State may, if its citizens choose, serve as a

public accommodation" has given its statute a more expansive coverage

laboratory; and try novel social and economic experiments without risk to the

than most similar state statutes. And as amended in 1991, the law prohibits

rest of the country. This Court has the power to prevent an experiment. We

250
may strike down the statute which embodies it on the ground that, in our

626-627 (1984), nor does it force BSA to communicate any message that it

opinion, the measure is arbitrary, capricious or unreasonable. We have

does not wish to endorse. New Jersey's law, therefore, abridges no

power to do this, because the due process clause has been held by the

constitutional right of BSA.

Court applicable to matters of substantive law as well as to matters of

procedure. But in the exercise of this high power, we must be ever on our
guard, lest we erect our prejudices into legal principles. If we would guide by
the light of reason, we must let our minds be bold." New State Ice
Co. v. Liebmann, 285 U. S. 262, 311 (1932) (dissenting opinion).

I
James Dale joined BSA as a Cub Scout in 1978, when he was eight years
old. Three years later he became a Boy Scout, and he remained a member
until his 18th birthday. Along the way, he earned 25 merit badges, was

In its "exercise of this high power" today, the Court does not accord this

admitted into the prestigious Order of the Arrow, and was awarded the rank

"courageous State" the respect that is its due.

of Eagle Scout-an honor given to only three percent of all Scouts. In 1989,
BSA approved his application to be an Assistant Scoutmaster.

The majority holds that New Jersey's law violates BSA's right to associate
and its right to free speech. But that law

On July 19, 1990, after more than 12 years of active and honored
participation, the BSA sent Dale a letter advising him of the revocation of his

place of public accommodation, publicly assisted housing accommodation,

membership. The letter stated that membership in BSA "is a privilege" that

and other real property without discrimination because of race, creed, color,

may be denied "whenever there is a concern that an individual may not meet

national origin, ancestry, age, marital status, affectional or sexual orientation,

the high standards of membership which the BSA seeks to provide for

familial status, or sex, subject only to conditions and limitations applicable

American youth." App. 135. Expressing surprise at his sudden expulsion,

alike to all persons. This opportunity is recognized as and declared to be a

Dale sent a letter requesting an explanation of the decision. Id., at 136. In

civil right."

response, BSA sent him a second letter stating that the grounds for the
decision "are the standards for leadership established by the Boy Scouts of
America, which specifically forbid membership to homosexuals." Id., at 137.
At that time, no such standard had been publicly expressed by BSA.

665

In this case, BSA contends that it teaches the young boys who are Scouts
that homosexuality is immoral. Consequently, it argues, it would violate its

does not "impos[e] any serious burdens" on BSA's "collective effort on behalf

right to associate to force it to admit homosexuals as members, as doing so

of [its] shared goals," Roberts v. United States Jaycees,468 U. S. 609, 622,

would be at odds with its own shared goals and values. This contention,

251
quite plainly, requires us to look at what, exactly, are the values that BSA

member to promise, among other things, that he will be "obedient."

actually teaches.

Accompanying definitions for the terms found in the Oath and Law are
provided in the Boy Scout Handbook and the Scoutmaster Handbook. For
instance, the Boy Scout Handbook defines "obedient" as follows:
"A Scout is OBEDIENT. A Scout follows the rules of his family, school, and

666
BSA's mission statement reads as follows: "It is the mission of the Boy

troop. He obeys the laws of his community and country. If he thinks these
rules and laws are unfair, he tries to have them changed in an orderly
manner rather than disobey them." Id., at 188 (emphasis deleted).

Scouts of America to serve others by helping to instill values in young people

and, in other ways, to prepare them to make ethical choices over their
lifetime in achieving their full potential." Id., at 184. Its federal charter
declares its purpose is "to promote, through organization, and cooperation
with other agencies, the ability of boys to do things for themselves and
others, to train them in scoutcraft, and to teach them patriotism, courage,
self-reliance, and kindred values, using the methods which were in common
use by Boy Scouts on June 15, 1916." 36 U. S. C. 23; see also App. 315316. BSA describes itself as having a "representative membership," which it
defines as "boy membership [that] reflects proportionately the characteristics
of the boy population of its service area." Id., at 65. In particular, the group
emphasizes that "[n]either the charter nor the bylaws of the Boy Scouts of
America permits the exclusion of any boy .... To meet these responsibilities

667
To bolster its claim that its shared goals include teaching that homosexuality
is wrong, BSA directs our attention to two terms appearing in the Scout Oath
and Law. The first is the phrase "morally straight," which appears in the Oath
("On my honor I will do my best ... To keep myself ... morally straight"); the
second term is the word "clean," which appears in a list of 12 characteristics
together constituting the Scout Law.
The Boy Scout Handbook defines "morally straight," as

we have made a commitment that our membership shall be representative

of all the population in every community, district, and council." Id., at 66-67
(emphasis in original).

such:
"To be a person of strong character, guide your life with honesty, purity, and

To instill its shared values, BSA has adopted a "Scout Oath" and a "Scout

justice. Respect and defend the rights of all people. Your relationships with

Law" setting forth its central tenets. For example, the Scout Law requires a

others should be honest and open. Be clean in your speech and actions, and

252
faithful in your religious beliefs. The values you follow as a Scout will help

"There's another kind of dirt that won't come off by washing. It is the kind that

you become virtuous and self-reliant." Id., at 218 (emphasis deleted).

shows up in foul language and harmful thoughts.

The Scoutmaster Handbook emphasizes these points about being "morally

"Swear words, profanity, and dirty stories are weapons that ridicule other

straight":

people and hurt their feelings. The same is true of racial slurs and jokes
making fun of ethnic groups or people with physical or mental limitations. A

"In any consideration of moral fitness, a key word has to be 'courage.' A

Scout knows there is no kindness or honor in such mean-spirited behavior.

boy's courage to do what his head and his heart tell him is right. And the

He avoids it in his own words and deeds. He defends those who are targets

courage to refuse to do what his heart and his head say is wrong. Moral

of insults." Id., at 225-226 (emphasis in original); see also id., at 189.2

fitness, like emotional fitness, will clearly present opportunities for wise
guidance by an alert Scoutmaster." Id., at 239-240.

It is plain as the light of day that neither one of these principles-"morally

straight" and "clean"-says the slightest thing about homosexuality. Indeed,

As for the term "clean," the Boy Scout Handbook offers the following:
"A Scout is CLEAN. A Scout keeps his body and mind fit and clean. He
chooses the company of those who live by these same ideals. He helps keep
his home and community clean.
"You never need to be ashamed of dirt that will wash off. If you play hard and
work hard you can't help get-

neither term in the Boy

2 Scoutmasters are instructed to teach what it means to be "clean" using the
following lesson:
"(Hold up two cooking pots, one shiny bright on the inside but sooty outside,
the other shiny outside but dirty inside.) Scouts, which of these pots would
you rather have your food cooked in? Did I hear somebody say, 'Neither
one?'
"That's not a bad answer. We wouldn't have much confidence in a patrol
cook who didn't have his pots shiny both inside and out.

668
"But if we had to make a choice, we would tell the cook to use the pot that's
ting dirty. But when the game is over or the work is done, that kind of dirt
disappears with soap and water.

clean inside. The same idea applies to people.

253
"Most people keep themselves clean outside. But how about the inside? Do

"Your parents or guardian or a sex education teacher should give you the

we try to keep our minds and our language clean? I think that's even more

facts about sex that you must know." Boy Scout Handbook (1992) (reprinted

important than keeping the outside clean.

in App. 211). To be sure, Scouts are not forbidden from asking their

"A Scout, of course, should be clean inside and out. Water, soap, and a
toothbrush tak[e] care of the outside. Only your determination will keep the
inside clean. You can do it by following the Scout Law and the example of
people you respect-your parents, your teachers, your clergyman, or a good
buddy who is trying to do the same thing." App.289-290.

Scoutmaster about issues of a sexual nature, but Scoutmasters are, literally,

the last person Scouts are encouraged to ask: "If you have questions about
growing up, about relationships, sex, or making good decisions, ask. Talk
with your parents, religious leaders, teachers, or
Scoutmaster." Ibid. Moreover, Scoutmasters are specifically directed to steer
curious adolescents to other sources of information:
"If Scouts ask for information regarding ... sexual activity, answer honestly
and factually, but stay within your realm of expertise and comfort. If a Scout
has serious concerns that you cannot answer, refer him to his family,

669

religious leader, doctor, or other professional." Scoutmaster Handbook

(1990) (reprinted in App. 264).

Scouts' Law and Oath expresses any position whatsoever on sexual matters.
More specifically, BSA has set forth a number of rules for Scoutmasters
BSA's published guidance on that topic underscores this point. Scouts, for

when these types of issues come up:

example, are directed to receive their sex education at home or in school,

but not from the organization:

"You may have boys asking you for information or advice about sexual
matters ....
"How should you handle such matters?
"Rule number 1: You do not undertake to instruct Scouts, in any formalized
manner, in the subject of sex and family life. The reasons are that it is not
construed to be Scouting's proper area, and that you are probably not well
qualified to do this.

254
"Rule number 2: If Scouts come to you to ask questions or to seek advice,

In light of BSA's self-proclaimed ecumenism, furthermore, it is even more

you would give it within your compe-

difficult to discern any shared goals or common moral stance on

homosexuality. Insofar as religious matters are concerned, BSA's bylaws
state that it is "absolutely nonsectarian in its attitude toward ... religious
training." Id., at 362. "The BSA does not define what constitutes duty to God
or the practice of religion. This is the responsibility of parents and religious

670
tence. A boy who appears to be asking about sexual intercourse, however,
may really only be worried about his pimples, so it is well to find out just what
information is needed.
"Rule number 3: You should refer boys with sexual problems to persons
better qualified than you [are] to handle them. If the boy has a spiritual leader
or a doctor who can deal with them, he should go there. If such persons are
not available, you may just have to do the best you can. But don't try to play
a highly professional role. And at the other extreme, avoid passing the buck."
Scoutmaster Handbook (1972) (reprinted in App. 546547) (emphasis added).

leaders." Id., at 76. In fact, many diverse religious organizations sponsor

local Boy Scout troops. Brief for Petitioners 3. Because a number of religious
groups do not view homosexuality as immoral or wrong and reject
discrimination against homosexuals,3 it is exceedingly difficult to believe that
BSA none3 See, e. g., Brief for Deans of Divinity Schools and Rabbinical Institutions
as Amicus Curiae 8 ("The diverse religi[ous] traditions of this country present
no coherent moral message that excludes gays and lesbians from
participating as full and equal members of those institutions. Indeed, the
movement among a number of the nation's major religious institutions for
many decades has been toward public recognition of gays and lesbians as
full members of moral communities, and acceptance of gays and lesbians as
religious leaders, elders and clergy"); Brief for General Board of Church and
Society of the United Methodist Church et al. as

671

255
theless adopts a single particular religious or moral philosophy when it

beliefs"); supra, at 668, n. 2 ("by following ... the example of ... your

comes to sexual orientation. This is especially so in light of the fact that

clergyman"); supra, at 669 ("If you have questions about ... sex, ... [t]alk with

Scouts are advised to seek guidance on sexual matters from their religious

your ... religious leade[r]"); ibid. ("If Scouts ask for information regarding ...

leaders (and Scoutmasters are told to refer Scouts to them); 4 BSA surely is

sexual activity ... refer him to his ... religious leader"); supra, at 670 ("You

aware that some religions do not teach that homosexuality is wrong.

should refer boys with sexual problems to [their] spiritual leader").

II
The Court seeks to fill the void by pointing to a statement of "policies and
procedures relating to homosexuality and Scouting," App. 453, signed by
BSA's President and Chief Scout Executive in 1978 and addressed to the

672

members of the Executive Committee of the national organization. Ante, at

"5. Q. Should a professional or non-professional individual who openly

651-652. The letter says that the BSA does "not believe that homosexuality

declares himself to be a homosexual be terminated?

and leadership in Scouting are appropriate." App. 454. But when

the entire 1978 letter is read, BSA's position is far more equivocal:

"A. Yes, in the absence of any law to the contrary.

"4. Q. Mayan individual who openly declares himself to be a homosexual be

At the present time we are unaware of any statute or ordinance in the United

employed by the Boy Scouts of America as a professional or non-

States which prohibits discrimination against individual's employment upon

professional?

the basis of homosexuality. In the event that such a law was applicable, it
would be necessary for the Boy Scouts of America to obey it, in this case as

"A. Boy Scouts of America does not knowingly employ homosexuals as

in Paragraph J, above. It is our position, however, that homosexuality and

professionals or non-professionals. We are unaware of any present laws

professional or non-professional employment in Scouting are not

which would prohibit this policy.

appropriate." Id., at 454-455 (emphasis added).

Amicus Curiae 3 (describing views of the United Methodist Church, the

Four aspects of the 1978 policy statement are relevant to the proper

Episcopal Church, the Religious Action Center of Reform Judaism, the

disposition of this case. First, at most this letter simply adopts an

United Church Board for Homeland Ministries, and the Unitarian Universalist

exclusionary membership policy. But simply adopting such a policy has

Association, all of whom reject discrimination on the basis of sexual

never been considered sufficient, by itself, to prevail on a right to associate

orientation). 4 See supra, at 667 ("Be ... faithful in your religious

claim. See infra, at 678-685.

256
Second, the 1978 policy was never publicly expressed-unlike, for example,

address the question whether the publicly proclaimed duty to obey the law

the Scout's duty to be "obedient." It was an internal memorandum, never

should prevail over the private discriminatory policy if, and when, a conflict

circulated beyond the few members of BSA's Executive Committee. It

between the two should arise-as it now has in New Jersey. At the very least,

remained, in effect, a secret Boy Scouts policy. Far from claiming any intent

then, the statement reflects no unequivocal view on homosexuality. Indeed,

to express an idea that would be burdened by the presence of homosexuals,

the statement suggests that an appropriate way for BSA to preserve its

BSA's public posture-to the world and to the Scouts themselves-remained

unpublished exclusionary policy would include an open and forthright attempt

what it had always been: one of tolerance, welcoming all classes of boys and

to seek an amendment of New Jersey's statute. ("If he thinks these rules and

young men. In this respect, BSA's claim is even weaker than those we have

laws are unfair, he tries to have them changed in an orderly manner rather

rejected in the past. See ibid.

than disobey them.")

Third, it is apparent that the draftsmen of the policy statement foresaw the

Fourth, the 1978 statement simply says that homosexuality is not

possibility that laws against discrimination might one day be amended to

"appropriate." It makes no effort to connect that statement to a shared goal

protect homosexuals from employment discrimination. Their statement

or expressive activity of the Boy Scouts. Whatever values BSA seeks to

clearly provided that, in the event such a law conflicted with their policy, a

instill in Scouts, the idea that homosexuality is not "appropriate" appears

Scout's duty to be "obedient" and "obe[y] the laws," even if "he thinks [the

entirely unconnected to, and is mentioned nowhere in, the myriad of publicly

laws] are unfair," would prevail in such a

declared values and creeds of the BSA. That idea does not appear to be
among any of the principles actually taught to Scouts. Rather, the 1978
policy appears to be no more than a private statement of a few BSA
executives that the organization wishes to exclude gays-and that wish has
nothing to do with any expression BSA actually engages in.

673
contingency. See supra, at 666. In 1978, however, BSA apparently did not
consider it to be a serious possibility that a State might one day characterize
the Scouts as a "place of public accommodation" with a duty to open its
membership to all qualified individuals. The portions of the statement dealing
with membership simply assume that membership in the Scouts is a
"privilege" that BSA is free to grant or to withhold. The statement does not

The majority also relies on four other policy statements that were issued
between 1991 and 1993.5 All of them were
5 The authorship and distribution of these statements remain obscure.
Unlike the 1978 policy-which clearly identifies the authors as the President
and the Chief Scout Executive of BSA-these later policies are unsigned. Two
of them are initialed (one is labeled "JCK"; the other says

257
"js"), but BSA never tells us to whom these initials belong. Nor do we know
how widely these statements were distributed. From the record evidence we
674
written and issued after BSA revoked Dale's membership. Accordingly, they
have little, if any, relevance to the legal question before this Court.6 In any
event, they do not bolster BSA's claim.
In 1991, BSA issued two statements both stating: "We believe that
homosexual conduct is inconsistent with the requirement in the Scout Oath
that a Scout be morally straight and in the Scout Law that a Scout be clean
in word and deed, and that homosexuals do not provide a desirable role
model for Scouts." App. 457-458. A third statement issued in 1992 was

have, it appears that they were not as readily available as the Boy Scout and
Scoutmaster Handbooks; indeed, they appear to be quite difficult to get a
hold of. See App. 662, 668-669.
6 Dale's complaint requested three forms of relief: (1) a declaration that his
rights under the New Jersey statute had been violated when his membership
was revoked; (2) an order reinstating his membership; and (3) compensatory
and punitive damages. Id., at 27. Nothing that BSA could have done after the
revocation of his membership could affect Dale's first request for relief,
though perhaps some possible postrevocation action could have influenced
the other two requests for relief.

substantially the same. Id., at 459. By 1993, however, the policy had
changed:
"BSA Position
"The Boy Scouts of America has always reflected the expectations that
Scouting families have had for the organization.
"We do not believe that homosexuals provide a role model consistent with
these expectations.

675
statements tried to tie BSA's exclusionary policy to the meaning of the Scout
Oath and Law, the 1993 statement abandoned that effort. Rather, BSA's
1993 homosexual exclusion policy was based on its view that including gays
would be contrary to "the expectations that Scouting families have had for

"Accordingly, we do not allow for the registration of avowed homosexuals as

the organization." Ibid. Instead of linking its policy to its central tenets or

members or as leaders of the BSA." Id., at 461.

shared goals-to teach certain definitions of what it means to be "morally

straight" and "clean"-BSA chose instead to justify its policy on the

Aside from the fact that these statements were all issued after Dale's

"expectatio[n]" that its members preferred to exclude homosexuals. The

membership was revoked, there are four important points relevant to them.

1993 policy statement, in other words, was not based on any expressive

First, while the 1991 and 1992

258
activity or on any moral view about homosexuality. It was simply an

Third, BSA never took any clear and unequivocal position on homosexuality.

exclusionary membership policy, similar to those we have held insufficient in

Though the 1991 and 1992 policies state one interpretation of "morally

the past. See infra, at 678-685.

straight" and "clean," the group's published definitions appearing in the Boy

Second, even during the brief period in 1991 and 1992, when BSA tried to
connect its exclusion of homosexuals to its definition of terms found in the
Oath and Law, there is no evidence that Scouts were actually taught
anything about homosexuality's alleged inconsistency with those principles.
Beyond the single sentence in these policy statements, there is no indication
of any shared goal of teaching that homosexuality is incompatible with being
"morally straight" and "clean." Neither BSA's mission statement nor its official
membership policy was altered; no Boy Scout or Scoutmaster Handbook

Scout and Scoutmaster Handbooks take quite another view. And BSA's
broad religious tolerance combined with its declaration that sexual matters
are not its "proper area" render its views on the issue equivocal at best and
incoherent at worst. We have never held, however, that a group can throw
together any mixture of contradictory positions and then invoke the right to
associate to defend anyone of those views. At a minimum, a group seeking
to prevail over an antidiscrimination law must adhere to a clear and
unequivocal view.

was amended to reflect the policy statement; no lessons were imparted to

Fourth, at most the 1991 and 1992 statements declare only that BSA

Scouts; no change was made to BSA's policy on limiting discussion of sexual

believed "homosexual conduct is inconsistent with the requirement in the

matters; and no effort was made to restrict acceptable religious affiliations to

Scout Oath that a Scout be morally straight and in the Scout Law that a

those that condemn homosexuality. In short, there is no evidence that this

Scout be clean in word and deed." App. 457 (emphasis added). But New

view was part of any collective effort to foster beliefs about homosexuality.7

Jersey's law prohibits discrimination on the basis of sexual orientation. And

7 Indeed, the record evidence is to the contrary. See, e. g., App. 666-669
(affidavit of former Boy Scout whose young children were Scouts, and was

when Dale was expelled from the Boy Scouts, BSA said it did so because of
his sexual orientation, not because of his sexual conduct.8

himself an assistant scoutmaster and Merit Badge counselor) ("I never heard

It is clear, then, that nothing in these policy statements supports BSA's claim.

and am not aware of any discussion about homosexuality that oc-

The only policy written before the revocation of Dale's membership was an
equivocal, undisclosed statement that evidences no connection between the
group's discriminatory intentions and its expressive interests. The later
policies demonstrate a brief-though ulti-

676

cUlTed during any Scouting meeting or function .... Prior to September 1991,
I never heard any mention whatsoever of homosexuality during any Scouting
function").

259
8 At oral argument, BSA's counsel was asked: "[W]hat if someone is

and Board of Directors of Rotary lnt'l v. Rotary Club of Duarte, 481 U. S.

homosexual in the sense of having a sexual orientation in that direction but

537 (1987)) pointing to these very cases; it was clearly on notice by 1990

does not engage in any homosexual conduct?" Counsel answered: "[I]f that

that it might well be subjected to state public accommodation

person also were to take the view that the reason they didn't engage in that

antidiscrimination laws, and that a court might one day reject its claimed right

conduct [was because] it would be morally wrong ... that person would not be

to associate. Yet it took no steps prior to Dale's expulsion to clarify how its

excluded." Tr. of Oral Arg. 8.

exclusivity was connected to its expression. It speaks volumes about the

credibility of BSA's claim to a shared goal that homosexuality is incompatible
with Scouting that since at least 1984 it had been aware of this issue-indeed,
concerned enough to twice file amicus briefs before this

677

9 See, e. g., Quinnipiac Council, Boy Scouts of America v. Commission on

Human Rights and Opportunities, 204 Conn. 287, 528 A. 2d 352 (1987)

mately abandoned-attempt to tie BSA's exclusion to its expression, but other

(challenge to BSA's exclusion of girls); Curran v. Mount Diablo Council of the

than a single sentence, BSA fails to show that it ever taught Scouts that

Boy Scouts of America, 147 Cal. App. 3d 712, 195 Cal. Rptr. 325 (1983)

homosexuality is not "morally straight" or "clean," or that such a view was

(challenge to BSA's denial of membership to homosexuals; rejecting BSA's

part of the group's collective efforts to foster a belief. Furthermore, BSA's

claimed right of association), overruled on other grounds, 17 Cal. 4th 670,

policy statements fail to establish any clear, consistent, and unequivocal

952 P. 2d 218 (1998).

position on homosexuality. Nor did BSA have any reason to think Dale's
sexual conduct, as opposed to his orientation, was contrary to the group's
values.
BSA's inability to make its position clear and its failure to connect its alleged
policy to its expressive activities is highly significant. By the time Dale was

678

expelled from the Boy Scouts in 1990, BSA had already been engaged in

Court-yet it did nothing in the intervening six years (or even in the years after

several suits under a variety of state antidiscrimination public

Dale's explusion) to explain clearly and openly why the presence of

accommodation laws challenging various aspects of its membership policy.9

homosexuals would affect its expressive activities, or to make the view of

Indeed, BSA had filed amicusbriefs before this Court in two earlier right to

"morally straight" and "clean" taken in its 1991 and 1992 policies a part of the

associate cases (Roberts v. United States Jaycees, 468 U. S. 609 (1984),

260
values actually instilled in Scouts through the Handbook, lessons, or
otherwise.
III

679

BSA's claim finds no support in our cases. We have recognized "a right to

firms,l1 and labor organizations.12 In fact, until today, we have never once

associate for the purpose of engaging in those activities protected by the

found a claimed right to associate in the selection of members to prevail in

First Amendmentspeech, assembly, petition for the redress of grievances,

the face of a State's antidiscrimination law. To the contrary, we have squarely

and the exercise of religion." Roberts, 468 U. S., at 618. And we have

held that a State's antidiscrimination law does not violate a group's right to

acknowledged that "when the State interferes with individuals' selection of

associate simply because the law conflicts with that group's exclusionary

those with whom they wish to join in a common endeavor, freedom of

membership policy.

association ... may be implicated." Ibid. But "[t]he right to associate for
expressive purposes is not ... absolute"; rather, "the nature and degree of
constitutional protection afforded freedom of association may vary depending
on the extent to which ... the constitutionally protected liberty is at stake in a
given case." Id., at 623, 618. Indeed, the right to associate does not mean
"that in every setting in which individuals exercise some discrimination in
choosing associates, their selective process of inclusion and exclusion is
protected by the Constitution." New York State Club Assn., Inc. v. City of
New York, 487 U. S. 1, 13 (1988). For example, we have routinely and easily
rejected assertions of this right by expressive organizations with
discriminatory membership policies, such as private schools,lO law
10 Runyon v. McCrary, 427 U. S. 160, 175-176 (1976) ("[T]he Court has
recognized a First Amendment right 'to engage in association for the
advancement of beliefs and ideas ... .' From this principle it may be assumed
that parents have a First Amendment right to send their children to
educational institutions that promote the belief that racial segregation is
desirable, and that the children have an equal right to attend such insti-

In Roberts v. United States Jaycees, 468 U. S. 609 (1984), we addressed

just such a conflict. The Jaycees was a nonprofit membership organization
"'designed to inculcate in the individual membership ... a spirit of genuine
Americanism and civic interest, and ... to provide ... an avenue for intelligent
participation by young men in the affairs of their community.'" Id., at 612-613.
The organization was divided into local chapters, described as "'young men's
organization[s],'" in which regular membership was restricted to males
between the ages of 18 and 35. Id., at 613. But Minnesota's Human Rights
Act, which applied to the Jaycees, made it unlawful to "'deny any person the
full and equal
tutions. But it does not follow that the practice of excluding racial minorities
from such institutions is also protected by the same principle" (citation
omitted)).
11 Hishon v. King & Spalding, 467 U. S. 69, 78 (1984) ("[R]espondent argues
that application of Title VII in this case would infringe constitutional rights

261
of ... association. Although we have recognized that the activities of lawyers

less restrictive of associational freedoms." Id., at 623. We found the State's

may make a 'distinctive contribution ... to the ideas and beliefs of our society,'

purpose of eliminating discrimination is a compelling state interest that is

respondent has not shown how its ability to fulfill such a function would be

unrelated to the suppression of ideas. Id., at 623-626. We also held that

inhibited by a requirement that it consider petitioner for partnership on her

Minnesota's law is the least restrictive means of achieving that interest. The

merits. Moreover, as we have held in another context, '[i]nvidious private

Jaycees had "failed to demonstrate that the Act imposes any serious

discrimination may be characterized as a form of exercising freedom of

burdens on the male members' freedom of expressive association." Id., at

association protected by the First Amendment, but it has never been

626. Though the Jaycees had "taken public positions on a number of diverse

accorded affirmative constitutional protections'" (citations omitted)).

issues, [and] ... regularly engage in a variety of ... activities worthy of

12 Railway Mail Assn. v. Corsi, 326 U. S. 88, 93-94 (1945) ("Appellant first
contends that [the law prohibiting racial discrimination by labor organizations]
interfere[s] with its right of selection to membership .... We see no
constitutional basis for the contention that a state cannot protect workers
from exclusion solely on the basis of race").

constitutional protection under the First Amendment," there was "no basis in
the record for concluding that admission of women as full voting members
will impede the organization's ability to engage in these protected activities
or to disseminate its preferred views." Id., at 626-627. "The Act," we held,
"requires no change in the Jaycees' creed of promoting the interest of young
men, and it imposes no restrictions on the organization's ability to exclude
individuals with ideologies or philosophies different from those of its existing
members." Id., at 627.
We took a similar approach in Board of Directors of Rotary Int'l v. Rotary

680
enjoyment of ... a place of public accommodation because of ... sex.'" Id., at
615. The Jaycees, however, claimed that applying the law to it violated its
right to associate-in particular its right to maintain its selective membership

Club of Duarte, 481 U. S. 537 (1987). Rotary International, a nonprofit

corporation, was founded as "'an organization of business and professional
men united worldwide who provide humanitarian service, encourage high
ethical standards in all vocations, and help build good-

policy.
We rejected that claim. Cautioning that the right to associate is not
"absolute," we held that "[i]nfringements on that right may be justified by
regulations adopted to serve compelling state interests, unrelated to the
suppression of ideas, that cannot be achieved through means significantly

681

262
will and peace in the world.'" Id., at 539. It admitted a cross section of worthy

admit girls as members" and "Girl Scout Troops would be forced to admit

business and community leaders, id., at 540, but refused membership to

boys." Brief for Petitioners 37. The New Jersey Supreme Court had no

women. "[T]he exclusion of women," explained the group's General

occasion to address that question, and no such issue is tendered for our

Secretary, "results in an 'aspect of fellowship ... that is enjoyed by the

decision. I note, however, the State of New Jersey's obser-

present male membership.'" Id., at 541. That policy also allowed the
organization "to operate effectively in foreign countries with varied cultures
and social mores." Ibid. Though California's Civil Rights Act, which applied to
Rotary International, prohibited discrimination on the basis of sex, id., at 541542, n. 2, the organization claimed a right to associate, including the right to
select its members.

682
Several principles are made perfectly clear by Jaycees and Rotary

As in Jaycees, we rejected the claim, holding that "the evidence fails to

Club. First, to prevail on a claim of expressive association in the face of a

demonstrate that admitting women to Rotary Clubs will affect in any

State's antidiscrimination law, it is not enough simply to engage in some

significant way the existing members' ability to carry out their various

kind of expressive activity. Both the Jaycees and the Rotary Club engaged in

purposes." 481 U. S., at 548. "To be sure," we continued, "Rotary Clubs

expressive activity protected by the First Amendment,14 yet that fact was not

engage in a variety of commendable service activities that are protected by

dispositive. Second, it is not enough to adopt an openly avowed exclusionary

the First Amendment. But [California's Civil Rights Act] does not require the

membership policy. Both the Jaycees and the Rotary Club did that as

clubs to abandon or alter any of these activities. It does not require them to

wel1.15 Third, it is not sufficient merely to articulate some connection

abandon their basic goals of humanitarian service, high ethical standards in

between the group's expressive activities and its exclusionary policy. The

all vocations, good will, and peace. Nor does it require them to abandon their

Rotary Club, for example, justified its male-only membership policy by

classification system or admit members who do not reflect a cross section of

pointing to the "'aspect of fellowship ... that is enjoyed by the [exclusively]

the community." Ibid. Finally, even if California's law worked a "slight

male membership'" and by claiming that only with an exclusively male

infringement on Rotary members' right of expressive association, that

membership

infringement is justified because it serves the State's compelling interest in

eliminating discrimination against women." Id., at 549.13

vation that BSA ignores the exemption contained in New Jersey's law for"
'any place of public accommodation which is in its nature reasonably

13 BSA urged on brief that under the New Jersey Supreme Court's reading

restricted exclusively to one sex,'" including, but not limited to, "'any summer

of the State's antidiscrimination law, "Boy Scout Troops would be forced to

camp, day camp, or resort camp, bathhouse, dressing room, swimming pool,

263
gymnasium, comfort station, dispensary, clinic or hospital, or school or

Rather, in Jaycees, we asked whether Minnesota's Human Rights Law

educational institution which is restricted exclusively to individuals of one

requiring the admission of women "impose[d] any serious burdens" on the

sex.''' See Brief for State of New Jersey as Amicus Curiae 12-13, n. 2 (citing

group's "collective effort on behalf of [its] shared goals." 468 U. S., at

N. J. Stat. Ann. 10:5-12(f) (West 1993)).

622,626-627 (emphases added). Notwithstanding the group's obvious

14 See Roberts v. United States Jaycees, 468 U. S. 609, 626-627 (1984)

("[T]he organization [has] taken public positions on a number of diverse
issues ... worthy of constitutional protection under the First Amendment"
(citations omitted)); Board of Directors of Rotary Int'lv. Rotary Club of
Duarte, 481 U. S. 537, 548 (1987) ("To be sure, Rotary Clubs engage in a
variety of commendable service activities that are protected by the First
Amendment").
15The Jaycees openly stated that it was an organization designed to serve
the interests of "young men"; its local chapters were described as "'young
men's organization[s]"'; and its membership policy contained an express
provision reserving regular membership to young men. Jaycees, 468 U. S.,
at 612-613. Likewise, Rotary International expressed its preference for maleonly membership: It proclaimed that it was" 'an organization of business and
professional men'" and its membership policy expressly excluded
women.Rotary Club, 481 U. S., at 539, 541 (emphasis added).

publicly stated exclusionary policy, we did not view the inclusion of women
as a "serious burden" on the Jaycees' ability to engage in the protected
speech of its choice. Similarly, in Rotary Club, we asked whether California's
law would "affect in anysignificant way the existing members' ability" to
engage in their protected speech, or whether the law would require the clubs
"to abandon their basic goals." 481 U. S., at 548 (emphases added); see
also Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston,
Inc., 515 U. S. 557, 581 (1995) ("[A] private club could exclude an applicant
whose manifest views were at odds with a position taken by the club's
existing members"); New York State Club Assn., 487 U. S., at 13 (to prevail
on a right to associate claim, the group must "be able to show that it is
organized for specific expressive purposes and that it will not be able to
advocate its desired viewpoints nearly as effectively if it cannot confine its
membership to those who share the same sex, for example, or the same
religion"); NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 462-463
(1958) (asking whether law "entail[ed] the likelihood of a substantial restraint
upon the exercise by petitioner's members of their right to freedom of
association" and whether law is "likely to affect adversely the ability of
petitioner and its members to pursue their collective effort to foster beliefs").
The relevant question is whether the mere inclusion of the person at issue

683

would "impose any serious burden," "affect in any significant way," or be "a
substantial restraint upon" the organization's "shared goals," "basic goals," or

could it "operate effectively" in foreign countries. Rotary Club, 481 U. S., at

"collective effort to foster beliefs." Accordingly, it is necessary to examine

541.

what, exactly, are

264
alter any of" its activities. 481 U. S., at 548. The evidence relied on by the
Court is not to the contrary. The undisclosed 1978 policy certainly adds
684
BSA's shared goals and the degree to which its expressive activities would
be burdened, affected, or restrained by including homosexuals.

nothing to the actual views disseminated to the Scouts. It simply says that
homosexuality is not "appropriate." There is no reason to give that policy
statement more weight than Rotary International's assertion that all-male
membership

The evidence before this Court makes it exceptionally clear that BSA has, at
most, simply adopted an exclusionary membership policy and has no shared
goal of disapproving of homosexuality. BSA's mission statement and federal
charter say nothing on the matter; its official membership policy is silent; its
Scout Oath and Law-and accompanying definitions-are devoid of any view
on the topic; its guidance for Scouts and Scoutmasters on sexuality declare
that such matters are "not construed to be Scouting's proper area," but are
the province of a Scout's parents and pastor; and BSA's posture respecting
religion tolerates a wide variety of views on the issue of homosexuality.
Moreover, there is simply no evidence that BSA otherwise teaches anything
in this area, or that it instructs Scouts on matters involving homosexuality in
ways not conveyed in the Boy Scout or Scoutmaster Handbooks. In short,
Boy Scouts of America is simply silent on homosexuality. There is no shared
goal or collective effort to foster a belief about homosexuality at all-let alone
one that is significantly burdened by admitting homosexuals.
As in Jaycees, there is "no basis in the record for concluding that admission
of [homosexuals] will impede the [Boy Scouts'] ability to engage in [its]
protected activities or to disseminate its preferred views" and New Jersey's
law "requires no change in [BSA's] creed." 468 U. S., at 626-627. And
like Rotary Club, New Jersey's law "does not require [BSA] to abandon or

685
fosters the group's "fellowship" and was the only way it could "operate
effectively." As for BSA's postrevocation statements, at most they simply
adopt a policy of discrimination, which is no more dispositive than the openly
discriminatory policies held insufficient inJaycees and Rotary Club; there is
no evidence here that BSA's policy was necessary toor even a part of-BSA's
expressive activities or was ever taught to Scouts.
Equally important is BSA's failure to adopt any clear position on
homosexuality. BSA's temporary, though ultimately abandoned, view that
homosexuality is incompatible with being "morally straight" and "clean" is a
far cry from the clear, unequivocal statement necessary to prevail on its
claim. Despite the solitary sentences in the 1991 and 1992 policies, the
group continued to disclaim any single religious or moral position as a
general matter and actively eschewed teaching any lesson on sexuality. It
also continued to define "morally straight" and "clean" in the Boy Scout and
Scoutmaster Handbooks without any reference to homosexuality. As noted

265
earlier, nothing in our cases suggests that a group can prevail on a right to

looking at what a litigant asserts in his or her brief and inquiring no further. It

expressive association if it, effectively, speaks out of both sides of its mouth.

is even more astonishing in the First Amendment area, because, as the

A State's antidiscrimination law does not impose a "serious burden" or a

majority itself acknowledges, "we are obligated to independently review the

"substantial restraint" upon the group's "shared goals" if the group itself is

factual record." Ante, at 648649. It is an odd form of independent review that

unable to identify its own stance with any clarity.

consists of deferring entirely to whatever a litigant claims. But the majority

IV
The majority pretermits this entire analysis. It finds that BSA in fact"
'teach[es] that homosexual conduct is not morally straight.'" Ante,at 651. This
conclusion, remarkably, rests entirely on statements in BSA's briefs.
See ibid. (citing Brief for Petitioners 39; Reply Brief for Petitioners 5).
Moreover, the majority insists that we must "give deference to an
association's assertions regarding the nature of its expression" and "we must
also give deference to an association's view of what would impair its
expression." Ante, at

insists that our inquiry must be "limited," ante, at 650, because "it is not the
role of the courts to reject a group's expressed values because they disagree
with those values or find them internally inconsistent," ante, at 651. See also
Brief for Petitioners 25 ("[T]he Constitution protects [BSA's] ability to control
its own message").
But nothing in our cases calls for this Court to do any such thing. An
organization can adopt the message of its choice, and it is not this Court's
place to disagree with it. But we must inquire whether the group is, in fact,
expressing a message (whatever it may be) and whether that message (if
one is expressed) is significantly affected by a State's antidiscrimination law.
More critically, that inquiry requires our independent analysis, rather than
deference to a group's litigating posture. Reflection on the subject dictates
that such an inquiry is required.

686
653. So long as the record "contains written evidence" to support a group's
bare assertion, "[w]e need not inquire further." Ante, at 651. Once the
organization "asserts" that it engages in particular expression, ibid., "[w]e
cannot doubt" the truth of that assertion, ante, at 653.
This is an astounding view of the law. I am unaware of any previous instance
in which our analysis of the scope of a constitutional right was determined by

Surely there are instances in which an organization that truly aims to foster a
belief at odds with the purposes of a State's antidiscrimination laws will have
a First Amendment right to association that precludes forced compliance with
those laws. But that right is not a freedom to discriminate at will, nor is it a
right to maintain an exclusionary member-

266
687

than the determination of a State to extend the area of nondiscrimination

beyond that which the Constitution itself exacts." Railway

ship policy simply out of fear of what the public reaction would be if the
group's membership were opened up. It is an implicit right designed to
protect the enumerated rights of the First Amendment, not a license to act on
any discriminatory impulse. To prevail in asserting a right of expressive
association as a defense to a charge of violating an antidiscrimination law,

688

the organization must at least show it has adopted and advocated an

unequivocal position inconsistent with a position advocated or epitomized by
the person whom the organization seeks to exclude. If this Court were to
defer to whatever position an organization is prepared to assert in its briefs,
there would be no way to mark the proper boundary between genuine
exercises of the right to associate, on the one hand, and sham claims that
are simply attempts to insulate nonexpressive private discrimination, on the
other hand. Shielding a litigant's claim from judicial scrutiny would, in turn,
render civil rights legislation a nullity, and turn this important constitutional
right into a farce. Accordingly, the Court's prescription of total deference will
not do. In this respect, Justice Frankfurter's words seem particularly apt:
"Elaborately to argue against this contention is to dignify a claim devoid of
constitutional substance. Of course a State may leave abstention from such
discriminations to the conscience of individuals. On the other hand, a State

Mail Assn. v. Corsi, 326 U. S. 88, 98 (1945) (concurring opinion).

There is, of course, a valid concern that a court's independent review may
run the risk of paying too little heed to an organization's sincerely held views.
But unless one is prepared to turn the right to associate into a free pass out
of antidiscrimination laws, an independent inquiry is a necessity. Though the
group must show that its expressive activities will be substantially burdened
by the State's law, if that law truly has a significant effect on a group's
speech, even the subtle speaker will be able to identify that impact.
In this case, no such concern is warranted. It is entirely clear that BSA in fact
expresses no clear, unequivocal message burdened by New Jersey's law.
V

may choose to put its authority behind one of the cherished aims of

Even if BSA's right to associate argument fails, it nonetheless might have a

American feeling by forbidding indulgence in racial or religious prejudice to

First Amendment right to refrain from including debate and dialogue about

another's hurt. To use the Fourteenth Amendment as a sword against such

homosexuality as part of its mission to instill values in Scouts. It can, for

State power would stultify that Amendment. Certainly the insistence by

example, advise Scouts who are entering adulthood and have questions

individuals on their private prejudices as to race, color or creed, in relations

about sex to talk "with your parents, religious leaders, teachers, or

like those now before us, ought not to have a higher constitutional sanction

Scoutmaster," and, in turn, it can direct Scoutmasters who are asked such

267
questions "not undertake to instruct Scouts, in any formalized manner, in the

"force an American citizen publicly to profess any statement of belief," even if

subject of sex and family life" because "it is not construed to be Scouting's

doing so does not require the person to "forego any contrary convictions of

proper area." See supra, at 669-670. Dale's right to advocate certain beliefs

their own." Id., at 633634. "[O]ne important manifestation of the principle of

in a public forum or in a private debate does not include a right to advocate

free speech is that one who chooses to speak may also decide 'what not to

these ideas when he is working as a Scoutmaster. And BSA cannot be

say.'" Hurley, 515 U. S., at 573. Though the majority mistakenly treats this

compelled to include a message about homosexuality among the values it

statement as going to the right to associate, it actually refers to a free speech

actually chooses to teach its Scouts, if it would prefer to remain silent on that

claim. See id., at 564-565, 580-581 (noting distinction between free speech

subject.

and right to associate claims). As with the right to associate claim, though,

In West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943), we recognized

that the government may not "requir[e] affirmation of a belief and an attitude
of mind," nor

the court is obligated to engage in an independent inquiry into whether the

mere inclusion of homosexuals would actually force BSA to proclaim a
message it does not want to send. Id., at 567.
In its briefs, BSA implies, even if it does not directly argue, that Dale would
use his Scoutmaster position as a "bully pulpit" to convey immoral messages
to his troop, and therefore his inclusion in the group would compel BSA to
include a message it does not want to impart. Brief for Petitioners 21-22.

689

Even though the majority does not endorse that argument, I think it is
important to explain why it lacks merit, before considering the argument the
majority does accept.
BSA has not contended, nor does the record support, that Dale had ever
advocated a view on homosexuality to his troop before his membership was
revoked. Accordingly, BSA's revocation could only have been based on an
assumption that he would do so in the future. But the only information BSA
had at the time it revoked Dale's membership was a newspaper article
describing a seminar at Rutgers University on the topic of homosexual
teenagers that Dale attended. The relevant passage reads:

268
"James Dale, 19, co-president of the Rutgers University Lesbian Gay

engage in expressive activities outside of their troop, and surely BSA does

Alliance with Sharice Richardson, also 19, said he lived a double life while in

not want all of that expression to be carried on inside the troop. For example,

high school, pretending to be straight while attending a military academy.

a Scoutmaster may be a member of a religious group that encourages its

followers to convert others to its faith. Or a Scoutmaster may belong to a
political party that encourages its members to advance its views among
family and friends.16 Yet BSA does not think it is appropriate for
Scoutmasters to proselytize a particular faith to unwilling Scouts or to

690

attempt to convert them from one

"He remembers dating girls and even laughing at homophobic jokes while at

16 Scoutmaster Handbook (1990) (reprinted in App. 273) ("Scouts and

school, only admitting his homosexuality during his second year at Rutgers.

Scouters are encouraged to take active part in political mattersas

"'I was looking for a role model, someone who was gay and accepting of me,'

individuals" (emphasis added)).

Dale said, adding he wasn't just seeking sexual experiences, but a

community that would take him in and provide him with a support network
and friends." App. 517.
Nothing in that article, however, even remotely suggests that Dale would
advocate any views on homosexuality to his troop. The Scoutmaster
Handbook instructs Dale, like all Scoutmasters, that sexual issues are not
their "proper area," and there is no evidence that Dale had any intention of
violating this rule. Indeed, from all accounts Dale was a model Boy Scout
and Assistant Scoutmaster up until the day his membership was revoked,
and there is no reason to believe that he would suddenly disobey the
directives of BSA because of anything he said in the newspaper article.

691
religion to anotherP Nor does BSA think it appropriate for Scouts or
Scoutmasters to bring politics into the troop.18 From all accounts, then, BSA
does not discourage or forbid outside expressive activity, but relies on
compliance with its policies and trusts Scouts and Scoutmasters alike not to
bring unwanted views into the organization. Of course, a disobedient
member who flouts BSA's policy may be expelled. But there is no basis for
BSA to presume that a homosexual will be unable to comply with BSA's

To be sure, the article did say that Dale was co-president of the Lesbian/Gay

policy not to discuss sexual matters any more than it would presume that

Alliance at Rutgers University, and that group presumably engages in

politically or religiously active members could not resist the urge to

advocacy regarding homosexual issues. But surely many members of BSA

proselytize or politicize during troop meetings.19 As BSA itself puts it, its

269
rights are "not implicated unless a prospective leader presents himself as a
role model incon17Bylaws of the Boy Scouts of America, Art. IX, 1, cl. 3 (reprinted in App.
363) ("In no case where a unit is connected with a church or other
distinctively religious organization shall members of other denominations or
faith be required, because of their membership in the unit, to take part in or
observe a religious ceremony distinctly unique to that organization or
church").
18 Rules and Regulations of the Boy Scouts of America, Art. IX, 2, cl. 6
(reprinted in App. 407) ("The Boy Scouts of America shall not, through its
governing body or through any of its officers, its chartered councils, or
members, involve the Scouting movement in any question of a political
character").

692
sistent with Boy Scouting's understanding of the Scout Oath and Law." Brief
for Petitioners 6 (emphases added).20
The majority, though, does not rest its conclusion on the claim that Dale will
use his position as a bully pulpit. Rather, it contends that Dale's mere
presence among the Boy Scouts will itself force the group to convey a
message about homosexuality-even if Dale has no intention of doing so. The
majority holds that "[t]he presence of an avowed homosexual and gay rights
activist in an assistant scoutmaster's uniform sends a distinc[t] ... message,"
and, accordingly, BSA is entitled to exclude that message. Ante, at 655-656.
In particular, "Dale's presence in the Boy Scouts would, at the very least,

19 Consider, in this regard, that a heterosexual, as well as a homosexual,

force the organization to send a message, both to the youth members and

could advocate to the Scouts the view that homosexuality is not immoral.

the world, that the Boy Scouts accepts homosexual conduct as a legitimate

BSA acknowledges as much by stating that a heterosexual who advocates

form of be-

that view to Scouts would be expelled as well.Id., at 746 ("[Ainy persons who
advocate to Scouting youth that homosexual conduct is 'morally straight'
under the Scout Oath, or 'clean' under the Scout Law will not be registered
as adult leaders" (emphasis added)) (certification of BSA's National Director
of Program). But BSA does not expel heterosexual members who take that
view outside of their participation in Scouting, as long as they do not
advocate that position to the Scouts. Tr. of Oral Arg. 6. And if there is no
reason to presume that such a heterosexual will openly violate BSA's desire
to express no view on the subject, what reasonother than blatant
stereotyping-could justify a contrary presumption for homosexuals?

20 BSA cites three media interviews and Dale's affidavit to argue that he will
openly advance a pro-gay agenda while being a Scoutmaster. None of those
statements even remotely supports that conclusion. And all of them were
made after Dale's membership was revoked and after this litigation
commenced; therefore, they could not have affected BSA's revocation
decision.
In a New York Times interview, Dale said '''I owe it to the organization to
point out to them how bad and wrong this policy is.''' App. 513 (emphases

270
added). This statement merely demonstrates that Dale wants to use this

Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S.

litigation-not his Assistant Scoutmaster position-to make a point, and that he

557 (1995). In that case, petitioners John Hurley and the South Boston Allied

wants to make the point to the BSA organization, not to the boys in his troop.

War Veterans Council ran a privately operated St. Patrick's Day parade.

At oral argument, BSA conceded that would not be grounds for membership

Respondent, an organization known as "GLIB," represented a contingent of

revocation. Tr. of Oral Arg. 13. In a Seattle Times interview, Dale said

gays, lesbians, and bisexuals who sought to march in the petitioners' parade

Scouting is "'about giving adolescent boys a role model.''' App. 549. He did

"as a way to express pride in their Irish heritage as openly gay, lesbian, and

not say it was about giving them a role model who advocated a position on

bisexual individuals." Id., at 561. When the parade organizers refused GLIB's

homosexuality. In a television interview, Dale also said "I am gay, and I'm

admission, GLIB brought suit under Massachusetts' antidiscrimination law.

very proud of who I am .... I stand up for what I believe in .... I'm not hiding

That statute, like New Jersey's law, prohibited discrimination on account of

anything." Id., at 470. Nothing in that statement says anything about an

sexual orientation in any place of public accommodation, which the state

intention to stand up for homosexual rights in any context other than in this

courts interpreted to include the parade. Petitioners argued that forcing them

litigation. Lastly, Dale said in his affidavit that he is "open and honest about

to include GLIB in their parade would violate their free speech rights.

[his] sexual orientation." Id., at 133. Once again, like someone who is open
and honest about his political affiliation, there is no evidence in that
statement that Dale will not comply with BSA's policy when acting as a
Scoutmaster.

We agreed. We first pointed out that the St. Patrick's Day parade-like most
every parade-is an inherently expressive undertaking. Id., at 568-570. Next,
we reaffirmed that the government may not compel anyone to proclaim a
belief with which he or she disagrees. Id., at 573-574. We then found that
GLIB's marching in the parade would be an expressive act suggesting the
view "that people of their sexual orientations have as much claim to
unqualified social acceptance as heterosexuals." Id., at 574. Finally, we held

693

that GLIB's participation in the parade "would likely be perceived" as the

parade organizers' own speech-or at least as a view which they approved-

havior." Ante, at 653; see also Brief for Petitioners 24 ("By donning the

because of a parade organizer's customary control over who marches in the

uniform of an adult leader in Scouting, he would 'celebrate [his] identity' as

parade. Id., at 575. Though Hurley has a superficial similarity to the present

an openly gay Scout leader").

case, a close inspection reveals a wide gulf between that case and the one

The majority's argument relies exclusively on Hurley v.

before us today.

271
produced by others. Id., at 575-576. Rather, parade organizers are usually
understood to make the "customary determination about a unit admitted to
694
First, it was critical to our analysis that GLIB was actually conveying a
message by participating in the parade-otherwise, the parade organizers
could hardly claim that they were being forced to include any unwanted

the parade." Id., at 575.

Dale's inclusion in the Boy Scouts is nothing like the case in Hurley. His
participation sends no cognizable message to the Scouts or to the world.
Unlike GLIB, Dale did not

message at all. Our conclusion that GLIB was conveying a message was
inextricably tied to the fact that GLIB wanted to march in a parade, as well as
the manner in which it intended to march. We noted the "inherent
expressiveness of marching [in a parade] to make a point," id., at 568, and in
particular that GLIB was formed for the purpose of making a particular point

695

about gay pride, id., at 561, 570. More specifically, GLIB "distributed a fact

carry a banner or a sign; he did not distribute any factsheet; and he

sheet describing the members' intentions" and, in a previous parade, had

expressed no intent to send any message. If there is any kind of message

"marched behind a shamrock-strewn banner with the simple inscription 'Irish

being sent, then, it is by the mere act of joining the Boy Scouts. Such an act

American Gay, Lesbian and Bisexual Group of Boston.'" Id., at 570. "[A]

does not constitute an instance of symbolic speech under the First

contingent marching behind the organization's banner," we said, would

Amendment.21

clearly convey a message. Id., at 574. Indeed, we expressly distinguished

between the members of GLIB, who marched as a unit to express their views
about their own sexual orientation, on the one hand, and homosexuals who
might participate as individuals in the parade without intending to express
anything about their sexuality by doing so. Id., at 572-573.

It is true, of course, that some acts are so imbued with symbolic meaning
that they qualify as "speech" under the First Amendment. SeeUnited
States v. O'Brien, 391 U. S. 367, 376 (1968). At the same time, however,
"[w]e cannot accept the view that an apparently limitless variety of conduct
can be labeled 'speech' whenever the person engaging in the conduct

Second, we found it relevant that GLIB's message "would likely be

intends thereby to express an idea."Ibid. Though participating in the Scouts

perceived" as the parade organizers' own speech. Id., at 575. That was so

could itself conceivably send a message on some level, it is not the kind of

because "[p]arades and demonstrations ... are not understood to be so

act that we have recognized as speech. See Dallas v. Stanglin, 490 U. S. 19,

neutrally presented or selectively viewed" as, say, a broadcast by a cable

24-25 (1989).22 Indeed, if merely joining a group did constitute symbolic

operator, who is usually considered to be "merely 'a conduit' for the speech"

speech; and such speech were attributable to the group being joined; and

272
that group has the right to exclude that speech (and hence, the right to

First Amendment treatment. Under the majority's reasoning, an openly gay

exclude that person from joining), then the right of free speech effectively

male is irreversibly affixed with the label "homosexual." That label, even

becomes a limitless right to exclude for every organization, whether or not it

though unseen, communicates a message that permits his exclusion

engages in any expressive activities. That cannot be, and never has been,

wherever he goes. His openness is the sole and sufficient justification for his

the law.

ostracism. Though unintended, reliance on such a justification is tantamount

21 The majority might have argued (but it did not) that Dale had become so
publicly and pervasively identified with a position advocating the moral
legitimacy of homosexuality (as opposed to just being an individual who
openly stated he is gay) that his leadership position in BSA would
necessarily amount to using the organization as a conduit for publicizing his

to a constitutionally prescribed symbol of inferiority.23 As counsel for BSA

remarked, Dale "put a banner around his neck when he ... got himself into
the newspaper .... He created a reputation ... He can't take that banner off.
He put it on himself and, indeed, he has continued to put it on himself." See
Tr. of Oral Arg. 25.

position. But as already noted, when BSA expelled Dale, it had nothing to go

Another difference between this case and Hurley lies in the fact

on beyond the one newspaper article quoted above, and one newspaper

that Hurley involved the parade organizers' claim to determine the content of

article does not convert Dale into a public symbol for a message. BSA simply

the message they wish to give at a particular time and place. The standards

has not provided a record that establishes the factual premise for this

governing such a claim are simply different from the standards that govern

argument.

BSA's claim of a right of expressive association. Generally, a private person

22 This is not to say that Scouts do not engage in expressive activity. It is

only to say that the simple act of joining the Scouts-unlike joining a parade-is
not inherently expressive.

or a private organization has a right to refuse to broadcast a message with

which it disagrees, and a right to refuse to contradict or garble its own
specific statement at any given place or time by including the messages of
others. An expressive association claim, however, normally involves the
avowal and advocacy of a consistent position on some issue over time. This
is why a different kind of scrutiny must be given to an expressive association
claim, lest the right of expressive association simply turn into a right to

696
The only apparent explanation for the majority's holding, then, is that
homosexuals are simply so different from the rest of society that their
presence alone-unlike any other individual's-should be singled out for special

discriminate whenever some group can think of an expressive object that

would seem to be inconsistent with the ad23 See Yoshino, Suspect Symbols: The Literary Argument for Heightened
Scrutiny for Gays, 96 Colum. L. Rev. 1753,1781-1783 (1996).

273
organizations is not usually construed to convey a message on behalf of
those organizations any more than does the inclusion of women, African697
mission of some person as a member or at odds with the appointment of a
person to a leadership position in the group.
Furthermore, it is not likely that BSA would be understood to send any
message, either to Scouts or to the world, simply by admitting someone as a

Americans, reli24 For John Doe to make a public statement of his sexual orientation to the
newspapers may, of course, be a matter of great importance to John Doe.
Richard Roe, however, may be much more interested in the weekend
weather forecast. Before Dale made his statement at Rutgers, the
Scoutmaster of his troop did not know that he was gay. App. 465.

member. Over the years, BSA has generously welcomed over 87 million
young Americans into its ranks. In 1992 over one million adults were active
BSA members. 160 N. J. 562, 571, 734 A. 2d 1196, 1200 (1999). The notion
that an organization of that size and enormous prestige implicitly endorses
the views that each of those adults may express in a non-Scouting context is
simply mind boggling. Indeed, in this case there is no evidence that the
young Scouts in Dale's troop, or members of their families, were even aware
of his sexual orientation, either before or after his public statements at
Rutgers University.24 It is equally farfetched to assert that Dale's open

698
gious minorities, or any other discrete groUp.25 Surely the organizations are
not forced by antidiscrimination laws to take any position on the legitimacy of
any individual's private beliefs or private conduct.

declaration of his homosexuality, reported in a local newspaper, will

The State of New Jersey has decided that people who are open and frank

effectively force BSA to send a message to anyone simply because it allows

about their sexual orientation are entitled to equal access to employment as

Dale to be an Assistant Scoutmaster. For an Olympic gold medal winner or a

schoolteachers, police officers, librarians, athletic coaches, and a host of

Wimbledon tennis champion, being "openly gay" perhaps communicates a

other jobs filled by citizens who serve as role models for children and adults

message-for example, that openness about one's sexual orientation is more

alike. Dozens of Scout units throughout the State are sponsored by public

virtuous than concealment; that a homosexual person can be a capable and

agencies, such as schools and fire departments, that employ such role

virtuous person who should be judged like anyone else; and that

models. BSA's affiliation with numerous public agencies that comply with

homosexuality is not immoralbut it certainly does not follow that they

New Jersey's law against discrimination cannot be understood to convey any

necessarily send a message on behalf of the organizations that sponsor the

particular message endorsing or condoning the activities of all these

activities in which they excel. The fact that such persons participate in these

people.26

274
25 The majority simply announces, without analysis, that Dale's participation
alone would "force the organization to send a message."Ante, at 653. "But ...
these are merely conclusory words, barren of analysis .... For First
Amendment principles to be implicated, the State must place the citizen in
the position of either apparently or actually 'asserting as true' the
message." Wooley v. Maynard, 430 U. S. 705, 721 (1977) (REHNQUIST, J.,
dissenting).

VI
Unfavorable OpInIOnS about homosexuals "have ancient
roots." Bowers v. Hardwick, 478 U. S. 186, 192 (1986). Like equally atavistic
opinions about certain racial groups, those roots have been nourished by
sectarian doctrine. Id., at 196-197 (Burger, C. J.,
concurring);Loving v. Virginia, 388 U. S. 1,3 (1967).27 See
also Mathews v. Lucas, 427 U. S. 495, 520 (1976) (STEVENS, J.,

26BSA also argues that New Jersey's law violates its right to "intimate

dissenting) ("Habit, rather than analysis, makes it seem acceptable and

association." Brief for Petitioners 39-47. Our cases recognize a substantive

natural to distinguish between male and female, alien and citizen, legitimate

due process right "to enter into and carryon certain intimate or private

and illegitimate; for too much of our history there was the same inertia in

relationships." Rotary Club, 481 U. S., at 545. As with the First Amendment

distinguishing between black and white"). Over the years, however,

right to associate, the State may not interfere with the selection of individuals

interaction with real people, rather than mere adherence to traditional ways

in such relationships. Jaycees,468 U. S., at 618. Though the precise scope

of thinking about members of unfamiliar classes, have modified those

of the right to intimate association is unclear, "we consider factors such as

opinions. A few examples: The American Psychiatric Association's and the

size, purpose, selectivity, and whether others are excluded from critical

American Psychological Association's removal of "homosexuality" from their

aspects of the relationship" to determine whether a group is sufficiently

lists of mental disorders; 28 a move toward greater understanding within

personal to warrant this type of constitutional protection. Rotary Club, 481 U.

some religious communities;29 Justice Blackmun's classic opinion

S., at 546. Considering BSA's size, see supra, at 697, its broad purposes,

in Bowers;3o

and its non selectivity, see supra, at 666, it is impossible to conclude that
being a member of the Boy Scouts ranks among those intimate relationships
falling within this right, such as marriage, bearing children, rearing children,
and cohabitation with relatives. Rotary Club, 481 U. S., at 545.

27 In Loving, the trial judge gave this explanation of the rationale for
Virginia's antimiscegenation statute: "'Almighty God created the races white,
black, yellow, malay and red, and he placed them on separate continents.
And but for the interference with his arrangement there would be no cause
for such marriages. The fact that he separated the races shows that he did
not intend for the races to mix.''' 388 U. S., at 3.

699

28 Brief for American Psychological Association as Amicus Curiae 8. 29 See

n. 3, supra.

275
30 The significance of that opinion is magnified by comparing it with Justice

If we would guide by the light of reason, we must let our minds be bold. I

Blackmun's vote 10 years earlier in Doe v.Commonwealth's Attorney for City

respectfully dissent.

of Richmond, 425 U. S. 901 (1976). In that case, six Justicesincluding

Justice Blackmun-voted to summarily affirm the District Court's rejection of
the same due process argument that was later rejected in Bowers. Two
years later, furthermore, Justice Blackmun joined in a dissent in University of
Missouri v. Gay Lib, 434 U. S. 1080 (1978). In that case, the university had
denied recognition to a student gay rights organization. The student group
argued that in doing so, the university had violated its free speech and free
association rights. The Court of

JUSTICE SOUTER, with whom JUSTICE GINSBURG and JUSTICE

BREYER join, dissenting.
I join JUSTICE STEVENS'S dissent but add this further word on the
significance of Part VI of his opinion. There, JUSTICE STEVENS describes
the changing attitudes toward gay people and notes a parallel with the
decline of stereotypical thinking about race and gender. The legitimacy of
New
Appeals agreed with that argument. A dissent from denial of certiorari, citing
the university's argument, suggested that the proper analysis might well be
as follows:

700

"[T]he question is more akin to whether those suffering from measles have a

Georgia's invalidation of the statute upheld in Bowers; 31 and New Jersey's

constitutional right, in violation of quarantine regulations, to associate

enactment of the provision at issue in this case. Indeed, the past month

together and with others who do not presently have measles, in order to urge

alone has witnessed some remarkable changes in attitudes about

repeal of a state law providing that measle sufferers be quarantined." Id., at

homosexuals.32

1084 (REHNQUIST, J., dissenting).

That such prejudices are still prevalent and that they have caused serious

31 Powell v. State, 270 Ga. 327, 510 S. E. 2d 18 (1998).

and tangible harm to countless members of the class New Jersey seeks to
protect are established matters of fact that neither the Boy Scouts nor the
Court disputes. That harm can only be aggravated by the creation of a
constitutional shield for a policy that is itself the product of a habitual way of
thinking about strangers. As Justice Brandeis so wisely advised, "we must be
ever on our guard, lest we erect our prejudices into legal principles."

32 See, e. g., Bradsher, Big Carmakers Extend Benefits to Gay Couples,

New York Times, June 9, 2000, p. C1; Marquis, Gay Pride Day is Observed
by About 60 C. 1. A. Workers, New York Times, June 9, 2000, p. A26;
Zernike, Gay Couples are Accepted as Role Models at Exeter, New York
Times, June 12, 2000, p. A18.

276
employs to state its message. As JUSTICE STEVENS explains, no group
can claim a right of expressive association without identifying a clear position
701
Jersey's interest in forbidding discrimination on all these bases by those
furnishing public accommodations is, as JUSTICE STEVENS indicates,

to be advocated over time in an unequivocal way. To require less, and to

allow exemption from a public accommodations statute based on any
individual's difference from an alleged group ideal, however expressed and
however inconsistently claimed, would convert the right of expres-

acknowledged by many to be beyond question. The fact that we are

cognizant of this laudable decline in stereotypical thinking on homosexuality
should not, however, be taken to control the resolution of this case.
Boy Scouts of America (BSA) is entitled, consistently with its own tenets and
the open doors of American courts, to raise a federal constitutional basis for
resisting the application of New Jersey's law. BSA has done that and has
chosen to defend against enforcement of the state public accommodations
law on the ground that the First Amendment protects expressive association:
individuals have a right to join together to advocate opinions free from
government interference. See Roberts v. United States Jaycees, 468 U. S.
609, 622 (1984). BSA has disclaimed any argument that Dale's past or future
actions, as distinct from his unapologetic declaration of sexual orientation,
would justify his exclusion from BSA. See Tr. of Oral Arg. 12-13.
The right of expressive association does not, of course, turn on the
popularity of the views advanced by a group that claims protection. Whether
the group appears to this Court to be in the vanguard or rearguard of social
thinking is irrelevant to the group's rights. I conclude that BSA has not made
out an expressive association claim, therefore, not because of what BSA
may espouse, but because of its failure to make sexual orientation the
subject of any unequivocal advocacy, using the channels it customarily

702
sive association into an easy trump of any antidiscrimination law.*
If, on the other hand, an expressive association claim has met the conditions
JUSTICE STEVENS describes as necessary, there may well be
circumstances in which the antidiscrimination law must yield, as he says. It is
certainly possible for an individual to become so identified with a position as
to epitomize it publicly. When that position is at odds with a group's
advocated position, applying an antidiscrimination statute to require the
group's acceptance of the individual in a position of group leadership could
so modify or muddle or frustrate the group's advocacy as to violate the
expressive associational right. While it is not our business here to rule on
any such hypothetical, it is at least clear that our estimate of the progressive
character of the group's position will be irrelevant to the First Amendment
analysis if such a case comes to us for decision.
* An expressive association claim is in this respect unlike a basic free speech
claim, as JUSTICE STEVENS points out; the latter claim, i. e., the right to

277
convey an individual's or group's position, if bona fide, may be taken at face
value in applying the First Amendment. This case is thus
unlike Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston,
Inc., 515 U. S. 557 (1995).

Oposa v. Factoran
GR 101083, July 30, 1993
DAVIDE, JR., J.:
In a broader sense, this petition bears upon the right of Filipinos to a
balanced and healthful ecology which the petitioners dramatically associate
with the twin concepts of "inter-generational responsibility" and "intergenerational justice." Specifically, it touches on the issue of whether the said
petitioners have a cause of action to "prevent the misappropriation or
impairment" of Philippine rainforests and "arrest the unabated hemorrhage of
the country's vital life support systems and continued rape of Mother Earth."

278
The controversy has its genesis in Civil Case No. 90-77 which was filed
before Branch 66 (Makati, Metro Manila) of the Regional Trial Court (RTC),
National Capital Judicial Region. The principal plaintiffs therein, now the
principal petitioners, are all minors duly represented and joined by their
respective parents. Impleaded as an additional plaintiff is the Philippine
Ecological Network, Inc. (PENI), a domestic, non-stock and non-profit
corporation organized for the purpose of, inter alia, engaging in concerted
action geared for the protection of our environment and natural resources.
The original defendant was the Honorable Fulgencio S. Factoran, Jr., then
Secretary of the Department of Environment and Natural Resources
(DENR). His substitution in this petition by the new Secretary, the Honorable
Angel C. Alcala, was subsequently ordered upon proper motion by the
petitioners. 1 The complaint 2 was instituted as a taxpayers' class suit 3 and
alleges that the plaintiffs "are all citizens of the Republic of the Philippines,
taxpayers, and entitled to the full benefit, use and enjoyment of the natural
resource treasure that is the country's virgin tropical forests." The same was
filed for themselves and others who are equally concerned about the
preservation of said resource but are "so numerous that it is impracticable to
bring them all before the Court." The minors further asseverate that they
"represent their generation as well as generations yet
unborn." 4 Consequently, it is prayed for that judgment be rendered:
. . . ordering defendant, his agents, representatives and other persons acting
in his behalf to
(1) Cancel all existing timber license agreements in the country;
(2) Cease and desist from receiving, accepting, processing, renewing or
approving new timber license agreements.
and granting the plaintiffs ". . . such other reliefs just and equitable under the
premises." 5
The complaint starts off with the general averments that the Philippine
archipelago of 7,100 islands has a land area of thirty million (30,000,000)
hectares and is endowed with rich, lush and verdant rainforests in which
varied, rare and unique species of flora and fauna may be found; these
rainforests contain a genetic, biological and chemical pool which is
irreplaceable; they are also the habitat of indigenous Philippine cultures

which have existed, endured and flourished since time immemorial; scientific
evidence reveals that in order to maintain a balanced and healthful ecology,
the country's land area should be utilized on the basis of a ratio of fifty-four
per cent (54%) for forest cover and forty-six per cent (46%) for agricultural,
residential, industrial, commercial and other uses; the distortion and
disturbance of this balance as a consequence of deforestation have resulted
in a host of environmental tragedies, such as (a) water shortages resulting
from drying up of the water table, otherwise known as the "aquifer," as well
as of rivers, brooks and streams, (b) salinization of the water table as a result
of the intrusion therein of salt water, incontrovertible examples of which may
be found in the island of Cebu and the Municipality of Bacoor, Cavite, (c)
massive erosion and the consequential loss of soil fertility and agricultural
productivity, with the volume of soil eroded estimated at one billion
(1,000,000,000) cubic meters per annum approximately the size of the
entire island of Catanduanes, (d) the endangering and extinction of the
country's unique, rare and varied flora and fauna, (e) the disturbance and
dislocation of cultural communities, including the disappearance of the
Filipino's indigenous cultures, (f) the siltation of rivers and seabeds and
consequential destruction of corals and other aquatic life leading to a critical
reduction in marine resource productivity, (g) recurrent spells of drought as is
presently experienced by the entire country, (h) increasing velocity of
typhoon winds which result from the absence of windbreakers, (i) the
floodings of lowlands and agricultural plains arising from the absence of the
absorbent mechanism of forests, (j) the siltation and shortening of the
lifespan of multi-billion peso dams constructed and operated for the purpose
of supplying water for domestic uses, irrigation and the generation of electric
power, and (k) the reduction of the earth's capacity to process carbon dioxide
gases which has led to perplexing and catastrophic climatic changes such as
the phenomenon of global warming, otherwise known as the "greenhouse
effect."
Plaintiffs further assert that the adverse and detrimental consequences of
continued and deforestation are so capable of unquestionable demonstration
that the same may be submitted as a matter of judicial notice. This
notwithstanding, they expressed their intention to present expert witnesses
as well as documentary, photographic and film evidence in the course of the
trial.
As their cause of action, they specifically allege that:

279
CAUSE OF ACTION
7. Plaintiffs replead by reference the foregoing allegations.
8. Twenty-five (25) years ago, the Philippines had some sixteen (16) million
hectares of rainforests constituting roughly 53% of the country's land mass.
9. Satellite images taken in 1987 reveal that there remained no more than
1.2 million hectares of said rainforests or four per cent (4.0%) of the
country's land area.
10. More recent surveys reveal that a mere 850,000 hectares of virgin oldgrowth rainforests are left, barely 2.8% of the entire land mass of the
Philippine archipelago and about 3.0 million hectares of immature and
uneconomical secondary growth forests.
11. Public records reveal that the defendant's, predecessors have granted
timber license agreements ('TLA's') to various corporations to cut the
aggregate area of 3.89 million hectares for commercial logging purposes.
A copy of the TLA holders and the corresponding areas covered is hereto
attached as Annex "A".
12. At the present rate of deforestation, i.e. about 200,000 hectares per
annum or 25 hectares per hour nighttime, Saturdays, Sundays and
holidays included the Philippines will be bereft of forest resources after
the end of this ensuing decade, if not earlier.
13. The adverse effects, disastrous consequences, serious injury and
irreparable damage of this continued trend of deforestation to the plaintiff
minor's generation and to generations yet unborn are evident and
incontrovertible. As a matter of fact, the environmental damages enumerated
in paragraph 6 hereof are already being felt, experienced and suffered by the
generation of plaintiff adults.

14. The continued allowance by defendant of TLA holders to cut and deforest
the remaining forest stands will work great damage and irreparable injury to
plaintiffs especially plaintiff minors and their successors who may
never see, use, benefit from and enjoy this rare and unique natural resource
treasure.
This act of defendant constitutes a misappropriation and/or impairment of the
natural resource property he holds in trust for the benefit of plaintiff minors
and succeeding generations.
15. Plaintiffs have a clear and constitutional right to a balanced and healthful
ecology and are entitled to protection by the State in its capacity as
the parens patriae.
16. Plaintiff have exhausted all administrative remedies with the defendant's
office. On March 2, 1990, plaintiffs served upon defendant a final demand to
cancel all logging permits in the country.
A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as
Annex "B".
17. Defendant, however, fails and refuses to cancel the existing TLA's to the
continuing serious damage and extreme prejudice of plaintiffs.
18. The continued failure and refusal by defendant to cancel the TLA's is an
act violative of the rights of plaintiffs, especially plaintiff minors who may be
left with a country that is desertified (sic), bare, barren and devoid of the
wonderful flora, fauna and indigenous cultures which the Philippines had
been abundantly blessed with.
19. Defendant's refusal to cancel the aforementioned TLA's is manifestly
contrary to the public policy enunciated in the Philippine Environmental
Policy which, in pertinent part, states that it is the policy of the State
(a) to create, develop, maintain and improve conditions under which man
and nature can thrive in productive and enjoyable harmony with each other;
(b) to fulfill the social, economic and other requirements of present and future
generations of Filipinos and;

280
(c) to ensure the attainment of an environmental quality that is conductive to
a life of dignity and well-being. (P.D. 1151, 6 June 1977)
20. Furthermore, defendant's continued refusal to cancel the aforementioned
TLA's is contradictory to the Constitutional policy of the State to
a. effect "a more equitable distribution of opportunities, income and wealth"
and "make full and efficient use of natural resources (sic)." (Section 1, Article
XII of the Constitution);
b. "protect the nation's marine wealth." (Section 2, ibid);
c. "conserve and promote the nation's cultural heritage and resources (sic)"
(Section 14, Article XIV,id.);
d. "protect and advance the right of the people to a balanced and healthful
ecology in accord with the rhythm and harmony of nature." (Section 16,
Article II, id.)
21. Finally, defendant's act is contrary to the highest law of humankind the
natural law and violative of plaintiffs' right to self-preservation and
perpetuatio.
22. There is no other plain, speedy and adequate remedy in law other than
the instant action to arrest the unabated hemorrhage of the country's vital life
support systems and continued rape of Mother Earth. 6
On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a
Motion to Dismiss the complaint based on two (2) grounds, namely: (1) the
plaintiffs have no cause of action against him and (2) the issue raised by the
plaintiffs is a political question which properly pertains to the legislative or
executive branches of Government. In their 12 July 1990 Opposition to the
Motion, the petitioners maintain that (1) the complaint shows a clear and
unmistakable cause of action, (2) the motion is dilatory and (3) the action
presents a justiciable question as it involves the defendant's abuse of
discretion.
On 18 July 1991, respondent Judge issued an order granting the
aforementioned motion to dismiss. 7 In the said order, not only was the

defendant's claim that the complaint states no cause of action against him
and that it raises a political question sustained, the respondent Judge
further ruled that the granting of the relief prayed for would result in the
impairment of contracts which is prohibited by the fundamental law of the
land.
Plaintiffs thus filed the instant special civil action for certiorari under Rule 65
of the Revised Rules of Court and ask this Court to rescind and set aside the
dismissal order on the ground that the respondent Judge gravely abused his
discretion in dismissing the action. Again, the parents of the plaintiffs-minors
not only represent their children, but have also joined the latter in this case. 8
On 14 May 1992, We resolved to give due course to the petition and
required the parties to submit their respective Memoranda after the Office of
the Solicitor General (OSG) filed a Comment in behalf of the respondents
and the petitioners filed a reply thereto.
Petitioners contend that the complaint clearly and unmistakably states a
cause of action as it contains sufficient allegations concerning their right to a
sound environment based on Articles 19, 20 and 21 of the Civil Code
(Human Relations), Section 4 of Executive Order (E.O.) No. 192 creating the
DENR, Section 3 of Presidential Decree (P.D.) No. 1151 (Philippine
Environmental Policy), Section 16, Article II of the 1987 Constitution
recognizing the right of the people to a balanced and healthful ecology, the
concept of generational genocide in Criminal Law and the concept of man's
inalienable right to self-preservation and self-perpetuation embodied in
natural law. Petitioners likewise rely on the respondent's correlative
obligation per Section 4 of E.O. No. 192, to safeguard the people's right to a
healthful environment.
It is further claimed that the issue of the respondent Secretary's alleged
grave abuse of discretion in granting Timber License Agreements (TLAs) to
cover more areas for logging than what is available involves a judicial
question.
Anent the invocation by the respondent Judge of the Constitution's nonimpairment clause, petitioners maintain that the same does not apply in this
case because TLAs are not contracts. They likewise submit that even if TLAs

281
may be considered protected by the said clause, it is well settled that they
may still be revoked by the State when the public interest so requires.
On the other hand, the respondents aver that the petitioners failed to allege
in their complaint a specific legal right violated by the respondent Secretary
for which any relief is provided by law. They see nothing in the complaint but
vague and nebulous allegations concerning an "environmental right" which
supposedly entitles the petitioners to the "protection by the state in its
capacity as parens patriae." Such allegations, according to them, do not
reveal a valid cause of action. They then reiterate the theory that the
question of whether logging should be permitted in the country is a political
question which should be properly addressed to the executive or legislative
branches of Government. They therefore assert that the petitioners'
resources is not to file an action to court, but to lobby before Congress for
the passage of a bill that would ban logging totally.
As to the matter of the cancellation of the TLAs, respondents submit that the
same cannot be done by the State without due process of law. Once issued,
a TLA remains effective for a certain period of time usually for twenty-five
(25) years. During its effectivity, the same can neither be revised nor
cancelled unless the holder has been found, after due notice and hearing, to
have violated the terms of the agreement or other forestry laws and
regulations. Petitioners' proposition to have all the TLAs indiscriminately
cancelled without the requisite hearing would be violative of the requirements
of due process.
Before going any further, We must first focus on some procedural matters.
Petitioners instituted Civil Case No. 90-777 as a class suit. The original
defendant and the present respondents did not take issue with this matter.
Nevertheless, We hereby rule that the said civil case is indeed a class suit.
The subject matter of the complaint is of common and general interest not
just to several, but to all citizens of the Philippines. Consequently, since the
parties are so numerous, it, becomes impracticable, if not totally impossible,
to bring all of them before the court. We likewise declare that the plaintiffs
therein are numerous and representative enough to ensure the full protection
of all concerned interests. Hence, all the requisites for the filing of a valid
class suit under Section 12, Rule 3 of the Revised Rules of Court are present
both in the said civil case and in the instant petition, the latter being but an
incident to the former.

This case, however, has a special and novel element. Petitioners minors
assert that they represent their generation as well as generations yet unborn.
We find no difficulty in ruling that they can, for themselves, for others of their
generation and for the succeeding generations, file a class suit. Their
personality to sue in behalf of the succeeding generations can only be based
on the concept of intergenerational responsibility insofar as the right to a
balanced and healthful ecology is concerned. Such a right, as hereinafter
expounded, considers
the "rhythm and harmony of nature." Nature means the created world in its
entirety. 9 Such rhythm and harmony indispensably include, inter alia, the
judicious disposition, utilization, management, renewal and conservation of
the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas
and other natural resources to the end that their exploration, development
and utilization be equitably accessible to the present as well as future
generations. 10 Needless to say, every generation has a responsibility to the
next to preserve that rhythm and harmony for the full enjoyment of a
balanced and healthful ecology. Put a little differently, the minors' assertion of
their right to a sound environment constitutes, at the same time, the
performance of their obligation to ensure the protection of that right for the
generations to come.
The locus standi of the petitioners having thus been addressed, We shall
now proceed to the merits of the petition.
After a careful perusal of the complaint in question and a meticulous
consideration and evaluation of the issues raised and arguments adduced by
the parties, We do not hesitate to find for the petitioners and rule against the
respondent Judge's challenged order for having been issued with grave
abuse of discretion amounting to lack of jurisdiction. The pertinent portions of
the said order reads as follows:
xxx xxx xxx
After a careful and circumspect evaluation of the Complaint, the Court
cannot help but agree with the defendant. For although we believe that
plaintiffs have but the noblest of all intentions, it (sic) fell short of alleging,
with sufficient definiteness, a specific legal right they are seeking to enforce
and protect, or a specific legal wrong they are seeking to prevent and
redress (Sec. 1, Rule 2, RRC). Furthermore, the Court notes that the

282
Complaint is replete with vague assumptions and vague conclusions based
on unverified data. In fine, plaintiffs fail to state a cause of action in its
Complaint against the herein defendant.
Furthermore, the Court firmly believes that the matter before it, being
impressed with political color and involving a matter of public policy, may not
be taken cognizance of by this Court without doing violence to the sacred
principle of "Separation of Powers" of the three (3) co-equal branches of the
Government.
The Court is likewise of the impression that it cannot, no matter how we
stretch our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to
cancel all existing timber license agreements in the country and to cease and
desist from receiving, accepting, processing, renewing or approving new
timber license agreements. For to do otherwise would amount to "impairment
of contracts" abhored (sic) by the fundamental law. 11
We do not agree with the trial court's conclusions that the plaintiffs failed to
allege with sufficient definiteness a specific legal right involved or a specific
legal wrong committed, and that the complaint is replete with vague
assumptions and conclusions based on unverified data. A reading of the
complaint itself belies these conclusions.
The complaint focuses on one specific fundamental legal right the right to
a balanced and healthful ecology which, for the first time in our nation's
constitutional history, is solemnly incorporated in the fundamental law.
Section 16, Article II of the 1987 Constitution explicitly provides:
Sec. 16. The State shall protect and advance the right of the people to a
balanced and healthful ecology in accord with the rhythm and harmony of
nature.
This right unites with the right to health which is provided for in the preceding
section of the same article:
Sec. 15. The State shall protect and promote the right to health of the people
and instill health consciousness among them.

While the right to a balanced and healthful ecology is to be found under the
Declaration of Principles and State Policies and not under the Bill of Rights, it
does not follow that it is less important than any of the civil and political rights
enumerated in the latter. Such a right belongs to a different category of rights
altogether for it concerns nothing less than self-preservation and selfperpetuation aptly and fittingly stressed by the petitioners the
advancement of which may even be said to predate all governments and
constitutions. As a matter of fact, these basic rights need not even be written
in the Constitution for they are assumed to exist from the inception of
humankind. If they are now explicitly mentioned in the fundamental charter, it
is because of the well-founded fear of its framers that unless the rights to a
balanced and healthful ecology and to health are mandated as state policies
by the Constitution itself, thereby highlighting their continuing importance and
imposing upon the state a solemn obligation to preserve the first and protect
and advance the second, the day would not be too far when all else would
be lost not only for the present generation, but also for those to come
generations which stand to inherit nothing but parched earth incapable of
sustaining life.
The right to a balanced and healthful ecology carries with it the correlative
duty to refrain from impairing the environment. During the debates on this
right in one of the plenary sessions of the 1986 Constitutional Commission,
the following exchange transpired between Commissioner Wilfrido Villacorta
and Commissioner Adolfo Azcuna who sponsored the section in question:
MR. VILLACORTA:
Does this section mandate the State to provide sanctions against all forms of
pollution air, water and noise pollution?
MR. AZCUNA:
Yes, Madam President. The right to healthful (sic) environment necessarily
carries with it the correlative duty of not impairing the same and, therefore,
sanctions may be provided for impairment of environmental balance. 12
The said right implies, among many other things, the judicious management
and conservation of the country's forests.

283
Without such forests, the ecological or environmental balance would be
irreversiby disrupted.
Conformably with the enunciated right to a balanced and healthful ecology
and the right to health, as well as the other related provisions of the
Constitution concerning the conservation, development and utilization of the
country's natural resources, 13 then President Corazon C. Aquino
promulgated on 10 June 1987 E.O. No. 192, 14 Section 4 of which expressly
mandates that the Department of Environment and Natural Resources "shall
be the primary government agency responsible for the conservation,
management, development and proper use of the country's environment and
natural resources, specifically forest and grazing lands, mineral, resources,
including those in reservation and watershed areas, and lands of the public
domain, as well as the licensing and regulation of all natural resources as
may be provided for by law in order to ensure equitable sharing of the
benefits derived therefrom for the welfare of the present and future
generations of Filipinos." Section 3 thereof makes the following statement of
policy:
Sec. 3. Declaration of Policy. It is hereby declared the policy of the State
to ensure the sustainable use, development, management, renewal, and
conservation of the country's forest, mineral, land, off-shore areas and other
natural resources, including the protection and enhancement of the quality of
the environment, and equitable access of the different segments of the
population to the development and the use of the country's natural
resources, not only for the present generation but for future generations as
well. It is also the policy of the state to recognize and apply a true value
system including social and environmental cost implications relative to their
utilization, development and conservation of our natural resources.
This policy declaration is substantially re-stated it Title XIV, Book IV of the
Administrative Code of 1987, 15specifically in Section 1 thereof which reads:
Sec. 1. Declaration of Policy. (1) The State shall ensure, for the benefit of
the Filipino people, the full exploration and development as well as the
judicious disposition, utilization, management, renewal and conservation of
the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas
and other natural resources, consistent with the necessity of maintaining a
sound ecological balance and protecting and enhancing the quality of the

environment and the objective of making the exploration, development and

utilization of such natural resources equitably accessible to the different
segments of the present as well as future generations.
(2) The State shall likewise recognize and apply a true value system that
takes into account social and environmental cost implications relative to the
utilization, development and conservation of our natural resources.
The above provision stresses "the necessity of maintaining a sound
ecological balance and protecting and enhancing the quality of the
environment." Section 2 of the same Title, on the other hand, specifically
speaks of the mandate of the DENR; however, it makes particular reference
to the fact of the agency's being subject to law and higher authority. Said
section provides:
Sec. 2. Mandate. (1) The Department of Environment and Natural
Resources shall be primarily responsible for the implementation of the
foregoing policy.
(2) It shall, subject to law and higher authority, be in charge of carrying out
the State's constitutional mandate to control and supervise the exploration,
development, utilization, and conservation of the country's natural resources.
Both E.O. NO. 192 and the Administrative Code of 1987 have set the
objectives which will serve as the bases for policy formulation, and have
defined the powers and functions of the DENR.
It may, however, be recalled that even before the ratification of the 1987
Constitution, specific statutes already paid special attention to the
"environmental right" of the present and future generations. On 6 June 1977,
P.D. No. 1151 (Philippine Environmental Policy) and P.D. No. 1152
(Philippine Environment Code) were issued. The former "declared a
continuing policy of the State (a) to create, develop, maintain and improve
conditions under which man and nature can thrive in productive and
enjoyable harmony with each other, (b) to fulfill the social, economic and
other requirements of present and future generations of Filipinos, and (c) to
insure the attainment of an environmental quality that is conducive to a life of
dignity and well-being." 16 As its goal, it speaks of the "responsibilities of
each generation as trustee and guardian of the environment for succeeding

284
generations." 17 The latter statute, on the other hand, gave flesh to the said
policy.
Thus, the right of the petitioners (and all those they represent) to a balanced
and healthful ecology is as clear as the DENR's duty under its mandate
and by virtue of its powers and functions under E.O. No. 192 and the
Administrative Code of 1987 to protect and advance the said right.
A denial or violation of that right by the other who has the corelative duty or
obligation to respect or protect the same gives rise to a cause of action.
Petitioners maintain that the granting of the TLAs, which they claim was
done with grave abuse of discretion, violated their right to a balanced and
healthful ecology; hence, the full protection thereof requires that no further
TLAs should be renewed or granted.
A cause of action is defined as:
. . . an act or omission of one party in violation of the legal right or rights of
the other; and its essential elements are legal right of the plaintiff, correlative
obligation of the defendant, and act or omission of the defendant in violation
of said legal right. 18
It is settled in this jurisdiction that in a motion to dismiss based on the ground
that the complaint fails to state a cause of action, 19 the question submitted to
the court for resolution involves the sufficiency of the facts alleged in the
complaint itself. No other matter should be considered; furthermore, the truth
of falsity of the said allegations is beside the point for the truth thereof is
deemed hypothetically admitted. The only issue to be resolved in such a
case is: admitting such alleged facts to be true, may the court render a valid
judgment in accordance with the prayer in the complaint? 20 InMilitante vs.
Edrosolano, 21 this Court laid down the rule that the judiciary should "exercise
the utmost care and circumspection in passing upon a motion to dismiss on
the ground of the absence thereof [cause of action] lest, by its failure to
manifest a correct appreciation of the facts alleged and deemed
hypothetically admitted, what the law grants or recognizes is effectively
nullified. If that happens, there is a blot on the legal order. The law itself
stands in disrepute."

After careful examination of the petitioners' complaint, We find the

statements under the introductory affirmative allegations, as well as the
specific averments under the sub-heading CAUSE OF ACTION, to be
adequate enough to show, prima facie, the claimed violation of their rights.
On the basis thereof, they may thus be granted, wholly or partly, the reliefs
prayed for. It bears stressing, however, that insofar as the cancellation of the
TLAs is concerned, there is the need to implead, as party defendants, the
grantees thereof for they are indispensable parties.
The foregoing considered, Civil Case No. 90-777 be said to raise a political
question. Policy formulation or determination by the executive or legislative
branches of Government is not squarely put in issue. What is principally
involved is the enforcement of a right vis-a-vis policies already formulated
and expressed in legislation. It must, nonetheless, be emphasized that the
political question doctrine is no longer, the insurmountable obstacle to the
exercise of judicial power or the impenetrable shield that protects executive
and legislative actions from judicial inquiry or review. The second paragraph
of section 1, Article VIII of the Constitution states that:
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.
Commenting on this provision in his book, Philippine Political Law, 22 Mr.
Justice Isagani A. Cruz, a distinguished member of this Court, says:
The first part of the authority represents the traditional concept of judicial
power, involving the settlement of conflicting rights as conferred as law. The
second part of the authority represents a broadening of judicial power to
enable the courts of justice to review what was before forbidden territory, to
wit, the discretion of the political departments of the government.
As worded, the new provision vests in the judiciary, and particularly the
Supreme Court, the power to rule upon even the wisdom of the decisions of
the executive and the legislature and to declare their acts invalid for lack or
excess of jurisdiction because tainted with grave abuse of discretion. The
catch, of course, is the meaning of "grave abuse of discretion," which is a

285
very elastic phrase that can expand or contract according to the disposition
of the judiciary.
In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:

Needless to say, all licenses may thus be revoked or rescinded by executive

action. It is not a contract, property or a property right protested by the due
process clause of the Constitution. In Tan vs. Director of Forestry, 25 this
Court held:

In the case now before us, the jurisdictional objection becomes even less
tenable and decisive. The reason is that, even if we were to assume that the
issue presented before us was political in nature, we would still not be
precluded from revolving it under the expanded jurisdiction conferred upon
us that now covers, in proper cases, even the political question. Article VII,
Section 1, of the Constitution clearly provides: . . .

. . . A timber license is an instrument by which the State regulates the

utilization and disposition of forest resources to the end that public welfare is
promoted. A timber license is not a contract within the purview of the due
process clause; it is only a license or privilege, which can be validly
withdrawn whenever dictated by public interest or public welfare as in this
case.

The last ground invoked by the trial court in dismissing the complaint is the
non-impairment of contracts clause found in the Constitution. The court a
quo declared that:

A license is merely a permit or privilege to do what otherwise would be

unlawful, and is not a contract between the authority, federal, state, or
municipal, granting it and the person to whom it is granted; neither is it
property or a property right, nor does it create a vested right; nor is it taxation
(37 C.J. 168). Thus, this Court held that the granting of license does not
create irrevocable rights, neither is it property or property rights (People vs.
Ong Tin, 54 O.G. 7576).

The Court is likewise of the impression that it cannot, no matter how we

stretch our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to
cancel all existing timber license agreements in the country and to cease and
desist from receiving, accepting, processing, renewing or approving new
timber license agreements. For to do otherwise would amount to "impairment
of contracts" abhored (sic) by the fundamental law. 24

We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs.
Deputy Executive Secretary: 26

We are not persuaded at all; on the contrary, We are amazed, if not shocked,
by such a sweeping pronouncement. In the first place, the respondent
Secretary did not, for obvious reasons, even invoke in his motion to dismiss
the non-impairment clause. If he had done so, he would have acted with
utmost infidelity to the Government by providing undue and unwarranted
benefits and advantages to the timber license holders because he would
have forever bound the Government to strictly respect the said licenses
according to their terms and conditions regardless of changes in policy and
the demands of public interest and welfare. He was aware that as correctly
pointed out by the petitioners, into every timber license must be read Section
20 of the Forestry Reform Code (P.D. No. 705) which provides:

. . . Timber licenses, permits and license agreements are the principal

instruments by which the State regulates the utilization and disposition of
forest resources to the end that public welfare is promoted. And it can hardly
be gainsaid that they merely evidence a privilege granted by the State to
qualified entities, and do not vest in the latter a permanent or irrevocable
right to the particular concession area and the forest products therein. They
may be validly amended, modified, replaced or rescinded by the Chief
Executive when national interests so require. Thus, they are not deemed
contracts within the purview of the due process of law clause [See Sections
3(ee) and 20 of Pres. Decree No. 705, as amended. Also, Tan v. Director of
Forestry, G.R. No. L-24548, October 27, 1983, 125 SCRA 302].

. . . Provided, That when the national interest so requires, the President may
amend, modify, replace or rescind any contract, concession, permit, licenses
or any other form of privilege granted herein . . .

Since timber licenses are not contracts, the non-impairment clause, which
reads:

286
Sec. 10. No law impairing, the obligation of contracts shall be passed. 27
cannot be invoked.
In the second place, even if it is to be assumed that the same are contracts,
the instant case does not involve a law or even an executive issuance
declaring the cancellation or modification of existing timber licenses. Hence,
the non-impairment clause cannot as yet be invoked. Nevertheless, granting
further that a law has actually been passed mandating cancellations or
modifications, the same cannot still be stigmatized as a violation of the nonimpairment clause. This is because by its very nature and purpose, such as
law could have only been passed in the exercise of the police power of the
state for the purpose of advancing the right of the people to a balanced and
healthful ecology, promoting their health and enhancing the general welfare.
In Abe vs. Foster Wheeler
Corp. 28 this Court stated:
The freedom of contract, under our system of government, is not meant to
be absolute. The same is understood to be subject to reasonable legislative
regulation aimed at the promotion of public health, moral, safety and welfare.
In other words, the constitutional guaranty of non-impairment of obligations
of contract is limited by the exercise of the police power of the State, in the
interest of public health, safety, moral and general welfare.

Finally, it is difficult to imagine, as the trial court did, how the non-impairment
clause could apply with respect to the prayer to enjoin the respondent
Secretary from receiving, accepting, processing, renewing or approving new
timber licenses for, save in cases of renewal, no contract would have as of
yet existed in the other instances. Moreover, with respect to renewal, the
holder is not entitled to it as a matter of right.
WHEREFORE, being impressed with merit, the instant Petition is hereby
GRANTED, and the challenged Order of respondent Judge of 18 July 1991
dismissing Civil Case No. 90-777 is hereby set aside. The petitioners may
therefore amend their complaint to implead as defendants the holders or
grantees of the questioned timber license agreements.
No pronouncement as to costs.
SO ORDERED.
Cruz, Padilla, Bidin, Grio-Aquino, Regalado, Romero, Nocon, Bellosillo,
Melo and Quiason, JJ., concur.Narvasa, C.J., Puno and Vitug, JJ., took no
part.
SECOND DIVISION

The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted
in Philippine American Life Insurance Co. vs. Auditor General, 30 to wit:
[G.R. No. 126102. December 4, 2000]
Under our form of government the use of property and the making of
contracts are normally matters of private and not of public concern. The
general rule is that both shall be free of governmental interference. But
neither property rights nor contract rights are absolute; for government
cannot exist if the citizen may at will use his property to the detriment of his
fellows, or exercise his freedom of contract to work them harm. Equally
fundamental with the private right is that of the public to regulate it in the
common interest.
In short, the non-impairment clause must yield to the police power of the
state. 31

ORTIGAS & CO. LTD., petitioner, vs. THE COURT OF APPEALS and
ISMAEL G. MATHAY III, respondents.
DECISION
QUISUMBING, J.:
This petition seeks to reverse the decision of the Court of Appeals,
dated March 25, 1996, in CA-G.R. SP No. 39193, which nullified the writ of
preliminary injunction issued by the Regional Trial Court of Pasig City,

287
Branch 261, in Civil Case No. 64931. It also assails the resolution of the
appellate court, dated August 13, 1996, denying petitioners motion for
reconsideration.
The facts of this case, as culled from the records, are as follows:
On August 25, 1976, petitioner Ortigas & Company sold to Emilia
Hermoso, a parcel of land known as Lot 1, Block 21, Psd-66759, with an
area of 1,508 square meters, located in Greenhills Subdivision IV, San Juan,
Metro Manila, and covered by Transfer Certificate of Title No. 0737. The
contract of sale provided that the lot:
1. (1) be used exclusivelyfor residential purposes only, and not
more than one single-family residential building will be
constructed thereon,
xxx
6. The BUYER shall not erectany sign or billboard on the rooffor
advertising purposes
xxx
11. No single-family residential building shall be erecteduntil the
building plans, specificationhave been approved by the SELLER
xxx
14....restrictions shall run with the land and shall be construed as
real covenants until December 31, 2025 when they shall cease
and terminate[1]
These and the other conditions were duly annotated on the certificate of
title issued to Emilia.
In 1981, the Metropolitan Manila Commission (now Metropolitan Manila
Development Authority) enacted MMC Ordinance No. 81-01, also known as
the Comprehensive Zoning Area for the National Capital Region. The
ordinance reclassified as a commercial area a portion of Ortigas Avenue
from Madison to Roosevelt Streets of Greenhills Subdivision where the lot is
located.
On June 8, 1984, private respondent Ismael Mathay III leased the lot
from Emilia Hermoso and J.P. Hermoso Realty Corp.. The lease contract did
not specify the purposes of the lease. Thereupon, private respondent

constructed a single story commercial building for Greenhills Autohaus, Inc.,

a car sales company.
On January 18, 1995, petitioner filed a complaint against Emilia
Hermoso with the Regional Trial Court of Pasig, Branch 261. Docketed as
Civil Case No. 64931, the complaint sought the demolition of the said
commercial structure for having violated the terms and conditions of the
Deed of Sale. Complainant prayed for the issuance of a temporary
restraining order and a writ of preliminary injunction to prohibit petitioner from
constructing the commercial building and/or engaging in commercial activity
on the lot. The complaint was later amended to implead Ismael G. Mathay III
and J.P. Hermoso Realty Corp., which has a ten percent (10%) interest in the
lot.
In his answer, Mathay III denied any knowledge of the restrictions on the
use of the lot and filed a cross-claim against the Hermosos.
On June 16, 1995, the trial court issued the writ of preliminary
injunction. On June 29, 1995, Mathay III moved to set aside the injunctive
order, but the trial court denied the motion.
Mathay III then filed with the Court of Appeals a special civil action for
certiorari, docketed as CA-G.R. SP No. 39193, ascribing to the trial court
grave abuse of discretion in issuing the writ of preliminary injunction. He
claimed that MMC Ordinance No. 81-01 classified the area where the lot was
located as commercial area and said ordinance must be read into the August
25, 1976 Deed of Sale as a concrete exercise of police power.
Ortigas and Company averred that inasmuch as the restrictions on the
use of the lot were duly annotated on the title it issued to Emilia Hermoso,
said restrictions must prevail over the ordinance, specially since these
restrictions were agreed upon before the passage of MMC Ordinance No.
81-01.
On March 25, 1996, the appellate court disposed of the case as follows:
WHEREFORE, in light of the foregoing, the petition is hereby
GRANTED. The assailed orders are hereby nullified and set aside.
SO ORDERED.[2]

288
In finding for Mathay III, the Court of Appeals held that the MMC
Ordinance No. 81-01 effectively nullified the restrictions allowing only
residential use of the property in question.

exclusive residential use thereof. Hence, petitioner concludes that the Court
of Appeals erred in holding that the condition imposing exclusive residential
use was effectively nullified by the zoning ordinance.

Ortigas seasonably moved for reconsideration, but the appellate court

denied it on August 13, 1996.

In its turn, private respondent argues that the appellate court correctly
ruled that the trial court had acted with grave abuse of discretion in refusing
to subject the contract to the MMC Ordinance No. 81-01. He avers that the
appellate court properly held the police power superior to the non-impairment
of contract clause in the Constitution. He concludes that the appellate court
did not err in dissolving the writ of preliminary injunction issued by the trial
court in excess of its jurisdiction.

Hence, the instant petition.

In its Memorandum, petitioner now submits that the principal issue in
this case is whether respondent Court of Appeals correctly set aside the
Order dated June 16, 1995 of the trial court which issued the writ of
preliminary injunction on the sole ground that MMC Ordinance No. 81-01
nullified the building restriction imposing exclusive residential use on the
property in question.[3] It also asserts that Mathay III lacks legal capacity to
question the validity of conditions of the deed of sale; and he is barred by
estoppel or waiver to raise the same question like his principals, the owners.
[4]
Lastly, it avers that the appellate court unaccountably failed to address
several questions of fact.
Principally, we must resolve the issue of whether the Court of Appeals
erred in holding that the trial court committed grave abuse of discretion when
it refused to apply MMC Ordinance No.81-01 to Civil Case No. 64931.
But first, we must address petitioners allegation that the Court of
Appeals unaccountably failed to address questions of fact. For basic is the
rule that factual issues may not be raised before this Court in a petition for
review and this Court is not duty-bound to consider said questions. [5] CAG.R. SP No. 39193 was a special civil action for certiorari, and the appellate
court only had to determine if the trial court committed grave abuse of
discretion amounting to want or excess of jurisdiction in issuing the writ of
preliminary injunction. Thus, unless vital to our determination of the issue at
hand, we shall refrain from further consideration of factual questions.
Petitioner contends that the appellate court erred in limiting its decision
to the cited zoning ordinance. It avers that a contractual right is not
automatically discarded once a claim is made that it conflicts with police
power. Petitioner submits that the restrictive clauses in the questioned
contract is not in conflict with the zoning ordinance. For one, according to
petitioner, the MMC Ordinance No. 81-01 did not prohibit the construction of
residential buildings. Petitioner argues that even with the zoning ordinance,
the seller and buyer of the re-classified lot can voluntarily agree to an

We note that in issuing the disputed writ of preliminary injunction, the

trial court observed that the contract of sale was entered into in August 1976,
while the zoning ordinance was enacted only in March 1981. The trial court
reasoned that since private respondent had failed to show that MMC
Ordinance No. 81-01 had retroactive effect, said ordinance should be given
prospective application only,[6] citing Co vs. Intermediate Appellate Court, 162
SCRA 390 (1988).
In general, we agree that laws are to be construed as having only
prospective operation. Lex prospicit, non respicit. Equally settled, only laws
existing at the time of the execution of a contract are applicable thereto and
not later statutes, unless the latter are specifically intended to have
retroactive effect.[7] A later law which enlarges, abridges, or in any manner
changes the intent of the parties to the contract necessarily impairs the
contract itself[8] and cannot be given retroactive effect without violating the
constitutional prohibition against impairment of contracts.[9]
But, the foregoing principles do admit of certain exceptions. One
involves police power. A law enacted in the exercise of police power to
regulate or govern certain activities or transactions could be given retroactive
effect and may reasonably impair vested rights or contracts. Police power
legislation is applicable not only to future contracts, but equally to those
already in existence.[10] Nonimpairment of contracts or vested rights clauses
will have to yield to the superior and legitimate exercise by the State of police
power to promote the health, morals, peace, education, good order, safety,
and general welfare of the people. [11] Moreover, statutes in exercise of valid
police power must be read into every contract. [12] Noteworthy, inSangalang
vs. Intermediate Appellate Court,[13] we already upheld MMC Ordinance No.
81-01 as a legitimate police power measure.

289
The trial courts reliance on the Co vs. IAC,[14] is misplaced. In Co, the
disputed area was agricultural and Ordinance No. 81-01 did not specifically
provide that it shall have retroactive effect so as to discontinue all rights
previously acquired over lands located within the zone which are neither
residential nor light industrial in nature,[15] and stated with respect to
agricultural areas covered that the zoning ordinance should be given
prospective operation only.[16] The area in this case involves not agricultural
but urban residential land. Ordinance No. 81-01 retroactively affected the
operation of the zoning ordinance in Greenhills by reclassifying certain
locations therein as commercial.
Following our ruling in Ortigas & Co., Ltd. vs. Feati Bank & Trust Co., 94
SCRA 533 (1979), the contractual stipulations annotated on the Torrens Title,
on which Ortigas relies, must yield to the ordinance. When that stretch of
Ortigas Avenue from Roosevelt Street to Madison Street was reclassified as
a commercial zone by the Metropolitan Manila Commission in March 1981,
the restrictions in the contract of sale between Ortigas and Hermoso, limiting
all construction on the disputed lot to single-family residential buildings, were
deemed extinguished by the retroactive operation of the zoning ordinance
and could no longer be enforced. While our legal system upholds the sanctity
of contract so that a contract is deemed law between the contracting parties,
[17]
nonetheless, stipulations in a contract cannot contravene law, morals,
good customs, public order, or public policy.[18] Otherwise such stipulations
would be deemed null and void. Respondent court correctly found that the
trial court committed in this case a grave abuse of discretion amounting to
want of or excess of jurisdiction in refusing to treat Ordinance No. 81-01 as
applicable to Civil Case No. 64931. In resolving matters in litigation, judges
are not only duty-bound to ascertain the facts and the applicable laws,
[19]
they are also bound by their oath of office to apply the applicable law.[20]

As a secondary issue, petitioner contends that respondent Mathay III, as

a mere lessee of the lot in question, is a total stranger to the deed of sale
and is thus barred from questioning the conditions of said deed. Petitioner
points out that the owners of the lot voluntarily agreed to the restrictions on
the use of the lot and do not question the validity of these
restrictions.Petitioner argues that Mathay III as a lessee is merely an agent
of the owners, and could not override and rise above the status of his
principals. Petitioner submits that he could not have a higher interest than
those of the owners, the Hermosos, and thus had no locus standi to file CAG.R. SP No. 39193 to dissolve the injunctive writ issued by the RTC of Pasig
City.
For his part, private respondent argues that as the lessee who built the
commercial structure, it is he and he alone who stands to be either benefited
or injured by the results of the judgment in Civil Case No. 64931. He avers
he is the party with real interest in the subject matter of the action, as it
would be his business, not the Hermosos, which would suffer had not the
respondent court dissolved the writ of preliminary injunction.
A real party in interest is defined as the party who stands to be benefited
or injured by the judgment or the party entitled to the avails of the suit.
Interest within the meaning of the rule means material interest, an interest in
issue and to be affected by the decree, as distinguished from mere interest
in the question involved, or a mere incidental interest. [21] By real interest is
meant a present substantial interest, as distinguished from a mere
expectancy or a future, contingent, subordinate, or consequential interest.[22]
Tested by the foregoing definition, private respondent in this case is
clearly a real party in interest. It is not disputed that he is in possession of the
lot pursuant to a valid lease. He is a possessor in the concept of a holder of
the thing under Article 525 of the Civil Code. [23] He was impleaded as a
defendant in the amended complaint in Civil Case No. 64931. Further, what
petitioner seeks to enjoin is the building by respondent of a commercial
structure on the lot. Clearly, it is private respondents acts which are in issue,
and his interest in said issue cannot be a mere incidental interest. In its
amended complaint, petitioner prayed for, among others, judgment ordering
the demolition of all improvements illegally built on the lot in question.
[24]
These show that it is petitioner Mathay III, doing business as Greenhills
Autohaus, Inc., and not only the Hermosos, who will be adversely affected by
the courts decree.

290
Petitioner also cites the rule that a stranger to a contract has no rights or
obligations under it,[25] and thus has no standing to challenge its validity.
[26]
But in seeking to enforce the stipulations in the deed of sale, petitioner
impleaded private respondent as a defendant. Thus petitioner must
recognize that where a plaintiff has impleaded a party as a defendant, he
cannot subsequently question the latters standing in court.[27]
WHEREFORE, the instant petition is DENIED. The challenged decision
of the Court of Appeals dated March 25, 1996, as well as the assailed
resolution of August 13, 1996, in CA-G.R. SP No. 39193 is
AFFIRMED. Costs against petitioner.
SO ORDERED.
Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-21707

March 18, 1967

291
FELIPE ACAR, ET AL., petitioners,
vs.
HON. INOCENCIO ROSAL, in his capacity as Executive Judge, Court of
First Instance of Negros Oriental, 12th Judicial District, respondent.
F. S. Villarin for petitioners.
Jose B. Navarro for respondent.
BENGZON J.P., J.:
All over the world, Constitutions share one purpose: to protect and enhance
the people's interest, as a nation collectively and as persons individually. The
Philippine Constitution is no exception. Interpretation of its provisions,
therefore, should be done with a view to realizing this fundamental objective.
Among the provisions in our Constitution is one both, timely and farreaching, as it affects the people at large and relates to social justice
problems of the day. It is Subsec. 21, Sec. I of Art. III: "Free access to the
courts shall not be denied to any person by reason of poverty." It is the one
involved in this case.
A suit was filed in the Court of First Instance of Negros Oriental on February
21, 1963 by ten persons for their own behalf and that of 9,000 other farm
laborers working off and on in sugar cane plantations at the Bais milling
district, Negros Oriental, against Compaia General de Tabacos de Filipinas,
Central Azucarera de Bais, Compaia Celulosa de Filipinas, Ramon Barata,
Aurelio Montinola, Sr., and Miguel Franco. Plaintiffs sought to recover their
alleged participations or shares amounting to the aggregate sum of
P14,031,836.74, in the sugar, molasses, bagasse and other derivatives
based on the provisions of Republic Act 809 (The Sugar Act of 1952),
particularly Sections 1 and 9 thereof:
SECTION 1. In the absence of written milling agreements between
the majority of planters and the millers of sugarcane in any milling
district in the Philippines, the unrefined sugar produced in that district
from the milling by any sugar central of the sugar-cane of any sugarcane planter or plantation owner, as well as all by-products and
derivatives thereof, shall be divided between them as follows:

Sixty per centum for the planter, and forty per centum for the central
in any milling district the maximum actual production of which is not
more than four hundred thousand piculs: Provided, That the
provisions of this section shall not apply to sugar centrals with an
actual production of less than one hundred fifty thousand piculs;
Sixty-two and one-half per centum for the planter, and thirty-seven
and one-half per centum for the central in any milling district the
maximum actual production of which exceeds four hundred thousand
piculs but does not exceed six hundred thousand piculs;
Sixty-five per centum for the planter, and thirty-five per centum for the
central in any milling district the maximum actual production of which
exceeds six hundred thousand piculs but does not exceed nine
hundred thousand piculs;
Sixty-seven and one-half per centum for the planter, and thirty-two
and one-half per centum for the central in any milling district the
maximum actual production of which exceeds nine hundred thousand
piculs but does not exceed one million two hundred thousand piculs;
Seventy per centum for the planter, and thirty per centum for the
central in any milling district the maximum actual production of which
exceeds one million two hundred thousand piculs.1wph1.t
By actual production is meant the total production of the mill for the
crop year immediately preceding.
xxx

xxx

xxx

SEC. 9. In addition to the benefits granted by the Minimum Wage

Law, the proceeds of any increase in the participation granted the
planters under this Act and above their present share shall be divided
between the planter and his laborers in the plantation in the following
proportion:
Sixty per centum of the increased participation for the laborers and
forty per centum for the planters. The distribution of the share

292
corresponding to the laborers shall be made under the supervision of
the Department of Labor.
The benefits granted to laborers in sugar plantations under this Act
and in the Minimum Wage Law shall not in any way be diminished by
such labor contracts known as "by the piece," "by the volume," "by
the area," or by any other system of "pakyaw," the Secretary of Labor
being hereby authorized to issue the necessary orders for the
enforcement of this provision."
Furthermore, plaintiffs asked thereunder as well as by separate motion, that
the aforementioned court authorize them to sue as pauper litigants, under
Sec. 22, Rule 3 of the Rules of Court:
SEC. 22. Pauper litigant. Any court may authorize a litigant to
prosecute his action or defense as a pauper upon a proper showing
that he has no means to that effect by affidavits, certificate of the
corresponding provincial, city or municipal treasurer, or otherwise.
Such authority once given shall include an exemption from payment
of legal fees and from filing appeal bond, printed record and printed
brief. The legal fees shall be a lien to any judgment rendered in the
case favorably to the pauper, unless the court otherwise provides.

reason of poverty, plaintiffs in said case filed herein, on August 1, 1963, the
present special civil action orcertiorari and mandamus. Petition to litigate as
pauper in the instant case before Us was also filed. And on August 16, 1963,
We allowed petitioners herein to litigate in this Court as paupers and
required respondent to answer. Respondent's answer was filed on
November 2, 1963. After hearing on February 10, 1964 this case was
submitted for decision.
The sole issue herein is whether petitioners were deprived, by the orders in
question, of free access to the courts by reason of poverty. In denying
petitioners' motion to litigate as paupers, respondent Judge adopted the
definition at "pauper" in Black's Law Dictionary (at p. 1284) as "a person so
poor that he must be supported at public expense". And, as afore-stated, he
ruled that petitioners are not that poor.

Acting on the petition to litigate in forma pauperis, the Court of First Instance
issued an order on May 27, 1963, denying the same upon the ground that
the plaintiffs have regular employment and sources of income and, thus, can
not be classified as poor or paupers.

Such interpretation, to our mind, does not fit with the purpose of the rules on
suits in forma pauperis and the provision of the Constitution, in the Bill of
Rights, that: "Free access to the courts shall not be denied to any person by
reason of poverty." As applied to statutes or provisions on the right to sue in
forma pauperis, the term has a broader meaning. It has thus been
recognized that: "An applicant for leave to sue in forma pauperis need not be
a pauper; the fact that he is able-bodied and may earn the necessary money
is no answer to his statement that he has not sufficient means to prosecute
the action or to secure the costs" (14 Am. Jur. 31). It suffices that plaintiff
is indigent (Ibid.), the not a public charge. And the difference between
"paupers" and "indigent" persons is that the latter are "persons who have no
property or source of income sufficient for their support aside from their own
labor, though self-supporting when able to work and in employment" (Black's
Law Dictionary, p. 913, "Indigent", citing People vs. Schoharie County, 121
NY 345, 24 NE 830). It is therefore in this sense of being indigent that
"pauper" is taken when referring to suits in forma pauperis. Black's Law
Dictionary in fact defines pauper, thus: "A person so poor that he must be
supported at public expense; also a suitor who, on account of poverty, is
allowed to sue or defend without being chargeable with costs" (p. 1284,
emphasis supplied).

Plaintiffs sought reconsideration of said order but reconsideration was

denied in an order dated June 11, 1963. Assailing said two CFI orders and
asserting their alleged right not to be denied free access to the courts by

It is further argued that the docket fee of P14,500 would very well be
shouldered by petitioners since there are around 9,000 of them. It must be
remembered, however that the action in question was filed by way of a class

invoking Sec. 1, subsec. (21) of Art. III of the Constitution of the

Philippines. They alleged that they had no means, to pay the docket
fee of P14,500.00, being laborers dependent solely on their daily
wages for livehood and possessed of no properties. And in support of
the foregoing, the ten named plaintiffs submitted certificates of the
municipal treasurers of their places of residence stating that they
have no real property declared in their names in said municipalities.

293
suit. And the Rules of Court allowing such procedure state under Sec. 12,
Rule 3:
SEC. 12. Class suit. When the subject matter of the controversy is
one of common or general interest to many persons, and the parties
are so numerous that it is impracticable to bring them all before the
court, one or more may sue or defend for the benefit of all. But in
such case the court shall make sure that the parties actually before it
are sufficiently numerous and representative so that all interest
concerned are fully protected. Any party in interest shall have a right
to intervene in protection of his individual interest.

even accorded the status of litigants, for non-payment of docket fee; and
perfecting an appeal would have presented the same question of exemption
from legal fees, appeal bond and similar requisites.
Wherefore, petitioners are declared entitled to litigate as paupers in their
class suit before respondent Judge and the latter is hereby ordered to grant
their petition to litigate in forma pauperis. No costs. So ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar,
Sanchez and Castro, JJ., concur.

So that in the suit before respondent Judge the ten named petitioners herein
are the ones suing, albeit for the benefit of all the others. It follows that the
payment of docket fee would be directly charged upon them, not upon the
unnamed "9,000 other laborers." And even if the 9,000 other laborers should
later bear the payment of said docket fee of P14,500, the same would be
spread among them at about P1.60 each. Said cost of pressing their
respective average demand of P1.60 each is, to Our mind, a substantial
imposition on a seasonal farm laborer earning barely subsistent wages. And
as pointed out, this is only the initial fee; subsequent fees and charges would
have to be paid. The philosophy underlying the constitutional mandate of
free access to the courts notwithstanding poverty, therefore, calls for
exemption of herein petitioners from payment of the aforesaid legal fees in
their assertion and claim of substantial rights under the Sugar Act of 1952.
Returning to the purpose of all Constitutions, as mentioned earlier, We find
this course the most sensible, logical and practical construction demanded
by the free access clause of the Constitution. For a contrary interpretation
could not make said provision the living reality that it is designed to be.
As regards the fact that the supporting certifications of indigence refer only to
the ten named plaintiffs, suffice it to reiterate that this involves a class suit,
where it is not practicable to bring all the other 9,000 laborers before the
court. This Court finds the supporting evidence of indigence adequate,
showing in petitioners' favor, as plaintiffs in the suit before respondent Judge,
the right not to be denied free access to the courts by reason of poverty.
Since they were excluded from the use and enjoyment of said right,
mandamus lies to enforce it. Appeal was unavailing, since they were not

EN BANC
[G.R. No. 122485. February 1, 1999]

294
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LARRY MAHINAY
Y AMPARADO, accused-appellant.

While they were playing, appellant was always around washing his clothes.
Inside the compound yard was a septic tank (TSN, August 22, 1995, pp. 2931; September 6, 1995, pp. 17; 20-22).

DECISION
PER CURIAM:
A violation of the dignity, purity and privacy of a child who is still innocent
and unexposed to the ways of worldly pleasures is a harrowing experience
that destroys not only her future but of the youth population as well, who in
the teachings of our national hero, are considered the hope of the
fatherland. Once again, the Court is confronted by another tragic desecration
of human dignity, committed no less upon a child, who at the salad age of a
few days past 12 years, has yet to knock on the portals of womanhood, and
met her untimely death as a result of the "intrinsically evil act" of nonconsensual sex called rape. Burdened with the supreme penalty of death,
rape is an ignominious crime for which necessity is neither an excuse nor
does there exist any other rational justification other than lust. But those who
lust ought not to lust.
The Court quotes with approval from the People's Brief, the facts
narrating the horrible experience and the tragic demise of a young and
innocent child in the bloody hands of appellant, as such facts are ably
supported by evidence on record:[1] *
"Appellant Larry Mahinay started working as houseboy with Maria Isip on
November 20, 1993. His task was to take care of Isip's house which was
under construction adjacent to her old residence situated inside a compound
at No. 4165 Dian Street, Gen. T. de Leon, Valenzuela , Metro Manila. But he
stayed and slept in an apartment also owned by Isip, located 10 meters
away from the unfinished house (TSN, September 6, 1995, pp. 5-10).
"The victim, Ma. Victoria Chan, 12 years old, was Isip's neighbor in Dian
Street. She used to pass by Isip's house on her way to school and play
inside the compound yard, catching maya birds together with other children.

"On June 25, 1995, at 8 o'clock a.m., appellant joined Gregorio Rivera in a
drinking spree. Around 10 o'clock in the morning, appellant, who was already
drunk, left Gregorio Rivera and asked permission from Isip to go out with his
friends (TSN, September 6, 1995, pp. 9-11).
"Meantime, Isip's sister-in-law, Norgina Rivera, who also owned a store
fronting the compound, saw Ma. Victoria on that same day three to four
times catching birds inside Isip's unfinished house around 4 o'clock in the
afternoon. The unfinished house was about 8 meters away from Rivera's
store (TSN, September 18, 1995, pp.9-11).
"On the other hand, Sgt. Roberto Suni, also a resident of Dian Street, went
to his in-law's house between 6 to 7 o'clock p.m. to call his office regarding
changes on the trip of President Fidel V. Ramos. The house of his in-laws
was near the house of Isip. On his way to his in-law's house, Sgt. Suni met
appellant along Dian Street. That same evening, between 8 to 9 o'clock p.m.,
he saw Ma. Victoria standing in front of the gate of the unfinished house
(TSN, September 27, 1995, pp. 3-7; 14-17).
"Later, at 9 o'clock in the evening, appellant showed up at Norgina Rivera's
store to buy lugaw. Norgina Rivera informed appellant that there was none
left of it. She notice that appellant appeared to be uneasy and in deep
thought. His hair was disarrayed; he was drunk and was walking in a dazed
manner. She asked why he looked so worried but he did not answer. Then
he left and walked back to the compound (TSN, September 18, 1995, pp. 48; 12-14).
"Meanwhile, Elvira Chan noticed that her daughter, Ma. Victoria, was
missing. She last saw her daughter wearing a pair of white shorts, brown
belt, a yellow hair ribbon, printed blue blouse, dirty white panty, white lady
sando and blue rubber slippers (TSN, August 23, 1995, pp. 22, 33).

295
"Isip testified that appellant failed to show up for supper that night. On the
following day, June 26, 1995, at 2 o'clock in the morning, appellant boarded
a passenger jeepney driven by Fernando Trinidad at thetalipapa. Appellant
alighted at the top of the bridge of the North Expressway and had thereafter
disappeared (TSN, September 20, 1995, pp. 4-9; September 27, 1995; pp.
14-17).

Hematoma, forehead, and scalp, left, 3.5 x 3.0 cm.

"That same morning, around 7:30, a certain Boy found the dead body of Ma.
Victoria inside the septic tank. Boy immediately reported what he saw to the
victim's parents, Eduardo and Elvira Chan (TSN, September 6, 1995, p. 13).

Tracheo-bronchial tree, congested.

"With the help of the Valenzuela Police, the lifeless body of Ma. Victoria was
retrieved from the septic tank. She was wearing a printed blouse without
underwear. Her face bore bruises. Results of the autopsy revealed the
following findings:

Stomach, contain 1/4 rice and other food particles.

Cyanosis, lips and nailbeds,

REMARKS: Hymen: tall, thick with complete lacerations at 4:00 and 8:00
o'clock position corresponding to the face of a watch edges congested with
blood clots. (TSN, August 18, 1995; p. 4; Record, p. 126)

Contusions, supra pubic area, 6.0 x 3.0 cm., thigh right,

Anterior aspect, middle third, 4.5 x 3.0 cm.
Contused-abrasions on the forehead, 5.0 x 5.0 cm, angle of the left eye,
lateral aspect, 2.5 x 1.5 cm. left jaw, 13.5 x 7.0 cm. neck, antero-lateral
aspect, right, 2.0 x 1.0 cm. and left, 7.0 x 6.0 cm., left iliac area, 9.0 x 5.5 cm.
intraclavicular area, left, posterior aspect, 4.0 x 2.0 cm. scapular area, right
4.0 x 4.0 cm. subscapular area, left, 1.5 x 1.5 cm. lumbar area, left 7.0 x 8.0
cm. arm, left, posterior aspect, middle third, 11.00 x 4.0 cm. elbows, right, 4.0
x 3.0 cm. and left 6.0 x 5.0 cm. forearms, left, posterior aspect, lower rd, 5.2
x 4.0 cm. hand, left, dorsal aspect, 0.8 x 0.9 cm. thighs; right antero-lateral
aspect, upper 33rd, 12.0 x 10.0 cm. right anterior aspect, lower 3rd 5.0 x 2.0
cm. and left antero-lower 3rd , 5.5 x 2.5 cm. knee, right, lateral aspect, 1.5 x
1.0 cm. lateral mallcolum, left, 3.0 x 3.5 cm. foot, left, dorsal aspect 2.2 x 1.0
cm.

Hemorrhage, interstitial, underneath nailmarks, neck, subepicardial,

subpleural petechial hemorrhages.
Hemorrhage, subdural, left fronto-parietal area.

Other visceral organs, congested.

CAUSE OF DEATH - Asphyxia by Manual Strangulation; Traumatic Head

Injury, Contributory.

"Back in the compound, SPO1 Arsenio Nacis and SPO1 Arnold Alabastro
were informed by Isip that her houseboy, appellant Larry Mahinay, was
missing. According to her, it was unlikely for appellant to just disappear from
the apartment since whenever he would go out, he would normally return on
the same day or early morning of the following day (TSN, September 6,
1995, pp. 6-11-27).
"SPO1 Nacis and SPO1 Alabastro were also informed that a townmate of
appellant was working in a pancit factory at Barangay Reparo, Caloocan
City. They proceeded to said place. The owner of the factory confirmed to
them that appellant used to work at the factory but she did not know his
present whereabouts. Appellant's townmate, on the other hand, informed
them that appellant could possibly be found on 8th Street, Grace Park,
Caloocan City (TSN, August 14, 1995, pp. 8-9).

296
"The policemen returned to the scene of the crime. At the second floor of the
house under construction, they retrieved from one of the rooms a pair of dirty
white short pants, a brown belt and a yellow hair ribbon which was identified
by Elvira Chan to belong to her daughter, Ma. Victoria. They also found
inside another room a pair of blue slippers which Isip identified as that of
Appellant. Also found in the yard, three armslength away from the septic tank
were an underwear, a leather wallet, a pair of dirty long pants and a pliers
positively identified by Isip as appellant's belongings. These items were
brought to the police station (TSN, August 14, 1995, pp. 10-13; August 18,
1995, pp. 3-8; August 23, 1995, pp. 21-25).
"A police report was subsequently prepared including a referral slip
addressed to the office of the Valenzuela Prosecutor. The next day, SPO1
Virgilio Villano retrieved the victim's underwear from the septic tank (TSN,
August 23, 1995, pp. 3-8; 14-17).
"After a series of follow-up operations, appellant was finally arrested in
Barangay Obario Matala, Ibaan, Batangas. He was brought to Valenzuela
Police Station. On July 7, 1995, with the assistance of Atty. Restituto
Viernes, appellant executed an extra-judicial confession wherein he narrated
in detail how he raped and killed the victim. Also, when appellant came face
to face with the victim's mother and aunt, he confided to them that he was
not alone in raping and killing the victim. He pointed to Zaldy and Boyet as
his co-conspirators (TSN, August 14, 1995, pp. 13-21)."
Thus, on July 10, 1995, appellant was charged with rape with homicide
in an Information which reads:[2]
"That on or about the 26th day of June 1995 in Valenzuela, Metro Manila and
within the jurisdiction of this Honorable Court the above-named accused, by
means of force and intimidation employed upon the person of MARIA
VICTORIA CHAN y CABALLERO, age 12 years old, did then and there
wilfully, unlawfully and feloniously lie with and have sexual intercourse with
said MARIA VICTORIA CHAN y CABALLERO against her will and without
her consent; that on the occasion of said sexual assault, the above-named

accused, choke and strangle said MARIA VICTORIA CHAN y CABALLERO

as a result of which, said victim died.
"Contrary to law."[3]
to which he pleaded not guilty. After trial, the lower court rendered a decision
convicting appellant of the crime charged, sentenced him to suffer the
penalty of death and to pay a total of P73,000.00 to the victim's heirs. The
dispositive portion of the trial court's decision states:
"WHEREFORE, finding accused Larry Mahinay y Amparado guilty beyond
reasonable doubt of the crime charged, he is hereby sentenced to death by
electricution (sic). He is likewise condemned to indemnify the heirs of the
victim, Ma. Victoria Chan the amount of P50,000.00 and to pay the further
sum of P23,000.00 for the funeral, burial and wake of the victim.
"Let the complete records of the case be immediately forwarded to
the Honorable Supreme Court for the automatic review in accordance to
Article 47 of the Revised Penal Code as amended by Section 22 of Republic
Act No. 7659.
"SO ORDERED."[4]
Upon automatic review by the court en banc pursuant to Article 47 of the
Revised Penal Code (RPC), as amended,[5] appellant insists that the
circumstantial evidence presented by the prosecution against him is
insufficient to prove his guilt beyond reasonable doubt. In his testimony
summarized by the trial court, appellant offered his version of what
transpired as follows:
(T)hat on June 25, 1995, around 9:30 a.m. on Dian Street, Gen. T. de Leon,
Valenzuela, Metro Manila, he joined Gregorio Rivera and a certain Totoy in a
drinking spree. Gregorio Rivera is the brother of Maria Isip, appellants
employer. After consuming three cases of red horse beer, he was summoned
by Isip to clean the jeepney. He finished cleaning the jeepney at 12 oclock

297
noon. Then he had lunch and took a bath. Later, he asked permission from
Isip to go out with his friends to see a movie. He also asked for a cash
advance of P300.00 (TSN, October 16, 1995, pp. 4-5).
At 2 oclock in the afternoon, appellant, instead of going out with his friend,
opted to rejoin Gregorio Rivera and Totoy for another drinking session. They
consumed one case of red horse beer. Around 6 oclock p.m., Zaldy, a coworker, fetched him at Gregorio Riveras house. They went to Zaldys house
and bought a bottle of gin. They finished drinking gin around 8 oclock p.m.
After consuming the bottle of gin, they went out and bought another bottle of
gin from a nearby store. It was already 9 oclock in the evening. While they
were at the store, appellant and Zaldy met Boyet. After giving the bottle of
gin to Zaldy and Boyet, appellant left (TSN, October 16, 1995, pp. 6-7).
On his way home, appellant passed by Norgina Riveras store to
buy lugaw. Norgina Rivera informed him that there was none left of it. He left
the store and proceeded to Isips apartment. But because it was already
closed, he decided to sleep at the second floor of Isips unfinished house.
Around 10 oclock p.m., Zaldy and Boyet arrived carrying a cadaver. The two
placed the body inside the room where appellant was sleeping. As appellant
stood up, Zaldy pointed to him a knife. Zaldy and Boyet directed him to rape
the dead body of the child or they would kill him. He, However, refused to
follow. Then, he was asked by Zaldy and Boyet to assist them in bringing the
dead body downstairs. He obliged and helped dump the body into the septic
tank. Thereupon, Zaldy and Boyet warned him that should they ever see him
again, they would kill him. At 4 oclock the following morning, he left the
compound and proceeded first to Navotas and later to Batangas (TSN,
October 16, 1995, pp. 4-13).
Subsequently, appellant was apprehended by the police officers in Ibaan,
Batangas. The police officers allegedly brought him to a big house
somewhere in Manila. There, appellant heard the police officers plan to
salvage him if he would not admit that he was the one who raped and killed
the victim. Scared, he executed an extra-judicial confession. He claimed that

he was assisted by Atty. Restituto Viernes only when he was forced to sign
the extra-judicial confession (TSN, October 16, 1995, pp. 9-11).[6]
This being a death penalty case, the Court exercises the greatest
circumspection in the review thereof since there can be no stake higher and
no penalty more severe x x x than the termination of a human life. [7] For life,
once taken is like virginity, which once defiled can never be restored. In order
therefore, that appellants guilty mind be satisfied, the Court states the
reasons why, as the records are not shy, for him to verify.
The proven circumstances of this case when juxtaposed with appellants
proffered excuse are sufficient to sustain his conviction beyond reasonable
doubt, notwithstanding the absence of any direct evidence relative to the
commission of the crime for which he was prosecuted. Absence of direct
proof does not necessarily absolve him from any liability because under the
Rules on evidence[8] and pursuant to settled jurisprudence,[9] conviction may
be had on circumstantial evidence provided that the following requisites
concur:
1. there is more than one circumstance;
2. the facts from which the inferences are derived are proven; and
3. the combination of all the circumstances is such as to produce a
conviction beyond reasonable doubt.
Simply put, for circumstantial evidence to be sufficient to support a
conviction, all circumstances must be consistent with each other, consistent
with the hypothesis that the accused is guilty, and at the same time
inconsistent with the hypothesis that he is innocent and with every other
rational hypothesis except that of guilt.[10] Facts and circumstances
consistent with guilt and inconsistent with innocence, constitute evidence
which, in weight and probative force, may surpass even direct evidence in its
effect upon the court.[11]

298
In the case at bench, the trial court gave credence to several
circumstantial evidence, which upon thorough review of the Court is more
than enough to prove appellants guilt beyond the shadow of reasonable
doubt. These circumstantial evidence are as follows:
FIRST Prosecution witness Norgina Rivera, sister-in-law of Maria Isip, owner
of the unfinished big house where the crime happened and the septic tank
where the body of Maria Victoria Chan was found in the morning of June 26,
1995 is located, categorically testified that at about 9:00 in the evening on
June 25, 1995, accused Larry Mahinay was in her store located in front
portion of the compound of her sister-in-law Maria Isip where the unfinished
big house is situated buying rice noodle (lugaw). That she noticed the
accuseds hair was disarranged, drunk and walking in sigsaging manner.
That the accused appeared uneasy and seems to be thinking deeply. That
the accused did not reply to her queries why he looked worried but went
inside the compound.
SECOND Prosecution witness Sgt. Roberto G. Suni, categorically, testified
that on June 25, 1995 between 6:00 and 7:00 in the evening, on his way to
his in-laws house, he met accused Larry Mahinay walking on the road
leading to his in-laws residence which is about 50 to 75 meters away to the
unfinished big house of Maria Isip. That he also saw victim Maria Victoria
Chan standing at the gate of the unfinished big house of Maria Isip between
8:00 and 9:00 in the same evening.
THIRD Prosecution witness Maria Isip, owner of the unfinished big house
where victims body was found inside the septic tank, testified that accused
Larry Mahinay is her houseboy since November 20, 1993. That in the
morning of June 25, 1995, a Sunday, Larry Mahinay asked permission from
her to leave. That after finishing some work she asked him to do accused
Larry Mahinay left. That it is customary on the part of Larry Mahinay to return
in the afternoon of the same day or sometimes in the next morning. That
accused Larry Mahinay did not return until he was arrested in Batangas on
July 7, 1995.

FOURTH Prosecution witness Fernando Trinidad, a passenger jeepney

driver plying the route Karuhatan-Ugong and vice versa which include Diam
St., Gen. T. de Leon, Valenzuela, Metro Manila, pinpointed the accused Larry
Mahinay as one of the passengers who boarded his passenger jeepney on
June 26, 1995 at 2:00 early morning and alighted on top of the overpass of
the North Expressway.
FIFTH Personal belongings of the victim was found in the unfinished big
house of Maria Isip where accused Larry Mahinay slept on the night of the
incident. This is a clear indication that the victim was raped and killed in the
said premises.
There is no showing that the testimonies of the prosecution witnesses (sic)
fabricated or there was any reason for them to testify falsely against the
accused. The absence of any evidence as to the existence of improper
motive sustain the conclusion that no such improper motive exists and that
the testimonies of the witnesses, therefore, should be given full faith and
credit. (People vs. Retubado, 58585 January 20, 1988 162 SCRA 276, 284;
People vs. Ali L-18512 October 30, 1969, 29 SCRA 756).
SIXTH Accused Larry Mahinay during the custodial investigation and after
having been informed of his constitutional rights with the assistance of Atty.
Restituto Viernes of the Public Attorneys Office voluntarily gave his
statement admitting the commission of the crime. Said confession of
accused Larry Mahinay given with the assistance of Atty. Restituto Viernes is
believed to have been freely and voluntarily given. That accused did not
complain to the proper authorities of any maltreatment on his person (People
vs. delos Santos L-3398 May 29, 1984; 150 SCRA 311). He did not even
informed the Inquest Prosecutor when he sworn to the truth of his statement
on July 8, 1995 that he was forced, coersed or was promised of reward or
leniency. That his confession abound with details know only to him. The
Court noted that a lawyer from the Public Attorneys Office Atty. Restituto
Viernes and as testified by said Atty. Viernes he informed and explained to
the accused his constitutional rights and was present all throughout the
giving of the testimony. That he signed the statement given by the accused.

299
Lawyer from the Public Attorneys Office is expected to be watchful and
vigilant to notice any irregularity in the manner of the investigation and the
physical conditions of the accused. The post mortem findings shows that the
cause of death Asphyxia by manual strangulation; Traumatic Head injury
Contributory substantiate. Consistent with the testimony of the accused that
he pushed the victim and the latters head hit the table and the victim lost
consciousness.
Pagpasok niya sa kuwarto, hinawakan ko siya sa kamay tapos tinulak ko
siya, tapos tumama iyong ulo niya sa mesa. Ayon na, nakatulog na siya
tapos ni-rape ko na siya.
There is no clear proof of maltreatment and/or tortured in giving the
statement. There were no medical certificate submitted by the accused to
sustain his claim that he was mauled by the police officers.
There being no evidence presented to show that said confession were
obtained as a result of violence, torture, maltreatment, intimidation, threat or
promise of reward or leniency nor that the investigating officer could have
been motivated to concoct the facts narrated in said affidavit; the confession
of the accused is held to be true, correct and freely or voluntarily given.
(People v. Tuazon 6 SCRA 249; People v. Tiongson 6 SCRA 431, People v.
Baluran 52 SCRA 71, People v. Pingol 35 SCRA 73.)
SEVENTH Accused Larry Mahinay testified in open Court that he was not
able to enter the apartment where he is sleeping because it was already
closed and he proceeded to the second floor of the unfinished house and
slept. He said while sleeping Zaldy and Boyet arrived carrying the cadaver of
the victim and dumped it inside his room. That at the point of a knife, the two
ordered him to have sex with the dead body but he refused. That the two
asked him to assist them in dumping the dead body of the victim in the septic
tank downstairs. (Tsn pp8-9 October 16, 1995). This is unbelievable and
unnatural. Accused Larry Mahinay is staying in the apartment and not in the
unfinished house. That he slept in the said unfinished house only that night
of June 25, 1995 because the apartment where he was staying was already

closed. The Court is at a loss how would Zaldy and Boyet knew he (Larry
Mahinay) was in the second floor of the unfinished house.
Furthermore, if the child is already dead when brought by Zaldy and Boyet in
the room at the second floor of the unfinished house where accused Larry
Mahinay was sleeping, why will Boyet and Zaldy still brought the cadaver
upstairs only to be disposed/dumped later in the septic tank located in the
ground floor. Boyet and Zaldy can easily disposed and dumped the body in
the septic tank by themselves.
It is likewise strange that the dead body of the child was taken to the room
where accused Larry Mahinay was sleeping only to force the latter to have
sex with the dead body of the child.
We have no test to the truth of human testimony except its conformity to aver
knowledge observation and experience. Whatever is repugnant to these
belongs to the miraculous. (People vs. Santos L-385 Nov. 16, 1979)
EIGHT If the accused did not commit the crime and was only forced to
disposed/dumpted the body of the victim in the septic tank, he could have
apprise Col. Maganto, a high ranking police officer or the lady reporter who
interviewed him. His failure and omission to reveal the same is unnatural. An
innocent person will at once naturally and emphatically repel an accusation
of crime as a matter of preservation and self-defense and as a precaution
against prejudicing himself. A persons silence therefore, particularly when it
is persistent will justify an inference that he is not innocent. (People vs.
Pilones, L-32754-5 July 21, 1978).
NINTH The circumstance of flight of the accused strongly indicate his
consciousness of guilt. He left the crime scene on the early morning after the
incident and did not return until he was arrested in Batangas on July 7, 1995.
[12]

Guided by the three principles in the review of rape cases, to wit:[13]

300
1). An accusation for rape can be made with facility; it is difficult to
prove but more difficult for the person accused, though innocent,
to disprove;

When the rape is attempted or frustrated and a homicide is committed by

reason or on the occasion thereof, the penalty shall be reclusion perpetua to
death.

2). In view of the intrinsic nature of the crime of rape, where only
two persons are usually involved, the testimony of the
complainant is scrutinized with extreme caution; and

When by reason or on the occasion of the rape, a homicide is committed, the

penalty shall be death.

3). The evidence of the prosecution stands or falls on its own merits
and cannot be allowed to draw strength from the weakness of
the defense.
the foregoing circumstantial evidence clearly establishes the felony of rape
with homicide defined and penalized under Section 335 of the Revised Penal
Code, as amended by Section 11, R.A. 7659, which provides:
When and how rape is committed Rape is committed by having carnal
knowledge of a woman under any of the following circumstances.
1.) By using force or intimidation;
2.) When the woman is deprived of reason or otherwise
unconscious; and

The death penalty shall also be imposed if the crime of rape is committed
with any of the following attendant circumstances:
1.) When the victim is under eighteen (18) years of age and the
offender is a parent, ascendant, step-parent, guardian, relative
by consanguinity or affinity within the third civil degree, or the
common-law spouse of the parent of the victim.
2.) When the victim is under the custody of the police or military
authorities.
3.) When the rape is committed in full view of the husband, parent,
any of the children or other relatives within the third degree
of consanguinity.
4.) When the victim is a religious or a child below seven (7) years
old.

3.) When the woman is under twelve years of age or is demented.

The crime of rape shall be punished by reclusion perpetua.
Whenever the crime of rape is committed with the use of a deadly weapon or
by two or more persons, the penalty shall be reclusion perpetua to death.
When by reason or on the occasion of the rape, the victim has become
insane, the penalty shall be death.

5.) When the offender knows that he is afflicted with Acquired

Immune Deficiency Syndrome (AIDS) disease.
6.) When committed by any member of the Armed Forces of the
Philippines or Philippine National Police or any law enforcement
agency.
7.) When by reason or on the occasion of the rape, the victim has
suffered permanent physical mutilation.[14]

301
At the time of the commission of this heinous act, rape was still considered a
crime against chastity,[15] although under the Anti-Rape Law of 1997 (R.A.
No. 8353), rape has since been re-classified as a crime against persons
under Articles 266-A and 266-B, and thus, may be prosecuted even without a
complaint filed by the offended party.

A: Under normal circumstances this might have (sic) caused by a

penetration of an organ.
Q: So, the laceration was caused by the penetration of a male organ?
A: Adult male organ, sir.

The gravamen of the offense of rape, prior to R.A. 8353, is sexual

congress with a woman by force and without consent. [16] (Under the new law,
rape may be committed even by a woman and the victim may even be a
man.)[17] If the woman is under 12 years of age, proof of force and consent
becomes immaterial[18] not only because force is not an element of statutory
rape,[19] but the absence of a free consent is presumed when the woman is
below such age. Conviction will therefore lie, provided sexual intercourse is
be proven. But if the woman is 12 years of age or over at the time she was
violated, as in this case, not only the first element of sexual intercourse must
be proven but also the other element that the perpetrators evil acts with the
offended party was done through force, violence, intimidation or threat needs
to be established. Both elements are present in this case.
Based on the evidence on record, sexual intercourse with the victim was
adequately proven. This is shown from the testimony of the medical doctor
who conducted post mortem examination on the childs body:
Q: And after that what other parts of the victim did you examine?

Q: You are very sure of that, Mr. Witness?

A: I am very sure of that.[20]
Besides, as may be gleaned from his extrajudicial confession, appellant
himself admitted that he had sexual congress with the unconscious child.
15. T: Ano ang nangyari ng mga sandali o oras na iyon?
S: Natutulog po ako sa itaas ng bahay ni ATE MARIA, yung malaking
bahay na ginagawa, tapos dumating yung batang babae. Pag-pasok
niya sa kuwarto hinawakan ko siya sa kamay tapos tinulak ko siya.
Tapos tumama yung ulo niya sa mesa. Ayon na, nakakatulog na siya
tapos ni rape ko na siya.
16. T: Ano ang suot nung batang babae na sinasabi mo?

A: Then I examined the genitalia of the victim.

S: Itong short na ito, (pointing to a dirty white short placed atop this
investigators table. Subject evidence were part of evidences
recovered at the crime scene).

Q: And what did you find out after you examined the genitalia of the
victim?

17. T: Bakit mo naman ni rape yung batang babae?

A: The hymen was tall-thick with complete laceration at 4:00 oclock and
8:00 oclock position and that the edges were congested.
Q: Now, what might have caused the laceration?

S: Eh nasobrahan ako ng lasing. Hindi ko na alam ang ginagawa ko.

18. T: Ano ba ang inyong ininom bakit ka nasobrahan ng lasing?
S: Red Horse po at saka GIN.

302
19. T: Saan lugar ng malaking bahay ni ATE MARIA mo ni rape yung
batang babae?

S: Nakapasok po doon sa ari nung babae.

S: Sa kuwarto ko po sa itaas.

27. T: Natapos mong ma-rape si MA. VICTORIA CHAN, ano pa ang

sumunod mong ginawa?

20. T: Kailan ito at anong oras nangyari?

S: Natulak ko siya sa terrace.

S: Mga bandang alas 8:00 ng gabi, araw ng Linggo, hindi ko na

matandaan kung anong petsa, basta araw ng Linggo.

28. T: Ano ang nangyari kay MA. VICTORIA matapos mong itulak sa
terrace?

21. T: Saan lugar ito nangyari?

S: Inilagay ko po sa poso-negra.

S: Sa Diam, Gen. T. de Leon, Valenzuela, M.M.

29. T: Saan makikita yung poso-negra na sinasabi mo?

22. T: Alam mo na ba ang pangalan ng batang babae na ni rape mo?

S: Doon din sa malaking bahay ni ATE MARIA.

S: Hindi ko po alam.

30. T: Bakit mo namang naisipang ilagay si MA. VICTORIA sa posonegra?

23. T: Ngayon, nais kong ipaalam sa iyo na ang pangalan ng batang

babae na iyong ni rape at pinatay ay si MA. VICTORIA CHAN?
Matatandaan mo ba ito?

S: Doon ko lang po inilagay.

31. T: Bakit nga doon mo inilagay siya?

S: Oho.
S: Natatakot po ako.
24. T: Nung ma-rape mo, nakaraos ka ba?
32. T: Kanino ka natatakot?
S: Naka-isa po.
25. T: Nais kong liwanagin sa iyo kung ano ang ibig sabihin ng
NAKARAOS, maaari bang ipaliwanag mo ito?

S: Natatakot po ako sa ginawa kong masama, natatakot ako sa mga

pulis.
33. T: Buhay pa ba si MA. VICTORIA nung ilagay mo siya sa poso-negra?

S: Nilabasan po ako ng tamod.

26. T: Nung nakaraos ka, nasaan parte ng katawan ng batang babae
yung iyong ari?

S: Hindi ko po alam dahil nung pagbagsak niya inilagay ko na siya sa

poso-negra.

303
34. T: Nung gawin mo ba itong krimen na ito, mayroon ka kasama?

Q Will you please inform the Court what was that call about?

S: Nag-iisa lang po ako.

A We went to the station, police investigation together with Atty. Froilan

Zapanta and we were told by Police Officer Alabastro that one Larry
Mahinay would like to confess of the crime of, I think, rape with
homicide.

35. T: Noong mga oras o sandaling gahasain mo si MA. VICTORIA

CHAN, buhay pa ba siya o patay na?
S: Buhay pa po.

Q And upon reaching the investigation room of Valenzuela PNP who were
the other person present?

36. T: Papaano mo siya pinatay?

S: Tinulak ko nga po siya sa terrace.

[21]

In proving sexual intercourse, it is not full or deep penetration of the

victims vagina; rather the slightest penetration of the male organ into the
female sex organ is enough to consummate the sexual intercourse. [22] The
mere touching by the males organ or instrument of sex of the labia of the
pudendum of the womans private parts is sufficient to consummate rape.
From the wounds, contusions and abrasions suffered by the victim, force
was indeed employed upon her to satisfy carnal lust. Moreover, from
appellants own account, he pushed the victim causing the latter to hit her
head on the table and fell unconscious. It was at that instance that he
ravished her and satisfied his salacious and prurient desires. Considering
that the victim, at the time of her penile invasion, was unconscious, it could
safely be concluded that she had not given free and voluntary consent to her
defilement, whether before or during the sexual act.
Another thing that militates against appellant is his extrajudicial
confession, which he, however, claims was executed in violation of his
constitutional right to counsel. But his contention is belied by the records as
well as the testimony of the lawyer who assisted, warned and explained to
him his constitutionally guaranteed pre-interrogatory and custodial rights. As
testified to by the assisting lawyer:

A Police Officer Alabastro, sir, Police Officer Nacis and other investigator
inside the investigation room and the parents of the child who was
allegedly raped.
Q- And when you reached the investigation room do you notice whether
the accused already there?
A The accused was already there.
Q Was he alone?
A he was alone, sir.
Q So, when you were already infront of SPO1 Arnold Alabastro and the
other PNP Officers, what did they tell you, if any?
A They told us together with Atty. Zapanta that this Larry Mahinay would
like to confess of the crime charged, sir.
Q By the way, who was that Atty. Zapanta?
A Our immediate Superior of the Public Attorneys Office.
Q Was he also present at the start of the question and answer period to
the accused?

304
A No more, sir, he already went to our office. I was left alone.

Q Will you please go over this and tell the Court whether that is the same
document you mentioned?

Q But he saw the accused, Larry Mahinay?

A Yes, sir, these were the said rights reduced into writing.
A Yes, sir.
ATTY. PRINCIPE:
Q Now, when Atty. Zapanta left at what time did the question and answer
period start?

May we request, Your Honor, that this document be marked as our Exhibit
A proper.

A If I am not mistaken at around 4:05 of July 7, 1995 in the afternoon, sir.

Q And when this question and answer period started, what was the first
thing that you did as assisting lawyer to the accused?

Q Do you recall after reducing into writing this constitutional right of the
accused whether you asked him to sign to acknowledge or to
conform?

A First, I tried to explain to him his right, sir, under the constitution.

A I was the one who asked him, sir. It was Police Officer Alabastro.

Q What are those right?

Q But you were present?

A That he has the right to remain silent. That he has the right of a counsel
of his own choice and that if he has no counsel a lawyer will be
appointed to him and that he has the right to refuse to answer any
question that would incriminate him.

A I was then present when he signed.

Q Now, after enumerating these constitutional rights of accused Larry

Mahinay, do you recall whether this constitutional right enumerated
by you were reduced in writing?

Q There is a signature in this constitutional right after the enumeration,

before and after there are two (2) signatures, will you please
recognize the two (2) signatures?
A These were the same signatures signed in my presence, sir.
Q The signature of whom?

A Yes, sir, and it was also explained to him one by one by Police Officer
Alabastro.
Q I show to you this constitutional right which you said were reduced into
writing, will you be able to recognize the same?
A Yes, sir.

A The signature of Larry Mahinay, sir.

ATTY. PRINCIPE:
May we request, Your Honor, that the two (2) signatures identified by my
compaero be encircled and marked as Exhibit A-1 and A-2.

305
Q After you said that you apprised the accused of his constitutional right
explaining to him in Filipino, in local dialect, what was the respond of
the accused?

Q And there is also a signature after the waiver in Filipino over the
typewritten name Larry Mahinay, Nagsasalaysay, whose signature is
that?

A- Larry Mahinay said that we will proceed with his statement.

A This is also signed in my presence.

Q What was the reply?

Q Why are you sure that this is his signature?

A He said Opo.

A He signed in my presence, sir.

Q Did you ask him of his educational attainment?

A It was the Police Officer who asked him.

Q And below immediately are the two (2) signatures. The first one is when
Larry Mahinay subscribed and sworn to, there is a signature here, do
you recognize this signature?

Q In your presence?

A This is my signature, sir.

A In my presence, sir.

Q And immediately after your first signature is a Certification that you

have personally examined the accused Larry Mahinay and testified
that he voluntary executed the Extra Judicial Confession, do you
recognize the signature?

Q And when he said or when he replied Opo so the question started?

A Yes, sir.

A This is also my signature, sir.[23] (emphasis supplied).

Q I noticed in this Exhibit A that there is also a waiver of rights, were you
present also when he signed this waiver?
A Yes, sir, I was also present.
Q Did you explain to him the meaning of this waiver?
A I had also explained to him, sir.
Q In Filipino?
A In Tagalog, sir.

Appellants defense that two other persons brought to him the dead body
of the victim and forced him to rape the cadaver is too unbelievable. In the
words of Vice-Chancellor Van Fleet of New Jersey,[24]
Evidence to be believed must not only proceed from the mouth of a credible
witness, but must be credible in itself- such as the common experience and
observation of mankind can approve as probable under the
circumstances. We have no test of the truth of human testimony, except its
conformity to our knowledge, observation and experience. Whatever is
repugnant to these belongs to the miraculous, and is outside of judicial
cognizance.

306
Ultimately, all the foregoing boils down to the issue of credibility of
witnesses. Settled is the rule that the findings of facts and assessment of
credibility of witnesses is a matter best left to the trial court because of its
unique position of having observed that elusive and incommunicable
evidence of the witnesses department on the stand while testifying, which
opportunity is denied to the appellate courts.[25]In this case, the trial courts
findings, conclusions and evaluation of the testimony of witnesses is
received on appeal with the highest respect,[26] the same being supported by
substantial evidence on record.There was no showing that the court a
quo had overlooked or disregarded relevant facts and circumstances which
when considered would have affected the outcome of this case[27] or justify a
departure from the assessments and findings of the court below. The
absence of any improper or ill-motive on the part of the principal witnesses
for the prosecution all the more strengthens the conclusion that no such
motive exists.[28] Neither was any wrong motive attributed to the police
officers who testified against appellant.
Coming now to the penalty, the sentence imposed by the trial court is
correct. Under Article 335 of the Revised Penal Code (RPC), as amended by
R.A. 7659 when by reason or on occasion of the rape, a homicide is
committed, the penalty shall be death. This special complex crime is treated
by law in the same degree as qualified rape -- that is, when any of the 7 (now
10) attendant circumstances enumerated in the law is alleged and proven, in
which instances, the penalty is death. In cases where any of those
circumstances is proven though not alleged, the penalty cannot be
death except if the circumstance proven can be properly appreciated as an
aggravating circumstance under Articles 14 and 15 of the RPC which will
affect the imposition of the proper penalty in accordance with Article 63 of the
RPC. However, if any of those circumstances proven but not alleged cannot
be considered as an aggravating circumstance under Articles 14 and 15, the
same cannot affect the imposition of the penalty because Articles 63 of the
RPC in mentioning aggravating circumstances refers to those defined in
Articles 14 and 15. Under R.A. No. 8353, if any of the 10 circumstances is
alleged in the information/complaint, it may be treated as a qualifying
circumstance. But if it is not so alleged, it may be considered as an

aggravating circumstance, in which case the only penalty is death subject to

the usual proof of such circumstance in either case.
Death being a single indivisible penalty and the only penalty prescribed
by law for the crime of rape with homicide, the court has no option but to
apply the same regardless of any mitigating or aggravating circumstance that
may have attended the commission of the crime[29] in accordance with Article
63 of the RPC, as amended.[30] This case of rape with homicide carries with it
penalty of death which is mandatorily imposed by law within the import of
Article 47 of the RPC, as amended, which provides:
The death penalty shall be imposed in all cases in which it must be imposed
under existing laws, except when the guilty person is below eighteen (18)
years of age at the time of the commission of the crime or is more than
seventy years of age or when upon appeal or automatic review of the case
by the Supreme Court, the required majority vote is not obtained for the
imposition of the death penalty, in which cases the penalty shall be reclusion
perpetua. (emphasis supplied).
In an apparent but futile attempt to escape the imposition of the death
penalty, appellant tried to alter his date of birth to show that he was only 17
years and a few months old at the time he committed the rape and thus,
covered by the proscription on the imposition of death if the guilty person is
below eighteen (18) years at the time of the commission of the crime.
[31]
Again, the record rebuffs appellant on this point considering that he was
proven to be already more than 20 years of age when he did the heinous act.
Pursuant to current case law, a victim of simple rape is entitled to a civil
indemnity of fifty thousand pesos (P50,000.00) but if the crime of rape is
committed or effectively qualified by any of the circumstances under which
the death penalty is authorized by present amended law, the civil indemnity
for the victim shall be not less than seventy-five thousand pesos
(P75,000.00).[32] In addition to such indemnity, she can also recover moral
damages pursuant to Article 2219 of the Civil Code[33] in such amount as the
court deems just, without the necessity for pleading or proof of the basis

307
thereof.[34] Civil Indemnity is different from the award of moral and exemplary
damages.[35] The requirement of proof of mental and physical suffering
provided in Article 2217 of the Civil Code is dispensed with because it is
recognized that the victims injury is inherently concomitant with and
necessarily resulting from the odious crime of rape to warrant per se the
award of moral damages.[36] Thus, it was held that a conviction for rape
carries with it the award of moral damages to the victim without need for
pleading or proof of the basis thereof.[37]
Exemplary damages can also be awarded if the commission of the
crime was attended by one or more aggravating circumstances pursuant to
Article 2230 of the Civil Code[38] after proof that the offended party is entitled
to moral, temperate and compensatory damages.[39] Under the
circumstances of this case, appellant is liable to the victims heirs for the
amount of P75,000.00 as civil indemnity andP50,000.00 as moral damages.
Lastly, considering the heavy penalty of death and in order to ensure
that the evidence against and accused were obtained through lawful means,
the Court, as guardian of the rights of the people lays down the procedure,
guidelines and duties which the arresting, detaining, inviting, or investigating
officer or his companions must do and observe at the time of making an
arrest and again at and during the time of the custodial interrogation [40] in
accordance with the Constitution, jurisprudence and Republic Act No. 7438:
[41]
It is high-time to educate our law-enforcement agencies who neglect
either by ignorance or indifference the so-called Miranda rights which had
become insufficient and which the Court must update in the light of new legal
developments:
1. The person arrested, detained, invited or under custodial
investigation must be informed in a language known to and
understood by him of the reason for the arrest and he must be
shown the warrant of arrest, if any; Every other warnings,
information or communication must be in a language known to
and understood by said person;

2. He must be warned that he has a right to remain silent and that

any statement he makes may be used as evidence against him;
3. He must be informed that he has the right to be assisted at all
times and have the presence of an independent and competent
lawyer, preferably of his own choice;
4. He must be informed that if he has no lawyer or cannot afford the
services of a lawyer, one will be provided for him; and that a
lawyer may also be engaged by any person in his behalf, or may
be appointed by the court upon petition of the person arrested or
one acting in his behalf;
5. That whether or not the person arrested has a lawyer, he must be
informed that no custodial investigation in any form shall be
conducted except in the presence of his counsel or after a valid
waiver has been made;
6. The person arrested must be informed that, at any time, he has
the right to communicate or confer by the most expedient means
telephone, radio, letter or messenger with his lawyer (either
retained or appointed), any member of his immediate family, or
any medical doctor, priest or minister chosen by him or by any
one from his immediate family or by his counsel, or be visited
by/confer with duly accredited national or international nongovernment organization. It shall be the responsibility of the
officer to ensure that this is accomplished;
7. He must be informed that he has the right to waive any of said
rights provided it is made voluntarily, knowingly and intelligently
and ensure that he understood the same;
8. In addition, if the person arrested waives his right to a lawyer, he
must be informed that it must be done in writing AND in the
presence of counsel, otherwise, he must be warned that the

308
waiver is void even if he insist on his waiver and chooses to
speak;
9. That the person arrested must be informed that he may indicate
in any manner at any time or stage of the process that he does
not wish to be questioned with warning that once he makes such
indication, the police may not interrogate him if the same had not
yet commenced, or the interrogation must ceased if it has
already begun;
10. The person arrested must be informed that his initial waiver of
his right to remain silent, the right to counsel or any of his rights
does not bar him from invoking it at any time during the process,
regardless of whether he may have answered some questions or
volunteered some statements;
11. He must also be informed that any statement or evidence, as
the case may be, obtained in violation of any of the foregoing,
whether inculpatory or exculpatory, in whole or in part, shall be
inadmissible in evidence.
Four members of the Court although maintaining their adherence to the
separate opinions expressed in People v. Echegaray[42] that R.A. No. 7659,
insofar as it prescribes the death penalty, is unconstitutional nevertheless
submit to the ruling of the Court, by a majority vote, that the law is
constitutional and that the death penalty should accordingly be imposed.
WHEREFORE, the conviction of appellant is hereby AFFIRMED except
for the award of civil indemnity for the heinous rape which is INCREASED
to P75,000.00, PLUS P50,000.00 moral damages.
In accordance with Section 25 of Republic Act No. 7659, amending
Article 83 of the Revised Penal Code, upon finality of this decision, let the
records of this case be forthwith forwarded to the Office of the President for
possible exercise of the pardoning power.

SO ORDERED.
Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan,
Mendoza, Panganiban, Quisumbing, Martinez, Purisima, Pardo,
Buena, and Gonzaga-Reyes, JJ., concur.

309
This is an appeal from the decision of the Regional Trial Court at Olongapo
City, Branch 72 in Criminal Case No. 838-92, entitled "People of the
Philippines versus Donato del Rosario," convicting the accused of the crime
of robbery with homicide and sentencing him to reclusion perpetua.
On November 20, 1992, an information was filed against Donato del Rosario
charging him of robbery with homicide committed as follows:

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 131036

June 20, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
DONATO DEL ROSARIO, defendant-appellant.
BUENA, J.:

"That on or about the twenty-sixth (26th) of September, 1992, in the

City of Olongapo, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, with intent of gain and
without the knowledge and consent of the owner, and by means of
violence and intimidation, did then and there wilfully, unlawfully and
feloniously take, steal and carry away one (1) pc. of 22K grams of
gold bracelet worth P3,500.00, one (1) pc. of diamond ring with letter
E worth P3,200.00, one (1) pc. of wedding ring worth P800.00, two
(2) pairs of gold earring worth P1,600.00 and cash money in the
amount of P1,600.00, all in the total amount of Ten Thousand Seven
Hundred Pesos (P10,700.00), Philippine Currency, belonging to
Emelita Paragua, and on the occasion of said robbery and for the
purpose of enabling him to take, steal and carry away the abovementioned items, the herein accused, did then and there wilfully,
unlawfully, feloniously and taking advantage of superior strength and
with intent to kill treacherously attack, assault, hit her with a hard
object on the head and then strangle and tie the neck of Raquel
Lopez (niece of Emelita Paragua) with a Cat-V wire to prevent her
from breathing and making an outcry, thereby inflicting upon said
Raquel Lopez asphyxia injuries which directly caused her death
shortly thereafter."1
Upon arraignment on February 3, 1993, accused Donato del Rosario,
assisted by counsel, pleaded not guilty to the crime charged. The Regional
Trial Court thereafter proceeded with the trial.
Culled from the records are the following:
On September 26, 1992, at about 8:10 in the morning, Emelita Paragua and
a companion, a Delia Aquino, left their house at 1657 Balic-Balic, Sta. Rita,
Olongapo City to go to the formers stall in the public market. Raquel Lopez,

310
the 11-year old niece of Paragua, was left behind as she had no classes that
day, a Saturday.
Notified of the news that their house was on fire, they went home.
Paragua saw that the sala set, their merchandise (stuffed toys that they sell
at the public market), and the cassette were burned. When she entered the
kitchen, she saw her niece lying on her stomach with a raincoat covering her
head and her neck and arms tied with CATV wire. Parts of her hand and her
thigh were burned. Raquel Lopez was already dead when her aunt
discovered her. The total value of the burned properties was around Thirty
Thousand Pesos (P30,000.00). Emelita Paragua likewise discovered that six
pieces of her jewelries were missing.
SPO1 Ramon Fernandez received a report regarding the fire in Balic-Balic
wherein a minor who was identified as Raquel Lopez was found dead.
Together with his chief investigator, Leonardo Esteban and other personnel,
he went to the scene of the incident to conduct an investigation.
He found the single-storey house in complete disarray. The sala was set on
fire and he found the items therein burned. Likewise the two bedrooms.
He located the body of Raquel Lopez in the kitchen. Her head was covered
with a pink raincoat and around her neck was a CATV wire. She was lying
face down, her hands behind her back.
Inquiries made revealed that a certain Ramon Ilagan was seen in the vicinity
of the house before the incident. Ramon Ilagan was interrogated but denied
the accusation against him. Since no evidence could be produced linking him
to the crime, he was released.
Three days after the incident, the police received information from the live-in
partner of Ilagan, that a certain Donato del Rosario was seen standing at the
back of the house of Paragua before the crime was committed and had
disappeared since then. Del Rosarios mother and common-law wife were
questioned about the whereabouts of the accused. SPO1 Fernandez told the
mother of del Rosario that her son was suspected of committing the crimes
in Balic-Balic.

On October 2, 1992, the Olongapo City police received a call from the Subic
police that Donato del Rosario surrendered to police officer Fernando
Morales, the brother-in-law of his common-law wife, Ruby Tan. Thereafter,
SPO1 Fernandez, together with Inspector Leonardo Esteban and PO3
Laurea, proceeded to Subic to fetch Donato del Rosario.
Del Rosario, even without being asked, told them that he really surrendered
to Morales because he was being bothered by his conscience and that he
was very willing to accompany them to recover the stolen items. He also
volunteered the information as to where he sold the jewelries that he took
from the house of Emelita Paragua.
Thereafter the policemen from Olongapo and Donato del Rosario proceeded
to the places mentioned by the latter Barrio Barretto, Olongapo City, where
the "Lovely Kahael Pawnshop" was located, and Barangay Magsaysay, Iba,
Zambales. Del Rosario was not even handcuffed at the time.
At the Lovely Kahael pawnshop del Rosario pointed out the jewelry that he
had pawned. He also signed the pawnshop ticket in order that a wedding
band and a diamond ring with the letter "E" could be redeemed. At the
pawnshop he was identified by Florencio Gamboa, the OIC/appraiser
therein.
Afterwards they proceeded to Magsaysay, Iba, Zambales to the shop of
Rogelio Adriano. They were not able to immediately recover a bracelet and a
7-day ring that were sold to Adriano, a watch repairer and a buyer/seller of
second hand jewelry, as he had given them to his son for safekeeping.
However, Adriano assured the police that he is going to voluntarily surrender
the jewelry because he learned of the girl who was found dead and of the
robbery. His son, Rogelio Adriano, Jr., returned the jewelry to the police
some days later. Both Adrianos identified del Rosario as the person who sold
them the jewelry. After the jewelry was recovered, the police called Emelita
Paragua who positively identified the jewels as hers.
Del Rosario was then brought to the Olongapo police station. A lawyer, Atty.
Norberto dela Cruz, was called in to assist del Rosario. During the custodial
investigation, Atty. dela Cruz was present the whole time. He informed del
Rosario what was stated in the waiver/confession. It was only when del
Rosario said that he fully understood its contents that Atty. dela Cruz signed

311
it as counsel. SPO1 Fernandez brought the accused and Atty. dela Cruz to
Assistant City Prosecutor Martinez for subscription.
As to be expected, Donato del Rosarios account of the day in question,
September 26, 1992, was different.
He alleged that on the morning of September 26, 1992, at around 7:00 A.M.,
he went to Subic, Zambales to buy containers for his vinegar and Clorox
business. He was with a certain Rancen Anonat, the son of his would-be
employer. They returned to Balic-balic at around 9:00 A.M. and spent the
night at the house of Anonat. The following day, he went to the house of his
common-law wife. On the 28th of September, he went to Navotas and
returned to Subic the next day. On the 30th he stayed with the brother-in-law
of his common-law wife, Fernando Morales, a police officer in Subic.
It was Morales who informed del Rosario that he was a suspect in the arson
case. He was persuaded by Morales to place himself in the custody of the
police pending the investigation of the case, as there was a threat to kill him
by a certain Zapanta, a member of a salvage team in Olongapo. He spent
the night in the detention cell in Subic.
On October 1, four policemen from Olongapo arrived. He was led out of the
detention cell to talk with the policemen. In the investigation room, he was
told that he would be taken to Olongapo for further investigation. Morales
told him to trust the police as they are in the same corps. He was not
handcuffed when he was taken out to the vehicle which would take him to
Olongapo.

Del Rosario did not recall going to the prosecutors office to file or submit his
counter-affidavit. Neither did he go to the fiscals office for preliminary
investigation.
Based on the findings of Dr. Richard Patilano, medico-legal officer, the cause
of death of Raquel Lopez was asphyxia by strangulation and multiple
physical injuries. The victim was already dead when the burning took place
because the body did not show any carbonization or black color.
On November 8, 1996, an order was issued stating, among other things, that
since the prosecution and the defense agreed that if witness Raymund Tan
(the father of the accuseds common-law wife) will be presented to testify
that his son-in-law (Fernando Morales) accompanied del Rosario in
surrendering to the police department of Subic, Zambales, the testimony of
the said witness was dispensed with.2
On April 2, 1997, a decision was rendered by the trial court convicting the
accused and imposing the following penalty:
"WHEREFORE, the Court finds the accused Donato del Rosario
guilty beyond reasonable doubt of the crime of Robbery with
Homicide and hereby sentences him to the maximum of Reclusion
Perpetua or from THIRTY-THREE (33) YEARS and FOUR (4)
MONTHS and ONE (1) DAY to FORTY YEARS, and to indemnify the
heirs of Raquel Lopez y Paragua the amount of ONE HUNDRED
THOUSAND PESOS (P100,000.00) and to pay the costs.
"SO ORDERED."3

When they arrived in the police station (Station A), he found his aunt and
some people in a room. When he sat down he was boxed by an unknown
man.
Thereafter, he was brought to Station B. He was forced to sign a document,
but not before being mauled with a rattan stick and a chair. While he was
being mauled he was forced to admit that he committed the arson.
From the "mayores" in the jail, he found out that the document he had signed
was a waiver.

Hence, this appeal where accused-appellant assigns the following errors

allegedly committed by the trial court:
"I
"IT IS ERRONEOUS AND ILLOGICAL FOR THE TRIAL COURT TO
CONVICT APPELLANT WHEN THE ELEMENTAL REQUISITES OF
THE SPECIAL COMPLEX CRIME OF ROBBERY WITH HOMICIDE
ARE NOT PRESENT.

312
"II
"THE COURT A QUO IS LIKEWISE IN ERROR IN HANDING DOWN
A CONVICTION ON A CIRCUMSTANTIAL EVIDENCE ABSENT ITS
REQUISITE ELEMENTS.
"III
"THE LOWER COURTS QUESTIONED DECISION OVERLOOKED
MATERIAL FACTS OF IMPORTANCE AND SUBSTANCE WHICH IF
CONSIDERED WOULD TILT THE SCALE OF LADY JUSTICE TO
ACQUIT THE APPELLANT."
The appeal is unmeritorious.
Accused-appellant Donato del Rosario contends that it is essential to prove
the intent to rob and that the intent to rob must come first before the killing
transpired. He is of the impression that not all the essential requisites of the
crime of robbery with homicide were proven.
We hold otherwise.
In the offense of robbery with homicide, a crime primarily classified as one
against property and not against persons, the prosecution has to firmly
establish the following elements: (a) the taking of personal property with the
use of violence or intimidation against a person; (b) the property thus taken
belongs to another; (c) the taking is characterized by intent to gain or animus
lucrandi; and (d) on the occasion of the robbery or by reason thereof, the
crime of homicide, which is therein used in a generic sense, was committed.4
Animus lucrandi, or intent to gain, is an internal act which can be established
through the overt acts of the offender.5 Although proof as to motive for the
crime is essential when the evidence of the theft is circumstantial, the intent
to gain or animus lucrandi is the usual motive to be presumed from all furtive
taking of useful property appertaining to another, unless special
circumstances reveal a different intent on the part of the perpetrator. "xxx
(T)he intent to gain may be presumed from the proven unlawful taking."6

Intent to gain (animus lucrandi) is presumed to be alleged in an information

where it is charged that there was unlawful taking (apoderamiento) and
appropriation by the offender of the things subject of the robbery.7
In this case, it was apparent that the reason why accused-appellant stole the
jewelry of Emelita Paragua was because he intended to gain by them. He
had already admitted that he needed money to marry his common-law wife.8
We take note of the places where the jewelry were recovered a pawnshop
in Olongapo City, and a stall of a second hand jewelry buyer in Iba.
Florencio Gamboa, the OIC/appraiser of the Lovely Kahael Pawnshop,
remembered giving the accused-appellant nine hundred pesos (P900.00) for
the two pieces of jewelry the latter had pawned, while Rogelio Adriano
admitted paying the accused the amount of One Thousand Five Hundred
Pesos (P1,500.00) for two jewelries.
If gaining through unlawful means was farthest from the mind of the accused,
why then did he pawn and sell the jewelry he had taken from Emelita
Paragua for a total amount of two thousand four hundred pesos
(P2,400.00)?
The accused vehemently denies having robbed the house of Emelita
Paragua. But the testimonies of Gamboa and the Adrianos that it was the
accused who pawned and sold, respectively, the jewelry to them shows that
the accused had in his possession the stolen jewelry. His failure to refute this
must be taken against him.
It is a rule established by an abundance of jurisprudence that when stolen
property is found in the possession of one, not the owner, without a
satisfactory explanation of his possession, he will be presumed to be the
thief. This rule is in accordance with the disputable presumption "that a
person found in possession of a thing taken in the doing of a recent wrongful
act is the taker and doer of the whole act."9
We conclude that accused-appellant went to the house of Emelita Paragua
because he intended to rob her. Lamentably, Paraguas niece, Raquel
Lopez, was in the way and she had to be dealt with in the direct manner
possible. And the means resorted to by the accused-appellant was to

313
strangle her until her very last breath. Raquel Lopez was killed on the
occasion of the robbery because she was the only one in the house at that
time and the only witness to the crime that accused-appellant committed.

After his surrender and the recovery of the jewelry, accused-appellant

executed a waiver and confession in the vernacular, in the presence of his
aunt and some persons whom he cannot identify.12 He was assisted by Atty.
dela Cruz. The waiver reads:

Her autopsy report revealed that she was already dead before the fire
started, thus eliminating any inference that arson was committed to finish her
off. The arson was but a ruse to cover up the theft.

"W A I V E R
"SA SINUMANG KINAUUKULAN:

It is immaterial whether the killing transpired before or after the robbery. In

the crime of robbery with homicide, the homicide may precede robbery or
may occur after robbery. What is essential is that there is a nexus, an
intimate connection between robbery and the killing whether the latter be
prior or subsequent to the former, or whether both crimes be committed at
the same time.10
Accused-appellant claims that his arrest was violative of his constitutional
rights and that all the evidence obtained thereat were fruits of the poisonous
tree and therefore inadmissible in any proceeding of whatever nature and for
any purpose. He alleged that he was mauled to force him to sign a
confession.
Contrary to accused-appellants allegation that he was arrested, we find that
he was not, and that he voluntarily surrendered to police officer Fernando
Morales of the Subic police.
In fact, his surrender was to be the gist of the testimony of Raymund Tan, the
father of his common-law wife, had he testified: that his son-in-law, Fernando
Morales, accompanied del Rosario in surrendering to the police department
of Subic, Zambales.11 (Emphasis supplied) We do not see why Raymund Tan
would not say that Morales accompanied del Rosario in surrendering to the
police if it was not the truth.
We, therefore, find that accused-appellant surrendered to the police
authorities, confessed to the crime, volunteered the information as to where
he pawned and sold the jewelry, and went with the Olongapo police willingly
to the Lovely Kahael Pawnshop and to the stall of the Adrianos and to the
police station in Olongapo. He admitted that he was not even handcuffed.

"AKO, DONATO DEL ROSARIO Y LACORTE, NASA HUSTONG

GULANG AT NAKATIRA SA NR. 1663 Balic-balic, Sta. Rita,
Olongapo City ay nagsasaad ng mga sumusunod:
"1. Na ako ay kusang sumuko sa Pulisya noong ika-02 ng
Oktubre 1992 dahil sa nakokonsensiya ako sa nagawa kong
pagpatay kay Raquel Lopez at pagnanakaw at pagsunog ko
sa bahay nila;
"2. Na sa dahilang ito ay pinawawalang bisa ko ang aking
mga karapatan na nakapaloob sa Art. 125 ng RPC at ako ay
pumapayag na pansamantalang magpakulong at pumailalim
sa pangangalaga ng mga pulis at para na rin makaharap ko
ang nagrereklamo sa akin.
"3. Na nilagdaan ko ang pawawalang bisa ko sa aking mga
karapatan bilang patotoo sa nilalaman nito.

(Sgd.) Donato del Rosario

Nagsasaad

Assisted by:
(Sgd.) ATTY. NORBERTO DELA CRUZ"13 (Italics supplied)
A confession to be admissible must be: (1) express and categorical; (2) given
voluntarily, and intelligently where the accused realizes the legal significance

314
of his act; (3) with assistance of competent and independent counsel; (4) in
writing, and in the language known to and understood by the confessant; and
(5) signed, or if the confessant does not know how to read and write,
thumbmarked by him.14
As officers of the court, lawyers have a responsibility to assist in the proper
administration of justice.15 As an officer of the court, he has in his favor the
presumption of regularity in the performance of his sworn duties and
responsibilities.16 Absent any showing that Atty. dela Cruz was remiss in his
duty, the confession of the accused-appellant is valid and binding upon him
and is thus admissible in evidence.
Assuming for the sake of argument that the extrajudicial admission is not
binding upon him, let it be stressed that he was positively identified by
Florencio Gamboa, the appraiser of Lovely Kahael Pawnshop, and by
Rogelio Adriano and his son, as the person who pawned and sold the
jewelry.
Both SPO1 Ramon Fernandez and Lt. Leonardo Esteban told the court that
the accused voluntarily led them to the place where he pawned and sold the
jewelry so that the jewelry could be recovered. If he was not the culprit, how
did he come to know where to lead the policemen in order to retrieve the
jewelry of Emelita Paragua?
Where there is nothing to indicate that a witness was actuated by improper
motives, his positive and categorical declarations on the witness stand under
solemn oath deserve full faith and credence.17
We find it incredible that he was mauled to force him to sign his confession,
let alone mauled.
Accused-appellant admitted knowing Fernando Morales of the Subic police
station. His relationship with the said police officer would make other police
officers be wary of him. They could not have dared maul him as del Rosario
would have sent word to Morales as to the fate he had suffered in the hands
of the Olongapo police.
The Olongapo police would have had a hands-off policy with regard to the
accused-appellant, as they would not have wanted any of their friends or

relatives to be mauled by the Subic police if they ever get arrested

there. Quid pro quo.
In addition, bare assertions of maltreatment by the police authorities in
extracting confessions from the accused are not sufficient in view of the
standing rule enunciated in cases of People vs. Mada-I Santalani;18 People
vs. Balane;19 and People vs. Villanueva,20 "that where the defendants did not
present evidence of compulsion, or duress nor violence on their person;
where they failed to complain to the officer who administered their oaths;
where they did not institute any criminal or administrative action against their
alleged intimidators for maltreatment; where there appeared to be no marks
of violence on their bodies; and where they did not have themselves
examined by a reputable physician to buttress their claim, all these were
considered by this Court as factors indicating voluntariness."21
The court a quo did not hand down a conviction based on circumstantial
evidence.
The accused-appellant voluntarily surrendered to the police and admitted his
guilt by way of the waiver/confession he had signed. Circumstantial evidence
had no place in this case.
Accused-appellant relied on alibi as a defense to belie the accusation
against him. However, nobody was presented to corroborate his statements
as to his whereabouts on the day when the robbery, homicide, and arson
took place, not even Rancen Anonat who was his companion on that day
and who was with him when the crimes occurred. Already a weak defense,
alibi becomes even weaker by reason of the failure of the defense to present
any corroboration.22
In the absence of showing that the factual findings of the trial judge were
reached arbitrarily or without sufficient basis, these findings are to be
received with respect by, and indeed are binding on, the Supreme Court.23
In every case, courts must specify the award for each item of damages and
make a finding thereon in the body of the decision.24 Prevailing jurisprudence
awards only P50,000.00 to the heirs of the victim without need of any
evidence other than the fact of the commission of the crime. The trial court
therefore erred in awarding P100,000.00 as indemnity.

315
WHEREFORE, IN VIEW OF THE FOREGOING, the conviction of appellant
is AFFIRMED, with the modification that the P100,000.00 awarded as
indemnity is reduced to P50,000.00 pursuant to the prevailing jurisprudence.

The Solicitor General for petitioner.

Jose Suarez, Romeo Capulong, Efren Mercado and Movement of Attorneys
for Brotherhood, Integrity, Nationalism, Inc. (MABINI) for Rodolfo Salas.

SO ORDERED.
Bellosillo (Chairman), Mendoza, Quisumbing, and De Leon, Jr., JJ., concur.
DAVIDE, JR., J.:
The People of the Philippines, through the Chief State Prosecutor of the
Department of Justice, the City Fiscal of Manila and the Judge Advocate
General, filed the instant petition for certiorari and prohibition, with a prayer
for restraining order/preliminary injunction, to set aside the order of
respondent Judge dated July 7, 1987 granting bail to the accused Rodolfo
Salas alias "Commander Bilog" in Criminal Case No. 86-48926 for
Rebellion,1 and the subsequent Order dated July 30, 1987 granting the
motion for reconsideration of 16 July 1987 by increasing the bail bond from
P30,000.00 to P50,000.00 but denying petitioner's supplemental motion for
reconsideration of July 17, 1987 which asked the court to allow petitioner to
present evidence in support of its prayer for a reconsideration of the order of
7 July 1987.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 79269

June 5, 1991

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HON. PROCORO J. DONATO, in his official capacity as Presiding
Judge, Regional Trial Court, Branch XII, Manila; RODOLFO C. SALAS,
alias Commander Bilog, respondents.

The pivotal issues presented before Us are whether the right to bail may,
under certain circumstances, be denied to a person who is charged with an
otherwise bailable offense, and whether such right may be waived.
The following are the antecedents of this petition:
In the original Information2 filed on 2 October 1986 in Criminal Case No. 8648926 of the Regional Trial Court of Manila, later amended in an Amended
Information3 which was filed on 24 October 1986, private respondent Rodolfo
Salas, alias "Commander Bilog", and his co-accused were charged for the
crime of rebellion under Article 134, in relation to Article 135, of the Revised
Penal Code allegedly committed as follows:
That in or about 1968 and for some time before said year and
continuously thereafter until the present time, in the City of Manila
and elsewhere in the Philippines, the Communist Party of the
Philippines, its military arm, the New People's Army, its mass

316
infiltration network, the National Democratic Front with its other
subordinate organizations and fronts, have, under the direction and
control of said organizations' leaders, among whom are the
aforenamed accused, and with the aid, participation or support of
members and followers whose whereabouts and identities are still
unknown, risen publicly and taken arms throughout the country
against the Government of the Republic of the Philippines for the
purpose of overthrowing the present Government, the seat of which
is in the City of Manila, or of removing from the allegiance to that
government and its laws, the country's territory or part of it;
That from 1970 to the present, the above-named accused in their
capacities as leaders of the aforenamed organizations, in conspiracy
with, and in support of the cause of, the organizations
aforementioned, engaged themselves in war against the forces of the
government, destroying property or committing serious violence, and
other acts in the pursuit of their unlawful purpose, such as . . .
(then follows the enumeration of specific acts committed before and
after February 1986).
At the time the Information was filed the private respondent and his coaccused were in military custody following their arrest on 29 September 1986
at the Philippine General Hospital, Taft Ave., Manila; he had earlier escaped
from military detention and a cash reward of P250,000.00 was offered for
his
capture.4
A day after the filing of the original information, or on 3 October 1986, a
petition for habeas corpus for private respondent and his co-accused was
filed with this Court5 which, as shall hereafter be discussed in detail, was
dismissed in Our resolution of 16 October 1986 on the basis of the
agreement of the parties under which herein private respondent "will remain
in legal custody and will face trial before the court having custody over his
person" and the warrants for the arrest of his co-accused are deemed
recalled and they shall be immediately released but shall submit themselves
to the court having jurisdiction over their person.

On November 7, 1986 , private respondent filed with the court below a

Motion to Quash the Information alleging that: (a) the facts alleged do not
constitute an offense; (b) the Court has no jurisdiction over the offense
charged; (c) the Court has no jurisdiction over the persons of the defendants;
and (d) the criminal action or liability has been extinguished,6 to which
petitioner filed an Opposition7 citing, among other grounds, the fact that in
the Joint Manifestation and Motion dated October 14, 1986, in G.R. No.
76009, private respondent categorically conceded that:
xxx

xxx

xxx

Par. 2 (B) Petitioner Rodolfo Salas will remain in legal custody and
face trial before the court having custody over his person.
In his Order of March 6, 1987,8 respondent Judge denied the motion to
quash.
Instead of asking for a reconsideration of said Order, private respondent filed
on 9 May 1987 a petition for bail,9which herein petitioner opposed in an
Opposition filed on 27 May 198710 on the ground that since rebellion became
a capital offense under the provisions of P.D. Nos. 1996, 942 and 1834,
which amended Article 135 of the Revised Penal Code, by imposing the
penalty of reclusion perpetua to death on those who promote, maintain, or
head a rebellion the accused is no longer entitled to bail as evidence of his
guilt is strong.
On 5 June 1987 the President issued Executive Order No. 187 repealing,
among others, P.D. Nos. 1996, 942 and 1834 and restoring to full force and
effect Article 135 of the Revised Penal Code as it existed before the
amendatory decrees. Thus, the original penalty for rebellion, prision
mayor and a fine not to exceed P20,000.00, was restored.
Executive Order No. 187 was published in the Official Gazette in its June 15,
1987 issue (Vol. 83, No. 24) which was officially released for circulation on
June 26, 1987.
In his Order of 7 July 198711 respondent Judge, taking into consideration
Executive Order No. 187, granted private respondent's petition for bail, fixed
the bail bond at P30,000.00 and imposed upon private respondent the

317
additional condition that he shall report to the court once every two (2)
months within the first ten (10) days of every period thereof. In granting the
petition respondent Judge stated:
. . . There is no more debate that with the effectivity of Executive
Order No. 187, the offense of rebellion, for which accused Rodolfo
Salas is herein charged, is now punishable with the penalty of prision
mayor and a fine not exceeding P20,000.00, which makes it now
bailable pursuant to Section 13, Article III, 1986 Constitution and
Section 3, Rule 114, 1985 Rules of Criminal Procedure. Unlike the
old rule, bail is now a matter of right in non-capital offenses before
final judgment. This is very evident upon a reading of Section 3, Rule
114, aforementioned, in relation to Section 21, same rule. In view,
therefore, of the present circumstances in this case, said accusedapplicant is now entitled to bail as a matter of right inasmuch as the
crime of rebellion ceased to be a capital offense.
As to the contention of herein petitioner that it would be dangerous to grant
bail to private respondent considering his stature in the CPP-NPA hierarchy,
whose ultimate and overriding goal is to wipe out all vestiges of our
democracy and to replace it with their ideology, and that his release would
allow his return to his organization to direct its armed struggle to topple the
government before whose courts he invokes his constitutional right to bail,
respondent Judge replied:
True, there now appears a clash between the accused's
constitutional right to bail in a non-capital offense, which right is
guaranteed in the Bill of Rights and, to quote again the prosecution,
"the existence of the government that bestows the right, the
paramount interest of the state." Suffice to state that the Bill of Rights,
one of which is the right to bail, is a "declaration of the rights of the
individual, civil, political and social and economic, guaranteed by the
Constitution against impairment or intrusion by any form of
governmental action. Emphasis is placed on the dignity of man and
the worth of individual. There is recognition of certain inherent and
inalienable rights of the individual, which the government is prohibited
from violating" (Quisumbing-Fernando, Philippine Constitutional Law,
1984 Edition, p. 77). To this Court, in case of such conflict as now
pictured by the prosecution, the same should be resolved in favor of

the individual who, in the eyes of the law, is alone in the assertion of
his rights under the Bill of Rights as against the State. Anyway, the
government is that powerful and strong, having the resources,
manpower and the wherewithals to fight those "who oppose,
threathen (sic) and destroy a just and orderly society and its existing
civil and political institutions." The prosecution's fear may or may not
be founded that the accused may later on jump bail and rejoin his
comrades in the field to sow further disorders and anarchy against
the duly constituted authorities. But, then, such a fear can not be a
reason to deny him bail. For the law is very explicit that when it
comes to bailable offenses an accused is entitled as a matter of light
to bail.Dura est lex sed lex.
In a motion to reconsider12 the above order filed on 16 July 1987, petitioner
asked the court to increase the bail from P30,000.00 to P100,000.00 alleging
therein that per Department of Justice Circular No. 10 dated 3 July 1987, the
bail for the, provisional release of an accused should be in an amount
computed at P10,000.00 per year of imprisonment based on the medium
penalty imposable for the offense and explaining that it is recommending
P100,000.00 because the private respondent "had in the past escaped from
the custody of the military authorities and the offense for which he is charged
is not an ordinary crime, like murder, homicide or robbery, where after the
commission, the perpetrator has achieved his end" and that "the rebellious
acts are not consummated until the well-organized plan to overthrow the
government through armed struggle and replace it with an alien system
based on a foreign ideology is attained."
On 17 July 1987, petitioner filed a supplemental motion for
reconsideration13 indirectly asking the court to deny bail to the private
respondent and to allow it to present evidence in support thereof considering
the "inevitable probability that the accused will not comply with this main
condition of his bail to appear in court for trial," a conclusion it claims to
be buttressed "by the following facts which are widely known by the People
of the Philippines and which this Honorable Court may have judicial notice
of:
1. The accused has evaded the authorities for thirteen years and was
an escapee from detention when arrested;

318
2. He was not arrested at his residence as he had no known address;
3. He was using the false name "Manuel Mercado Castro" at the time
of his arrest and presented a Driver's License to substantiate his
false identity;
4. The address he gave "Panamitan, Kawit, Cavite," turned out to be
also a false address;
5. He and his companions were on board a private vehicle with a
declared owner whose identity and address were also found to be
false;
6. Pursuant to Ministry Order No. 1-A dated 11 January 1982 , a
reward of P250,000.00 was offered and paid for his arrest,
which "clearly indicate that the accused does not entertain the slightest
intention to appear in court for trial, if released." Petitioner further argues that
the accused, who is the Chairman of the Communist Party of the Philippines
and head of its military arm, the NPA, together with his followers, are now
engaged in an open warfare and rebellion against this government and
threatens the existence of this very Court from which he now seeks
provisional release," and that while he is entitled to bail as a matter of right in
view of Executive Order No. 187 which restored the original penalty for
rebellion under Article 135 of the Revised Penal Code, yet, when the interest
of the State conflicts with that of an individual, that of the former prevails for
"the right of the State of self-preservation is paramount to any of the rights of
an individual enshrined in the Bill of Rights of the Constitution." Petitioner
further invokes precedents in the United States of America holding "that
there is no absolute constitutional barrier to detention of potentially
dangerous resident aliens pending deportation proceedings,14 and that an
arrestee may be incarcerated until trial as he presents a risk of flight;15 and
sustaining a detention prior to trial of arrestee charged with serious felonies
who are found after an adversary hearing to pose threat to the safety of
individuals and to the community which no condition of release can dispel.16
On 30 July 1987 respondent Judge handed down the Order17 adverted to in
the introductory portion of this decision the dispositive portion of which reads:

WHEREFORE, in the light of the foregoing considerations, the Court

finds the "supplemental" motion for reconsideration to be without
merit and hereby denies it but finds the first motion for
reconsideration to be meritorious only insofar as the amount of bail is
concerned and hereby reconsiders its Order of July 7, 1987 only to
increase the amount of bail from P30,000.00 to P50,000.00, subject
to the approval of this Court, and with the additional condition that
accused Rodolfo Salas shall report to the court once every two (2)
months within the first ten (10) days of every period thereof
(Almendras vs. Villaluz, et al., L-31665, August 6, 1975, 66 SCRA
58).
In denying the supplemental motion for reconsideration the respondent
Judge took into account the "sudden turn-about" on the part of the petitioner
in that a day earlier it filed a motion for reconsideration wherein it conceded
the right of the private respondent to bail but merely asked to increase the
amount of bail; observed that it is only a reiteration of arguments in its
opposition to the petition for bail of 25 May 1987; asserted that the American
precedents are not applicable since the cases involved deportation of aliens
and, moreover, the U.S. Federal Constitution does not contain a proviso on
the right of an accused to bail in bailable offenses, but only an injunction
against excessive bail; and quoted the concurring opinion of the late Justice
Pedro Tuason in the cases of Nava, et al. vs. Gatmaitan, L-4853, Hernandez
vs. Montesa, L-4964 and Angeles vs. Abaya, L-5108, October 11, 1951, 90
Phil, 172.
Unable to agree with said Order, petitioner commenced this petition
submitting therein the following issues:
THE HONORABLE RESPONDENT JUDGE PROCORO J. DONATO
ACTED WITH GRAVE ABUSE OF DISCRETION AND IN EXCESS
OF HIS JURISDICTION, AND IN TOTAL DISREGARD OF THE
PREVAILING REALITIES, WHEN HE DENIED PETITIONER'S
SUPPLEMENTAL MOTION FOR RECONSIDERATION WITH
PRAYER TO BE GIVEN THE OPPORTUNITY TO ADDUCE
EVIDENCE IN SUPPORT OF ITS OPPOSITION TO THE GRANT OF
BAIL TO THE RESPONDENT RODOLFO SALAS.

319
THE HONORABLE RESPONDENT JUDGE PROCORO J. DONATO
ACTED WITH GRAVE ABUSE OF DISCRETION AND IN EXCESS
OF HIS JURISDICTION WHEN HE GRANTED BAIL TO THE
RESPONDENT RODOLFO SALAS.
in support of which petitioner argues that private respondent is estopped
from invoking his right to bail, having expressly waived it in G.R. No. 76009
when he agreed to "remain in legal custody and face trial before the court
having custody of his person" in consideration of the recall of the warrant of
arrest for his co-petitioners Josefina Cruz and Jose Concepcion; and the
right to bail, even in non-capital offenses, is not absolute when there is prima
facie evidence that the accused is a serious threat to the very existence of
the State, in which case the prosecution must be allowed to present
evidence for the denial of bail. Consequently, respondent Judge acted with
grave abuse of discretion when he did not allow petitioner to present all the
evidence it may desire to support its prayer for the denial of bail and when he
declared that the State has forfeited its right to do so since during all the time
that the petition for bail was pending, it never manifested, much less hinted,
its intention to adduce such evidence. And that even if release on bail may
be allowed, respondent judge, in fixing the amount of bail at P50,000.00
(originally P30,000.00 only), failed to take into account the lengthy record of
private respondents' criminal background, the gravity of the pending charge,
and the likelihood of flight.18
In Our resolution of 11 August 198719 We required the respondents to
comment on the petition and issued a Temporary Restraining Order ordering
respondent Judge to cease and desist from implementing his order of 30
July 1987 granting bail to private respondent in the amount of P50,000.00.
In his Comment filed on 27 August 1987,20 private respondent asks for the
outright dismissal of the petition and immediate lifting of the temporary
restraining order on the following grounds:
I
RESPONDENT SALAS NEVER WAIVED HIS RIGHT TO BAIL;
NEITHER IS HE ESTOPPED FROM ASSERTING SAID RIGHT. ON
THE CONTRARY IT IS PETITIONER WHO IS ESTOPPED FROM
RAISING THE SAID ISSUE FOR THE FIRST TIME ON APPEAL.

II
RESPONDENT SALAS ENJOYS NOT ONLY THE
CONSTITUTIONAL RIGHT TO BE PRESUMED INNOCENT BUT
ALSO THE RIGHT TO BAIL.
III
RESPONDENT SALAS IS NOT CHARGED WITH A CAPITAL
OFFENSE (RECLUSION PERPETUA), HENCE HE HAS THE
RIGHT TO BAIL AS MANDATED BY THE CONSTITUTION.
IV
THE ORDER OF JULY 30, 1987 DENYING PETITIONER
OPPORTUNITY TO PRESENT EVIDENCE IS CORRECT.
PETITIONER'S ALLEGED RIGHT TO PRESENT EVIDENCE IS
NON-EXISTENT AND/OR HAD BEEN WAIVED.
V
THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER IN
THIS CASE VIOLATES NOT ONLY RESPONDENT SALAS' RIGHT
TO BAIL BUT ALSO HIS OTHER CONSTITUTIONAL RIGHT TO
DUE PROCESS.
We required the petitioner to reply to the comment of private
respondent.21 The reply was filed on 18 September 1987.22
In Our resolution of 15 October 198723 We gave due course to the petition
and required the parties to file simultaneously their memoranda within twenty
days from notice.
In their respective manifestations and motions dated 5 November24 and 23
November 198725 petitioner and private respondents asked to be excused
from filing their Memoranda and that the petition and reply be considered as
the Memorandum for petitioner and the Comment as the Memorandum for

320
private respondent, which We granted in Our resolution of 19 November
198726 and 1 December 1987,27 respectively.
In Our resolution of 14 September 1989 We required the Solicitor General to
express his stand on the issues raised in this petitions,28 which he complied
with by filing his Manifestation on 30 May 199029 wherein he manifests that
he supports the petition and submits that the Order of respondent Judge of
July 7, July 17 and July 30, 1987 should be annulled and set aside asserting
that private respondent had waived the light to bail in view of the agreement
in G.R. No. 76009; that granting bail to him is accepting wide-eyed his
undertaking which he is sure to break; in determining bail, the primary
consideration is to insure the attendance of the accused at the trial of the
case against him which would be frustrated by the "almost certainty that
respondent Salas will lump bail of whatever amount"; and application of the
guidelines provided for in Section 10 of Rule 114, 1985 Rules on Criminal
Procedure on the amount of bail dictates denial of bail to private respondent.
The Solicitor General likewise maintains that the right of the petitioner to
hearing on the application of private respondent for bail cannot be denied by
respondent Judge.
And now on the issues presented in this case.
I.
Unquestionably, at the time the original and the amended Informations for
rebellion and the application for bail were filed before the court below the
penalty imposable for the offense for which the private respondent was
charged was reclusion perpetua to death. During the pendency of the
application for bail Executive Order No. 187 was issued by the President, by
virtue of which the penalty for rebellion as originally provided for in Article
135 of the Revised Penal Code was restored. The restored law was the
governing law at the time the respondent court resolved the petition for bail.
We agree with the respondent court that bail cannot be denied to the private
respondent for he is charged with the crime of rebellion as defined in Article
134 of the Revised Penal Code to which is attached the penalty ofprision
mayor and a fine not exceeding P20,000.00.30 It is, therefore, a bailable
offense under Section 13 of Article III of the 1987 Constitution which provides
thus:

Sec. 13. All persons, except those charged with offenses punishable
by reclusion perpetua when evidence of guilt is strong, shall, before
conviction, be bailable by sufficient sureties, or be released on
recognizance as may be prescribed by law. The right to bail shall not
be impaired even when the privilege of the writ ofhabeas corpus is
suspended. Excessive bail shall not be required.
Section 3, Rule 114 of the Rules of Court, as amended, also provides:
Bail, a matter of right: exception. All persons in custody shall,
before final conviction, be entitled to bail as a matter of right, except
those charged with a capital offense or an offense which, under the
law at the time of its commission and at the time of the application for
bail, is punishable by reclusion perpetua, when evidence of guilt is
strong.
Therefore, before conviction bail is either a matter of right or of discretion. It
is a matter of right when the offense charged is punishable by any penalty
lower than reclusion perpetua.31 To that extent the right is absolute.32
And so, in a similar case for rebellion, People vs. Hernandez, et al., 99 Phil.
515, despite the fact that the accused was already convicted, although
erroneously, by the trial court for the complex crime of rebellion with multiple
murders, arsons and robberies, and sentenced to life imprisonment, We
granted bail in the amount of P30,000.00 during the pendency of his appeal
from such conviction. To the vigorous stand of the People that We must deny
bail to the accused because the security of the State so requires, and
because the judgment of conviction appealed from indicates that the
evidence of guilt of Hernandez is strong, We held:
. . . Furthermore, individual freedom is too basic, too transcendental
and vital in a republican state, like ours, to be derived upon mere
general principles and abstract consideration of public safety. Indeed,
the preservation of liberty is such a major preoccupation of our
political system that, not satisfied with guaranteeing its enjoyment in
the very first paragraph of section (1) of the Bill of Rights, the framers
of our Constitution devoted paragraphs (3), (4), (5), (6), (7), (8), (11),
(12), (13), (14), (15), (16), (17), (18), and (21) of said section (1) to
the protection of several aspects of freedom.

321
The 1987 Constitution strengthens further the right to bail by explicitly
providing that it shall not be impaired even when the privilege of the writ
of habeas corpus is suspended. This overturns the Court's ruling in GarciaPadilla vs. Enrile, et al., supra., to wit:
The suspension of the privilege of the writ of habeas corpus must,
indeed, carry with it the suspension of the right to bail, if the
government's campaign to suppress the rebellion is to be enhanced
and rendered effective. If the right to bail may be demanded during
the continuance of the rebellion, and those arrested, captured and
detained in the course thereof will be released, they would, without
the least doubt, rejoin their comrades in the field thereby jeopardizing
the success of government efforts to bring to an end the invasion,
rebellion or insurrection.
Upon the other hand, if the offense charged is punishable by reclusion
perpetua bail becomes a matter of discretion. It shall be denied if the
evidence of guilt is strong. The court's discretion is limited to determining
whether or not evidence of guilt is strong.33 But once it is determined that the
evidence of guilt is not strong, bail also becomes a matter of right.
In Teehankee vs. Director of Prisons, supra., We held:
The provision on bail in our Constitution is patterned after similar
provisions contained in the Constitution of the United States and that
of many states of the Union. And it is said that:
The Constitution of the United States and the constitution of
the many states provide that all persons shall be bailable by
sufficient sureties, except for capital offenses, where the proof
is evident or the presumption of guilt is great, and, under such
provisions, bail is a matter of right which no court or judge can
properly refuse, in all cases not embraced in the exceptions.
Under such provisions bail is a matter of right even in cases
of capital offenses, unless the proof of guilt is evident or the
presumption thereof is great!34
Accordingly, the prosecution does not have the right to present
evidence for the denial of bail in the instances where bail is a matter
of right. However, in the cases where the grant of bail is discretionary,

due process requires that the prosecution must be given an

opportunity to present, within a reasonable time, all the evidence that
it may desire to introduce before the court should resolve the motion
for bail.35
We agree, however, with petitioner that it was error for the
respondent court to fix the bond at P30,000.00, then later at
P50,000.00 without hearing the prosecution. The guidelines for the
fixing of the amount of bail provided for in Section 10 of Rule 114 of
the Rules of Court are not matters left entirely to the discretion of the
court. As We stated in People vs. Dacudao, et al., 170 SCRA, 489,
495:
Certain guidelines in the fixing of a bailbond call for the
presentation of evidence and reasonable opportunity for the
prosecution to refute it. Among them are the nature and
circumstances of the crime, character and reputation of the
accused, the weight of the evidence against him, the
probability of the accused appearing at the trial, whether or
not the accused is a fugitive from justice, and whether or not
the accused is under bond in other case. . . .
In the instant case petitioner has sufficiently made out allegations
which necessitate a grant of an opportunity to be heard for the
purpose of determining the amount of bail, but not for the denial
thereof because aforesaid Section 10 of Rule 114 does not authorize
any court to deny bail.
II.
It must, however, be stressed that under the present state of the law,
rebellion is no longer punishable byprision mayor and fine not
exceeding P20,000.00. Republic Act No. 6968 approved on 24
October 1990 and which took effect after publication in at least two
newspapers of general circulation, amended, among others, Article
135 of the Revised Penal Code by increasing the penalty for rebellion
such that, as amended, it now reads:

322
Article 135. Penalty for rebellion, insurrection or coup d'etat.
Any person who promotes, maintains, or heads a
rebellion or insurrection shall suffer the penalty of reclusion
perpetua.
Any person merely participating or executing the commands
of others in a rebellion or insurrection shall suffer the penalty
of reclusion perpetua.
xxx

xxx

xxx

This amendatory law cannot apply to the private respondent for acts
allegedly committed prior to its effectivity. It is not favorable to him.
"Penal laws shall have a retroactive effect insofar as they favor the
person guilty of a felony, who is not a habitual criminal, as this term is
defined in Rule 5 of Article 62 of this Code, although at the time of the
publication of such laws a final sentence has been pronounced and
the convict is serving the same.36
III.
We agree with Petitioner that private respondent has, however,
waived his right to bail in G.R. No. 76009.
On 3 October 1986, or the day following the filing of the original
information in Criminal Case No. 86-48926 with the trial court, a
petition for habeas corpus for herein private respondent, and his coaccused Josefina Cruz and Jose Concepcion, was filed with this
Court by Lucia Cruz, Aida Concepcion Paniza and Beatriz Salas
against Juan Ponce Enrile, Gen. Fidel Ramos, Brig. Gen. Renato de
Villa, Brig. Gen. Ramon Montao, and Col. Saldajeno praying, among
others, that the petition be given due course and a writ ofhabeas
corpus be issued requiring respondents to produce the bodies of
herein private respondent and his co-accused before the Court and
explain by what authority they arrested and detained them. The
following proceedings took place thereafter in said case:
1. In a resolution of 7 October 1986 We issued a writ of habeas
corpus, required respondents to make a return of the writ on or

before the close of office hours on 13 October and set the petition for
hearing on 14 October 1986 at 10:00 o'clock in the morning.
2. On 13 October 1986 respondents, through the Office of the
Solicitor General, filed a Return To The Writ of Habeas
Corpus alleging therein that private respondent and Josefina
Cruz alias "Mrs. Mercado", and Jose Milo Concepcion alias "Eugene
Zamora" were apprehended by the military on September 29, 1986 in
the evening at the Philippine General Hospital Compound at Taft
Ave., Mangga being leaders or members of the Communist Party of
the Philippines, New People's Army and National Democratic Front,
organizations dedicated to the overthrow of the Government through
violent means, and having actually committed acts of rebellion under
Article 134 of the Revised Penal Code, as amended. After their arrest
they were forthwith charged with rebellion before Branch XII of the
Regional Trial Court, National Capital Region in Criminal Case No.
86-48926 and on 3 October warrants for their arrest were issued and
respondents continue to detain them because of the warrants of
arrest and the pendency of the criminal cases against them.
Respondents further allege that, contrary to the allegation in the
petition, herein private respondent was not a member of the NDF
panel involved in peace negotiations with the Government; neither is
he and his companions Cruz and Concepcion covered by any, safe
conduct pass issued by competent authorities.
3. At the hearing on 14 October 1986 the parties informed the Court
of certain agreements reached between them. We issued a resolution
reading as follows:
When this case was called for hearing this morning, Attorneys
Romeo Capulong, Arno V. Sanidad, Efren H. Mercado,
Edgardo Pamin-tuan, Casiano Sabile, Ramon Cura, and
William Chua appeared for the petitioners with Atty. Capulong
arguing for the petitioners. Solicitor General Sedfrey Ordonez,
Assistant Solicitor General Romeo C. de la Cruz and Trial
Attorney Josue E. Villanueva appeared for the respondents,
with Solicitor General Ordoez arguing for the respondents.

323
Petitioners' counsel, Atty. Romeo Capulong, manifested in
open Court that in conformity with the agreement reached
with the government, the petition for habeas corpus will be
withdrawn with detainee Rodolfo Salas to remain under
custody, whereas his co-detainees Josefina Cruz and Jose
Milo Concepcion will be released immediately.
Solicitor General Sedfrey Ordoez, also in open Court,
confirmed the foregoing statement made by petitioners'
counsel regarding the withdrawal of the petition for habeas
corpus, declaring that no objection will be interposed to the
immediate release of detainees Josefina Cruz and Jose Milo
Concepcion, and that no bond will be required of them, but
they will continue to face trial with their co-accused, Rodolfo
Salas; further, that they will not be rearrested on the basis of
the warrants issued by the trial court provided that they
manifest in open Court their willingness to subject themselves
to the jurisdiction of the Court and to appear in court when
their presence is required.
In addition, he stated that he is willing to confer with
petitioners' counsel today relative to the compromise
agreement that they have previously undertaken to submit.
Upon manifestation of petitioners' counsel, Atty. Romeo
Capulong, that on his oath as member of the Bar, the
detainees Josefina Cruz and Jose Milo Concepcion have
agreed to subject themselves to the jurisdiction of the trial
court, the Court ordered their immediate release.
Thereafter, the Court approved the foregoing manifestations
and statements and required both parties to SUBMIT to the
Court their compromise agreement by 4:00 o'clock this
afternoon. Teehankee, C.J., is on official leave.
4. At 3:49 o'clock in the afternoon of 14 October 1986 the parties
submitted a Joint Manifestation and Motion duly signed by Atty.
Romeo Capulong, counsel for petitioners, and Solicitor General
Sedfrey Ordoez, Assistant Solicitor General Romeo C. de la Cruz

and Trial Attorney Josue S. Villanueva, counsel for respondents,

which reads as follows:
COME NOW petitioners and the respondents, assisted by
their respective counsel, and to this Honorable Tribunal
respectfully manifest:
1. That in the discussion between Romeo Capulong,
petitioners' counsel, and Solicitor General Sedfrey A. Ordoez
on October 13, 1986 exploratory talks were conducted to find
out how the majesty of the law may be preserved and human
considerations may be called into play.
2. That in the conference both counsel agreed to the following
terms of agreement:
a. The petition for habeas corpus will be withdrawn by
petitioners and Josefina Cruz and Jose Milo
Concepcion will be immediately released but shall
appear at the trial of the criminal case for rebellion
(People v. Rodolfo Salas, et al., Criminal Case No.
4886 [should be 86-48926], Regional Trial Court,
National Capital Judicial Region) filed against them
under their personal recognizance.
b. Petitioner Rodolfo Salas will remain in legal custody
and face trial before the court having custody over his
person.
c. The warrant of arrest for the persons of Josefina
Cruz and Jose Milo Concepcion is hereby deemed
recalled in view of formal manifestation before the
Supreme Court that they will submit themselves to the
court having jurisdiction over their person.
3. That on October 14, the Solicitor General was able to
obtain the conformity of the Government to the foregoing
terms which were likewise accepted by petitioner (sic) and
their counsel of record.

324
4. That the two counsel submitted their oral manifestation
during the hearing on October 14 and the present
manifestation in compliance with the resolution announced in
court this morning.
WHEREFORE, it is prayed that the petition for habeas
corpus be dismissed.
5. On 16 October 1986 We issued the following resolution:
G.R. No. 76009 [In the Matter of the Petition for Habeas
Corpus of Rodolfo Salas, Josefina Cruz and Jose Milo
Concepcion, et al. v. Hon. Juan Ponce Enrile, Gen. Fidel V.
Ramos, Brig. Gen. Renato de Villa, Brig. Gen. Ramon
Montao and Col. Virgilio Saldajeno] considering the Joint
Manifestation and Motion dated October 14, 1986 filed by
Attorneys Romeo Capulong, Arno V. Sanidad, Efren H.
Mercado and Ricardo Fernandez, Jr. as counsel for
petitioners and Solicitor General Sedfrey A. Ordonez and
Assistant Solicitor General Romeo C. de la Cruz and Trial
Attorney Josue S. Villanueva as counsel for respondents
which states that they have entered into an agreement
whereby: [a] the petition for habeas corpus will be withdrawn
by petitioners, and Josefina Cruz and Jose Milo Concepcion
will be immediately released but shall appear at the trial of the
criminal case for rebellion [People vs. Rodolfo Salas, et al.,
Criminal Case No. 4886, Regional Trial Court, National
Capital Judicial Region, Branch XII, Manila], filed against
them, on their personal recognizance; [b] petitioner Rodolfo
Salas will remain in legal custody and face trial before the
court having custody over his person; and [c] the warrant of
arrest for the person of Josefina Cruz and Jose Milo
Concepcion is hereby deemed recalled in view of the formal
manifestation before this Court that they will submit
themselves to the court having jurisdiction over their person
and in view of the said agreement, the petition for habeas
corpus be dismissed, the Court Resolved to DISMISS the
petition for habeas corpus but subject to the condition that
petitioners' lead counsel, Atty. Capulong, upon his oath as

member of the Bar, shall abide by his commitment to ensure

the appearance of Josefina Cruz and Jose Milo Concepcion
at the trial of the criminal case for rebellion filed against them.
Teehankee,C.J., is on official leave.
It is the stand of the petitioner that private respondent, "in agreeing to remain
in legal custody even during the pendency of the trial of his criminal case,
[he] has expressly waived his right to bail."37 Upon the other hand, private
respondent asserts that this claim is totally devoid of factual and legal basis,
for in their petition for habeas corpus they precisely questioned the legality of
the arrest and the continued detention of Rodolfo Salas, Josefina Cruz and
Jose Milo Concepcion, which was not resolved by this Court or by the
compromise agreement of the parties but left open for further determination
in another proceeding. Moreover, the matter of the right to bail was neither
raised by either party nor resolved by this Court, and the legal steps promptly
taken by private respondent after the agreement was reached, like the filing
of the motion to quash on 7 November 1986 and the petition for bail on 14
May 1987, were clear and positive assertions of his statutory and
constitutional rights to be granted not only provisional but final and
permanent liberty. Finally, private respondent maintains that the term "legal
custody" as used in the Joint Manifestation and Motion simply means that
private respondent agreed to continue to be in the custody of the law or
in custodia legis and nothing else; it is not to be interpreted as waiver.
Interestingly, private respondent admits that:
"Custody" has been held to mean nothing less than actual
imprisonment. It is also defined as the detainer of a person by virtue
of a lawful authority, or the "care and possession of a thing or
person." (Bouviers Law Dictionary, Third Ed, Vol. I, pp. 741742 citing Smith v. Com. 59 Pa. 320 and Rolland v. Com. 82 Pa. 306)
He further admits that, in the light of Section 1 of Rule 114 of the Rules of
Court and settled jurisprudence, the "constitutional right to bail is subject to
the limitation that the person applying for admission to bail should be in the
custody of the law or otherwise deprived of his liberty."38
When the parties in G.R. No. 76009 stipulated that:

325
b. Petitioner Rodolfo Salas will remain in legal custody and face trial
before the court having custody over his person.

But, is such waiver valid?

Article 6 of the Civil Code expressly provides:

they simply meant that Rodolfo Salas, herein respondent, will remain in
actual physical custody of the court, or in actual confinement or detention, as
distinguished from the stipulation concerning his co-petitioners, who were to
be released in view of the recall of the warrants of arrest against them; they
agreed, however, "to submit themselves to the court having jurisdiction over
their persons." Note should be made of the deliberate care of the parties in
making a fine distinction between legal custody and court having custody
over the person in respect to Rodolfo Salas and court having jurisdiction
over the persons of his co-accused. Such a fine distinction was precisely
intended to emphasize the agreement that Rodolfo Salas will not be
released, but should remain in custody. Had the parties intended otherwise,
or had this been unclear to private respondent and his counsel, they should
have insisted on the use of a clearer language. It must be remembered that
at the time the parties orally manifested before this Court on 14 October
1986 the terms and conditions of their agreement and prepared and signed
the Joint Manifestation and Motion, a warrant of arrest had already been
issued by the trial court against private respondent and his co-accused. The
stipulation that only the warrants of arrest for Josefina Cruz and Jose Milo
Concepcion shall be recalled and that only they shall be released, further
confirmed the agreement that herein petitioner shall remain in custody of the
law, or detention or confinement.
In defining bail as:
. . . the security given for the release of a person in custody of the
law, . . .
Section 1 of Rule 114 of the Revised Rules of Court admits no other
meaning or interpretation for the term "in custody of the law" than that as
above indicated. The purpose of bail is to relieve an accused from
imprisonment until his conviction and yet secure his appearance at the
trial.39 It presupposes that the person applying for it should be in the custody
of the law or otherwise deprived of liberty.40
Consequently, having agreed in G.R. No. 76009 to remain in legal custody,
private respondent had unequivocably waived his right to bail.

Art. 6. Rights may be waived, unless the waiver is contrary to law,

public order, public policy, morals, or good customs, or prejudicial to a
third person with a right recognized by law.
Waiver is defined as "a voluntary and intentional relinquishment or
abandonment of a known existing legal right, advantage, benefit, claim or
privilege, which except for such waiver the party would have enjoyed; the
voluntary abandonment or surrender, by a capable person, of a right known
by him to exist, with the intent that such right shall be surrendered and such
person forever deprived of its benefit; or such conduct as warrants an
inference of the relinquishment of such right; or the intentional doing of an
act inconsistent with claiming it."41
As to what rights and privileges may be waived, the authority is settled:
. . . the doctrine of waiver extends to rights and privileges of any
character, and, since the word "waiver" covers every conceivable
right, it is the general rule that a person may waive any matter which
affects his property, and any alienable right or privilege of which he is
the owner or which belongs to him or to which he is legally entitled,
whether secured by contract, conferred with statute, or guaranteed
by constitution,provided such rights and privileges rest in the
individual, are intended for his sole benefit, do not infringe on the
rights of others, and further provided the waiver of the right or
privilege is not forbidden by law, and does not contravene public
policy; and the principle is recognized that everyone has a right to
waive, and agree to waive, the advantage of a law or rule made
solely for the benefit and protection of the individual in his private
capacity, if it can be dispensed with and relinquished without
infringing on any public right, and without detriment to the community
at large. . . .
Although the general rule is that any right or privilege conferred by
statute or guaranteed by constitutionmay be waived, a waiver in
derogation of a statutory right is not favored, and a waiver will be

326
inoperative and void if it infringes on the rights of others, or would be
against public policy or morals and the public interest may be waived.
While it has been stated generally that all personal rights conferred
by statute and guaranteed by constitution may be waived, it has also
been said that constitutional provisions intended to protect property
may be waived, and even some of the constitutional rights created to
secure personal liberty are subjects of waiver.42
In Commonwealth vs. Petrillo,43 it was held:
Rights guaranteed to one accused of a crime fall naturally into two
classes: (a) those in which the state, as well as the accused, is
interested; and (b) those which are personal to the accused, which
are in the nature of personal privileges. Those of the first class
cannot be waived; those of the second may be.
It is "competent for a person to waive a right guaranteed by the Constitution,
and to consent to action which would be invalid if taken against his will."44
This Court has recognized waivers of constitutional rights such as, for
example, the right against unreasonable searches and seizures;45 the right to
counsel and to remain silent;46 and the right to be heard.47
Even the 1987 Constitution expressly recognizes a waiver of rights
guaranteed by its Bill of Rights.1wphi1 Section 12(l) of Article III thereof on
the right to remain silent and to have a competent and independent counsel,
preferably of his own choice states:
. . . These rights cannot be waived except in writing and in the
presence of counsel.
This provision merely particularizes the form and manner of the waiver; it,
nevertheless, clearly suggests that the other rights may be waived in some
other form or manner provided such waiver will not offend Article 6 of the
Civil Code.
We hereby rule that the right to bail is another of the constitutional rights
which can be waived. It is a right which is personal to the accused and

whose waiver would not be contrary to law, public order, public policy,
morals, or good customs, or prejudicial to a third person with a right
recognized by law.
The respondent Judge then clearly acted with grave abuse of discretion in
granting bail to the private respondent.
WHEREFORE, the Orders of respondent Judge of July 7, 1987 and July 30,
1987 in Criminal Case No. 86-48926 entitled People of the Philippines vs.
Rodolfo C. Salas alias Commander Bilog/Henry, Josefina Cruz alias Mrs.
Mercado, and Jose Milo Concepcion alias Eugene Zamora, for Rebellion,
are hereby NULLIFIED and SET ASIDE.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras,
Feliciano, Gancayco, Padilla, Bidin, Grio-Aquino, Medialdea and Regalado,
JJ., concur.
Sarmiento, J., took no part.

327

REGALADO, J.:
The adverse decision in this case promulgated by respondent Court
of Appeals in CA-G.R. SP No. 32233 on November 24, 1993, as well
as its resolution of April 26, 1994 denying the motion for
reconsideration thereof, are challenged by petitioner Miguel P.
Paderanga in this appeal by certiorari through a petition which raises
issues centering mainly on said petitioner's right to be admitted to
bail.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 115407 August 28, 1995

MIGUEL P. PADERANGA, petitioner,
vs.
COURT OF APPEALS and PEOPLE OF THE
PHILIPPINES, respondents.

On January 28, 1990, petitioner was belatedly charged in an

amended information as a co-conspirator in the crime of multiple
murder in Criminal Case No. 86-39 of the Regional Trial Court,
Branch 18 of Cagayan de Oro City for the killing of members of the
Bucag family sometime in 1984 in Gingoog City of which petitioner
was the mayor at the time. The original information, filed on October
6, 1986 with the Regional Trial Court of Gingoog City, 1 had initially
indicted for multiple murder eight accused suspect, namely, Felipe
Galarion, Manuel Sabit, Cesar Sabit, Julito Ampo, Eddie Torion, John
Doe, Peter Doe And Richard Doe as the alleged conspirators in the
indiscriminate slaying of the spouses Romeo and Juliet Bucag and
their son, Romeo, Jr. However, only one of the accused, Felipe
Galarion, was apprehended, tried and eventually convicted. Galarion
later escaped from prison. The others have remained at large up to
the present. 2
In a bizarre twist of events, one Felizardo ("Ely") Roxas was
implicated in the crime. In an amended information dated October 6,
1988, he was charged as a co-accused therein. As herein petitioner
was his former employer and thus knew him well, Roxas engaged the
former's services as counsel in said case. Ironically, in the course of
the preliminary investigation therein, said accused, in a signed
affidavit dated March 30, 1989 but which he later retracted on June
20, 1990, implicated petitioner as the supposed mastermind behind
the massacre of the Bucag family. 3

328
Then, upon the inhibition of the City Prosecutor of Cagayan de Oro
City from the case per his resolution of July 7, 1989, the Department
of Justice, at the instance of said prosecutor, designated a
replacement, State Prosecutor Henrick F. Gingoyon, for purposes of
both the preliminary investigation and prosecution of Criminal Case
No. 86-39. Pursuant to a resolution of the new prosecutor dated
September 6, 1989, petitioner was finally charged as a co-conspirator
in said criminal case in a second amended information dated October
6, 1992. Petitioner assailed his inclusion therein as a co-accused all
the way to this Court in G.R. No. 96080 entitled "Atty. Miguel P.
Paderanga vs. Hon. Franklin M. Drilon, Hon. Silvestre H. Bello III,
Atty. Henrick F. Gingoyon, Helen B. Canoy and Rebecca B. Tan." In
an en banc decision promulgated on April 19, 1991, the Court
sustained the filing of the second amended information against him. 4
Under this backdrop, the trial of the base was all set to start with the
issuance of an arrest warrant for petitioner's apprehension but,
before it could be served on him, petitioner through counsel, filed on
October 28, 1992 a motion for admission to bail with the trial court
which set the same for hearing on November 5, 1992. Petitioner duly
furnished copies of the motion to State Prosecutor Henrick F.
Gingoyon, the Regional State Prosecutor's Office, and the private
prosecutor, Atty. Benjamin Guimong. On November 5, 1992, the trial
court proceeded to hear the application for bail. Four of petitioner's
counsel appeared in court but only Assistant Prosecutor Erlindo
Abejo of the Regional State Prosecution's Office appeared for the
prosecution.5
As petitioner was then confined at the Cagayan Capitol College
General Hospital due to "acute costochondritis," his counsel
manifested that they were submitting custody over the person of their
client to the local chapter president of the integrated Bar of the
Philippines and that, for purposes of said hearing of his bail
application, he considered being in the custody of the law. Prosecutor
Abejo, on the other hand, informed the trial court that in accordance
with the directive of the chief of their office, Regional State prosecutor
Jesus Zozobrado, the prosecution was neither supporting nor
opposing the application for bail and that they were submitting the
same to the sound discretion of the trail judge. 6

Upon further inquiries from the trial court, Prosecutor Abejo

announced that he was waiving any further presentation of evidence.
On that note and in a resolution dated November 5, 1992, the trial
court admitted petitioner to bail in the amount of P200,000.00. The
following day, November 6, 1992, petitioner, apparently still weak but
well enough to travel by then, managed to personally appear before
the clerk of court of the trial court and posted bail in the amount thus
fixed. He was thereafter arraigned and in the trial that ensued, he
also personally appeared and attended all the scheduled court
hearings of the case. 7
The subsequent motion for reconsideration of said resolution filed twenty
(20) days later on November 26, 1992 by Prosecutor Gingoyon who
allegedly received his copy of the petition for admission to bail on the day
after the hearing, was denied by the trial court in its omnibus order dated
March 29, 1993. On October 1, 1993, or more than six (6) months later,
Prosecutor Gingoyon elevated the matter to respondent Court of Appeals
through a special civil action for certiorari. Thus were the resolution and the
order of the trial court granting bail to petitioner annulled on November 24,
1993, in the decision now under review, on the ground that they were tainted
with grave abuse of discretion. 8
Respondent court observed in its decision that at the time of
petitioner's application for bail, he was not yet "in the custody of the
law," apparently because he filed his motion for admission to bail
before he was actually arrested or had voluntarily surrendered. It
further noted that apart from the circumstance that petitioner was
charged with a crime punishable by reclusion perpetua, the evidence
of guilt was strong as borne out by the fact that no bail was
recommended by the prosecution, for which reasons it held that the
grant of bail was doubly improvident. Lastly, the prosecution,
according to respondent court, was not afforded an opportunity to
oppose petitioner's application for bail contrary to the requirements of
due process. Hence, this appeal.
Petitioner argues that, in accordance with the ruling of this Court
in Santiago vs. Vasquez etc., et al., 9 his filing of the aforesaid
application for bail with the trial court effectively conferred on the
latter jurisdiction over his person. In short, for all intents and

329
purposes, he was in the custody of the law. In petitioner's words, the
"invocation by the accused of the court's jurisdiction by filing a
pleading in court is sufficient to vest the court with jurisdiction over
the person of the accused and bring him within the custody of the
law."
Petitioner goes on to contend that the evidence on record negates
the existence of such strong evidence as would bar his provisional
release on bail. Furthermore, the prosecution, by reason of the
waiver by Prosecutor Abejo of any further presentation of evidence to
oppose the application for bail and whose representation in court in
behalf of the prosecution bound the latter, cannot legally assert any
claim to a denial of procedural due process. Finally, petitioner points
out that the special civil action for certiorari was filed in respondent
court after an unjustifiable length of time.
On the undisputed facts , the legal principles applicable and the
equities involved in this case, the Court finds for petitioner.
1. Section 1 of Rule 114, as amended, defines bail as the security
given for the release of a person in custody of the law, furnished by
him or a bondsman, conditioned upon his appearing before any court
as required under the conditions specified in said Rule. Its main
purpose, then, is to relieve an accused from the rigors of
imprisonment until his conviction and yet secure his appearance at
the trial. 10 As bail is intended to obtain or secure one's provisional
liberty, the same cannot be posted before custody over him has been
acquired by the judicial authorities, either by his lawful arrest or
voluntary surrender. 11 As this Court has put it in a case "it would be
incongruous to grant bail to one who is free." 12
The rationale behind the rule is that it discourages and prevents
resort to the former pernicious practice whereby an accused could
just send another in his stead to post his bail, without recognizing the
jurisdiction of the court by his personal appearance therein and
compliance with the requirements therefor. 13 Thus, inFeliciano
vs. Pasicolan, etc., et al., 14 where the petitioner who had been
charged with kidnapping with murder went into hiding without
surrendering himself, and shortly thereafter filed a motion asking the

court to fix the amount of the bail bond for his release pending trial,
the Supreme Court categorically pronounced that said petitioner was
not eligible for admission to bail.
As a paramount requisite then, only those persons who have either
been arrested, detained, or other wise deprived of their freedom will
ever have occasion to seek the protective mantle extended by the
right to bail. The person seeking his provisional release under the
auspices of bail need not even wait for a formal complaint or
information to be filed against him as it is available to "all
persons" 15 where the offense is bailable. The rule is, of course,
subject to the condition or limitation that the applicant is in the
custody of the law. 16
On the other hand, a person is considered to be in the custody of the
law (a) when he is arrested either by virtue of a warrant of arrest
issued pursuant to Section 6, Rule 112, or by warrantless arrest
under Section 5, Rule 113 in relation to Section 7, Rule 112 of the
revised Rules on Criminal Procedure, or (b) when he has voluntarily
submitted himself to the jurisdiction of the court by surrendering to
the proper authorities. 17in this light, the ruling, vis-a-vis the facts
in Santiago vs. Vasquez, etc., et al., 18 should be explained.
In said case, the petitioner who was charged before the
Sandiganbayan for violation of the Anti-Graft and Corrupt Practices
Act, filed through counsel what purported to be an "Urgent Exparte Motion for Acceptance of Cash Bail Bond." Said petitioner was
at the time confined in a hospital recuperating from serious physical
injuries which she sustained in a major vehicular mishap.
Consequently, she expressly sought leave "that she be considered as
having placed herself under the jurisdiction of (the Sandiganbayan)
for purposes of the required trial and other proceedings." On the
basis of said ex-partemotion and the peculiar circumstances
obtaining in that incident, the Sandiganbayan authorized petitioner to
post a cash bail bond for her provisional liberty without need of her
personal appearance in view of her physical incapacity and as a
matter of humane consideration.

330
When the Sandiganbayan later issued a hold departure order against
her, she question the jurisdiction of that court over her person in a
recourse before this Court, on the ground that "she neither been
arrested nor has she voluntarily surrendered, aside from the fact that
she has not validly posted bail since she never personally appeared
before said court" In rejecting her arguments, the Court held that she
was clearly estopped from assailing the jurisdiction of the
Sandiganbayan for by her own representations in the urgentex
parte motion for bail she had earlier recognized such jurisdiction.
Furthermore, by actually posting a cash bail was accepted by the
court, she had effectively submitted to its jurisdiction over her person.
Nonetheless, on the matter of bail, the Court took pains to reiterate
that the same cannot be posted before custody of the accused has
been acquired by the judicial authorities either by his arrest or
voluntary surrender.
In the case of herein petitioner, it may be conceded that he had
indeed filed his motion for admission to bail before he was actually
and physically placed under arrest. He may, however, at that point
and in the factual ambience therefore, be considered as being
constructively and legally under custody. Thus in the likewise peculiar
circumstance which attended the filing of his bail application with the
trail court, for purposes of the hearing thereof he should be deemed
to have voluntarily submitted his person to the custody of the law
and, necessarily, to the jurisdiction of the trial court which thereafter
granted bail as prayed for. In fact, an arrest is made either by actual
restraint of the arrestee or merely by his submission to the custody of
the person making the arrest. 19 The latter mode may be exemplified
by the so-called "house arrest" or, in case of military offenders, by
being "confined to quarters" or restricted to the military camp area.
It should be stressed herein that petitioner, through his counsel,
emphatically made it known to the prosecution and to the trail court
during the hearing for bail that he could not personally appear as he
was then confined at the nearby Cagayan Capitol College General
Hospital for acute costochondritis, and could not then obtain medical
clearance to leave the hospital. The prosecution and the trial court,
notwithstanding their explicit knowledge of the specific whereabouts
of petitioner, never lifted a finger to have the arrest warrant duly

served upon him. Certainly, it would have taken but the slightest effort
to place petitioner in the physical custody of the authorities, since he
was then incapacitated and under medication in a hospital bed just
over a kilometer away, by simply ordering his confinement or placing
him under guard.
The undeniable fact is that petitioner was by then in the constructive
custody of the law. Apparently, both the trial court and the
prosecutors agreed on that point since they never attempted to have
him physically restrained. Through his lawyers, he expressly
submitted to physical and legal control over his person, firstly, by
filing the application for bail with the trail court; secondly, by
furnishing true information of his actual whereabouts; and, more
importantly, by unequivocally recognizing the jurisdiction of the said
court. Moreover, when it came to his knowledge that a warrant for his
arrest had been issued, petitioner never made any attempt or evinced
any intent to evade the clutches of the law or concealed his
whereabouts from the authorities since the day he was charged in
court, up to the submission application for bail, and until the day of
the hearing thereof.
At the hearing, his counsel offered proof of his actual confinement at
the hospital on account of an acute ailment, which facts were not at
all contested as they were easily verifiable. And, as a manifestation of
his good faith and of his actual recognition of the authority of trial
court, petitioner's counsel readily informed the court that they were
surrendering custody of petitioner to the president of the Integrated
Bar of the Philippines, Misamis Oriental Chapter. 20 In other words,
the motion for admission to bail was filed not for the purpose or in the
manner of the former practice which the law proscribes for the being
derogatory of the authority and jurisdiction of the courts, as what had
happened in Feliciano. There was here no intent or strategy
employed to obtain bail in absentia and thereby be able to avoid
arrest should the application therefore be denied.
2. Section 13, Article III of the Constitution lays down the rule that before
conviction, all indictees shall be allowed bail, except only those charged with
offenses punishable by reclusion perpetua when the evidence of guilt is
strong. In pursuance thereof, Section 4 of Rule 114, as amended, now

331
provides that all persons in custody shall, before conviction by a regional trial
court of an offense not punishable by death, reclusion perpetua or life
imprisonment, be admitted to bail as a matter of right. The right to bail, which
may be waived considering its personal nature 21 and which, to repeat, arises
from the time one is placed in the custody of the law, springs from the
presumption of innocence accorded every accused upon whom should not
be inflicted incarceration at the outset since after trial he would be entitled to
acquittal, unless his guilt be established beyond reasonable doubt. 22
Thus, the general rule is that prior to conviction by the regional trial court of a
criminal offense, an accused is entitled to be released on bail as a matter of
right, the present exceptions thereto being the instances where the accused
is charged with a capital offense or an offense punishable by reclusion
perpetua or life imprisonment 23and the evidence of guilt is strong. Under said
general rule, upon proper application for admission to bail, the court having
custody of the accused should, as a matter of course, grant the same after a
hearing conducted to specifically determine the conditions of the bail in
accordance with Section 6 (now, Section 2) of Rule 114. On the other hand,
as the grant of bail becomes a matter of judicial discretion on the part of the
court under the exceptions to the rule, a hearing, mandatory in nature and
which should be summary or otherwise in the discretion of the court, 24 is
required with the participation of both the defense and a duly notified
representative of the prosecution, this time to ascertain whether or not the
evidence of guilt is strong for the provisional liberty of the applicant. 25 Of
course, the burden of proof is on the prosecution to show that the evidence
meets the required quantum. 26
Where such a hearing is set upon proper motion or petition, the prosecution
must be give an opportunity to present, within a reasonable time, all the
evidence that it may want to introduce before the court may resolve the
application, since it is equally entitled as the accused to due process. 27 If the
prosecution is denied this opportunity, there would be a denial of procedural
due process, as a consequence of which the court's order in respect of the
motion or petition is void. 28 At the hearing, the petitioner can rightfully crossexamine the witnesses presented by the prosecution and introduce his own
evidence in rebuttal. 29 When, eventually, the court issues an order either
granting or refusing bail, the same should contain a summary of the
evidence for the prosecution, followed by its conclusion as to whether or not
the evidence of guilt is strong. 30 The court, though, cannot rely on mere

affidavits or recitals of their contents, if timely objected to, for these represent
only hearsay evidence, and thus are insufficient to establish the quantum of
evidence that the law requires. 31
In this appeal, the prosecution assails what it considers to be a violation of
procedural due process when the court below allowed Assistant Prosecutor
Erlindo Abejo of the Regional State Prosecutor's Office to appear in behalf of
the prosecution, instead of State Prosecutor Henrick P. Gingoyon who is
claimed to be the sole government prosecutor expressly authorized to
handle the case and who received his copy of the motion only on the day
after the hearing had been conducted. Accordingly, the prosecution now
insists that Prosecutor Abejo had no authority at all to waive the presentation
of any further evidence in opposition to the application for bail and to submit
the matter to the sound discretion of the trial court. In addition, they argue
that the prosecution was not afforded "reasonable time" to oppose that
application for bail.
We disagree. Firstly, it is undisputed that the Office of the Regional State
Prosecutor acted as the collaborating counsel, with State Prosecutor Henrick
Gingoyon, in Criminal Case No. 86-39 on the basis of an authority from then
Chief State Prosecutor Fernando de Leon which was sent through radio
message on July 10, 1992 and duly received by the Office of the Regional
State Prosecutor on the same date. This authorization, which was to be
continuing until and unless it was expressly withdrawn, was later confirmed
and then withdrawn only on July 12, 1993 by then Secretary of Justice
Franklin M. Drilon. This was done after one Rebecca Bucag-tan questioned
the authority of Regional State Prosecutor Jesus Zozobrado and State
Prosecutor II Erlindo Abejo to enter their appearance as collaborating
government prosecutors in said criminal case. 32 It was in fact by virtue of this
arrangement that the same Prosecutor Zozobrado and Prosecutor
Perseverando Arana entered their appearance as collaborating prosecutor in
the previous hearing in said case. 33 Hence, on the strength of said authority
and of its receipt of the notice of the hearing for bail, the Regional State
Prosecutor's Office, through Prosecutor Abejo, could validly represent the
prosecution in the hearing held on November 5, 1992.
Secondly, although it is now claimed that Prosecutor Abejo was
allegedly not familiar with the case, he nonetheless was explicitly
instructed about the position of the Regional State Prosecutor's Office

332
on the matter. Prosecutor Zozobrado, whose office received its copy
of the motion on the very day when it was sent, that is, October 28,
1992, duly instructed Prosecutor Abejo to manifest to the court that
the prosecution was neither supporting nor opposing the application
for bail and that they were submitting the matter to its sound
discretion. Obviously, what this meant was that the prosecution, at
that particular posture of the case, was waiving the presentation of
any countervailing evidence. When the court a quosought to
ascertain whether or not that was the real import of the submission by
Prosecutor Abejo, the latter readily answered in the affirmative.

Yes, Your Honor. For the government, the Regional State Prosecutor's Office
represented by State Prosecutor Erlindo Abejo.

The following exchanges bear this out:

I am amenable to that manifestation, Your Honor.

COURT:
By that manifestation do you want the Court to understand that in effect, at
least, the prosecution is dispensing with the presentation of evidence to
show that the guilt of the accused is strong, the denial . . .
PROSECUTOR ABEJO:

PROSECUTOR ERLINDO ABEJO:

COURT:

I was informed to appear in this case just now Your Honor.

Final inquiry. Is the Prosecution willing to submit the incident covered by this
particular motion for resolution by this court?

COURT:
Where is your Chief of Office? Your office received a copy of the motion as
early as October 28. There is an element of urgency here.

PROSECUTOR ABEJO:
Yes, Your Honor.

PROSECUTOR ABEJO:

COURT:

I am not aware of that, Your Honor, I was only informed just now. The one
assigned here is State Prosecutor Perseverando Arena, Jr. who
unfortunately is in the hospital attending to his sick son. I do not know about
this but before I came I received an instruction from our Chief to relay to this
court the stand of the office regarding the motion to admit bail. That office is
neither supporting nor opposing it and we are submitting to the sound
discretion of the Honorable Court.

Without presenting any further evidence?

COURT:
Place that manifestation on record. For the record, Fiscal Abejo, would you
like to formally enter your appearance in this matter?
PROSECUTOR ABEJO:

PROSECUTOR ABEJO:
Yes, Your Honor. 34
It is further evident from the foregoing that the prosecution, on the
instructions of Regional State prosecutor Zozobrado, had no intention at all
to oppose the motion for bail and this should be so notwithstanding the
statement that they were "neither supporting nor opposing" the motion. What
is of significance is the manifestation that the prosecution was "submitting
(the motion) to the sound discretion of the Honorable Court." By that, it could
not be any clearer. The prosecution was dispensing with the introduction of
evidence en contra and this it did at the proper forum and stage of the

333
proceedings, that is, during the mandatory hearing for bail and after the trial
court had fully satisfied itself that such was the position of the prosecution.
3. In Herras Teehankee vs. Director of Prisons, 35 it was stressed that where
the trial court has reasons to believe that the prosecutor's attitude of not
opposing the application for bail is not justified, as when he is evidently
committing a gross error or a dereliction of duty, the court, in the interest of
Justice, must inquire from the prosecutor concerned as the nature of his
evidence to determine whether or not it is strong. And, in the very recent
administrative matter Re: First Indorsement Dated July 21, 1992 of
Hon. Fernando de Leon, Chief State Prosecutor, Department of
Justice; Alicia A. Baylon, City Prosecutor of Dagupan City vs. Judge
Deodoro Sison, 36 the Court, citing Tucay vs. Domagas, etc., 37 held that
where the prosecutor interposes no objection to the motion of the accused,
the trial court should nevertheless set the application for hearing and from
there diligently ascertain from the prosecution whether the latter is really not
contesting the bail application.
No irregularity, in the context of procedural due process, could therefore be
attributed to the trial court here as regards its order granting bail to petitioner.
A review of the transcript of the stenographic notes pertinent to its resolution
of November 5, 1992 and the omnibus order of March 29, 1993 abundantly
reveals scrupulous adherence to procedural rules. As summarized in its
aforementioned order, the lower court exhausted all means to convince itself
of the propriety of the waiver of evidence on the part of the prosecution.
Moreover, the omnibus order contained the requisite summary of the
evidence of both the prosecution and the defense, and only after sifting
through them did the court conclude that petitioner could be provisionally
released on bail. Parenthetically, there is no showing that, since then and up
to the present, petitioner has ever committed any violation of the conditions
of his bail.

adduce in that hearing in opposition to the motion. Certainly, under the

circumstances, that period was more than reasonable. The fact that
Prosecutor Gingoyon received his copy of the application only on November
6, 1992 is beside the point for, as already established, the Office of the
Regional State Prosecutor was authorized to appear for the People.
4. What finally militates against the cause of the prosecutor is the indubitably
unreasonable period of time that elapsed before it questioned before the
respondent court the resolution and the omnibus order of the trial court
through a special civil action for certiorari. The Solicitor General submits that
the delay of more than six (6) months, or one hundred eighty-four (184) days
to be exact, was reasonable due to the attendant difficulties which
characterized the prosecution of the criminal case against petitioner. But
then, the certiorari proceeding was initiated before the respondent court long
after trial on the merits of the case had ensued in the court below with the
active participation of prosecution lawyers, including Prosecutor Gingoyon.
At any rate, the definitive rule now in that the special civil action
for certiorari should not be instituted beyond a period of the three
months, 38 the same to be reckoned by taking into account the duration of
time that had expired from the commission of the acts complained to annul
the same. 39
ACCORDINGLY, the judgment of respondent Court of Appeals in CA-G.R.
SP No. 32233, promulgated on November 24, 1993, annulling the resolution
dated November 5, 1992 and the omnibus order dated March 29, 1993 of the
Regional Trial Court of Cagayan de Oro City, as well as said respondent
court's resolution of April 26, 1994 denying the motion for reconsideration of
said judgment, are hereby REVERSED and SET ASIDE. The aforesaid
resolution and omnibus order of the Regional Trail Court granting bail to
petitioner Miguel P. Paderanga are hereby REINSTATED.
SO ORDERED.

As to the contention that the prosecutor was not given the opportunity to
present its evidence within a reasonable period of time, we hold otherwise.
The records indicate that the Regional State Prosecutor's Office duly
received its copy of the application for bail on the very same day that the it
was filed with the trial court on October 28, 1992. Counted from said date up
to the day of the hearing on November 5, 1992, the prosecution had more
than one (1) week to muster such evidence as it would have wanted to

Narvasa, C.J., Puno, Mendoza and Francisco, JJ., concur.

334
This Court repeats: men who rape children, worse, their own daughters,
are filthier than the slime where they belong. Whatever punishment is
imposed on them can never expiate their loathsome offense, for which
forgiveness itself from a mortal court, at least, would be a sin.[1]
There is no fathoming the deluge of rape cases, often involving children,
that has swamped the Court. But this particular case is by far, the most
bizarre. Not just one but three young girls have been leftprecipitately
stigmatized by the bestial violence perpetrated on them by their own
father. The very person who should have protected them with his life,
destroyed theirs. What strikes this Court as extremely perverse is that he
spared no one, not even his daughter of the tenderest age of 5.
Accused-appellant Rodrigo Calma was charged with two (2) counts of
Rape under Art. 335 of the Revised Penal Code, as amended by Sec. 11 of
Republic Act No. 7659, and one (1) count of Acts of Lasciviousness under
Art. 336 of the Revised Penal Code in relation to Sec. 5(b) of Art. III of
Republic Act No. 7610[2], before the Regional Trial Court, 3rd Judicial Region,
Malolos Bulacan, Branch 14[3] in the following three (3) separate
Informations:
In Crim. Case No. 752-M-96, for Rape:

EN BANC

[G.R. No. 127126. September 17, 1998]

People of the Philippines, plaintiff-appellee, vs. Rodrigo Calma y

Sacdalan, accused-appellant.
DECISION

The undersigned upon the prior sworn complaint of the offended party,
fourteen (14) year old minor Annalyn Calma, accuses RODRIGO CALMA Y
SACDALAN of Rape, defined and penalized under Art. 335 of the Revised
Penal Code as amended by Sec. 11 of Republic Act [No.] 7659, committed
as follows:
That in between the period May 1995 to March 8, 1996, in Marilao, Bulacan
and within the jurisdiction of this Honorable Court, the above-named
accused, being the biological father of the offended party Annalyn Calma,
with lewd designs and by means of threat and violence by arming himself
with bladed weapon, did then and there willfully, unlawfully and feloniously lie
and had sexual intercourse with private complainant Annalyn Calma against
her will and consent.
CONTRARY TO LAW.[4]

PER CURIAM:
In Crim. Case No. 752-M-96, also for Rape:

335
The undersigned upon the prior sworn complaint of the offended party, ten
(10) year old minor Roselyn Calma, assisted by her mother Myrna Calma y
Ignacio, accuses RODRIGO CALMA Y SACDALAN of Rape, defined and
penalized under Art. 335 of the Revised Penal Code as amended by Sec. 11
of Republic Act [No.] 7659, committed as follows:

finger into the sex organ of his youngest daughter, Irene, born on June 29,
1991[9]

That in between the period May 1995 to March 8, 1996, in Marilao, Bulacan
and within the jurisdiction of this Honorable Court, the above-named
accused, being the biological father of the offended party Roselyn Calma,
with lewd designs, did then and there willfully, unlawfully and feloniously lie
and had sexual intercourse with private complainant Roselyn Calma against
her will and consent.

Annalyn on the witness stand:

[5]

CONTRARY TO LAW.

In Crim. Case no. 754-M-96, for Acts of Lasciviousness:

The undersigned upon the prior sworn complaint of Myrna Calma y Ignacio
in behalf of her Four (4) year old daughter Irene Calma, the offended party,
accuses RODRIGO CALMA Y SACDALAN of ACTS OF LASCIVIOUSNESS
defined and penalized under Art. 336 of the Revised Penal Code, in relation
to Section 5 (b), Art. III of Republic Act [No.] 7610, committed as follows:
That in between the period May 1995 to March 8, 1996, in Marilao, Bulacan
and with the jurisdiction of this Honorable Court, the above-named accused,
by taking advantage of his natural daughter, Four (4) year old Irene Calma,
did then and there wilfully, unlawfully and feloniously with lewd designs,
touched the private parts of the above-stated offended party.
CONTRARY TO LAW.[6]
Accused-appellant pleaded not guilty to the charges.
On May 31, 1996, the three cases were jointly tried upon motion of the
prosecution.
The evidence of the prosecution established that between May 1995
and March 8, 1996, accused-appellant forced himself on his two daughters,
namely, Annalyn and Roselyn, born on July 11, 1981 [7]and December 28,
1985[8], respectively. During the same period, accused-appellant inserted his

At ages 15, 11 and 5 years, Annalyn, Roselyn, and Irene, respectively,

testified thus:

A. One day by the middle of May, 1995, my father arrived home drank
[sic] and he forced me to undress myself while carrying an icepick.
xxx
Q. But can you tell us the time?
A. It was already night time, madam.
xxx
Q. And where did this incident happened [sic]?
A. In our bedroom, madam.
xxx
Q. When you said that your father removed your panty and your short[s]
and your father was only wearing his short[s] at that time, what did
your father do to you if any?
A. He asked me to lie down on the bed, madam.
Q. And when you laid down on the bed, what happened next?
A. He approached me pointing the icepick towards me, sir.
xxx
Q. And then when he approached you, what happened next?
A. He started to kiss me on the different parts of my body, madam.
Q. Specifically what part of your body did he kiss first?
A. My vagina, madam.
"x x x

336
Q. Did you not resist or cry or ask him the reason why he was doing that
to you?
A. I asked him, madam.

A. I can no longer recall, madam.

xxx

Q. And what was his answer?

Q. Now, when you were left alone with your father, do you recall what
happened if any?

A. None, madam.

A. Yes, madam.

xxx

xxx

Q. And after your father kissed your whole body, your breast and
including your vagina that was all he did to you?

A. First he look [sic] our main door and then he ordered me to get inside
our bedroom, madam.

A. On that particular day, yes madam on that day only.

Q. After he instructed you to get inside your bedroom, what happened

next?

xxx
Q. After that first incident, you did not tell anyone or anybody your mother
and brother and your sister what your father did to you?

A. He ordered me or instructed me to undress myself, madam.

Q. Did you actually remove your clothes?

A. I did not, sir.

A. Yes, madam because I was frightened then.

Q. Why?

Q. How about your father, what happened to his clothes then?

A. Because at the very start, he had already threatened us and he told us

that he would kill our mother in our presence, madam.

A. He likewise removed his short pants, madam.

Q. So, both of you were totally naked?

Q. And after that first incident in the middle of May, 1995, this act was
never repeated again?

A. Yes, madam.

A. It was repeated again, madam.

Q. After you were both totally naked, did [sic] you kindly tell us what
happened next?

Q. How many times?

A. For many more times, madam.
xxx
A. After a week time [sic] or something like that in as much as he seem[s]
not to be satisfied he inserted his sex organ [in]to mine, madam.

A. He instructed me to lie down on [the] bed, madam.

Q. After you laid down on [the] bed, what happened next?
A. He placed himself on top of me, madam.
Q. And when he laid on top of you, do you recall what

Q. Can you recall the first time your father inserted his penis inside your
private parts?

happened next?

A. No more, madam.

Q. What was that?

Q. You can not recall the exact date?

A. He was making a push and pull motion, madam.

A. Yes, madam.

337
xxx
Q. When you say that he was likewise making this push up motion, did
you notice anything else?
A. He inserted his penis on [sic] my vagina, madam.
Q. How do you know it was his penis that was inserted on [sic] your
vagina?
A. Because I saw it, madam.
Q. When he inserted his penis inside your vagina, what did you feel?

Q. Would you kindly describe to us what you saw coming out from his
penis?
A. A sticky substance, madam.
Q. Why do you know that this sticky substance came out from the penis of
your father?
A. Because he was showing that to me, madam. He even told me that
that substance was the one introducing [sic] baby, madam.
xxx

A. I cried because it was painful, madam.

Q. And after this first sexual abuse committed by your father on you, you
never relayed this incident to anyone?

Q. Did you resist or fought [sic] back to [sic] what your father was doing to
you?

A. Yes, madam I did not.

xxx

Q. Why was this?

Q. What did you do if any?

A. As I have stated a while ago, he was threatening us. He was

threatening me and he further stated that that will include my mother
and even my other sister and brother, madam.

A. I cried and cried and when I was struggling to free myself, he pointed
again the icepick on [sic] me, madam.

Q. You stated earlier that this sexual abuse was repeatedly done by your
father?

Q. And can you tell us for how long did this push up movements [which]
your father was doing while his penis was inserted in your vagina
lasted [sic]?

A. Yes, madam.

SP BALAWAG:

A. For less than five (5) minutes, madam.

Q. After that what happened?
A. He stood up and seated himself on top of the bed, madam.
Q. What did you see when your father suddenly stood [sic] up and sit on
top of the bed?
xxx
A. He took hold and played with his sex organ or penis, madam.
Q. After playing [with] his sex organ, what happened next?
A. Something came out of his penis, madam.

xxx
A. When my mother was not yet around whenever he likes it.
xxx
Q. During the time that you have or you were repeatedly raped or your
father have [sic] sexual intercourse with you, will you kindly tell us the
positions your father did?
A. Sometimes I am lying on my back. Sometimes I am on my side that is
all.
xxx
SP BALAWAG:

338
Q. In all those instances that you were repeatedly abused by your father
notwithstanding the return of your mother, you never told anyone
what was [sic] your father was doing to you?
A. I did not, madam.
Q. Why?
A. Because I am afraid of his threat and I love very much my family.
xxx
Q. Now, madam witness, do you recall the last time when your father
sexually abused you?
A. Yes, madam.
Q. When was that?
A. March 3, Sunday in the morning 1996, madam.
Q. In other words, madam witness since the middle of May, 1995, up to
March 3, 1996, this sexual abuse committed by your father lasted up
to one (1) year?
A. Yes, madam.[10]

xxx
Q. Now, when your father or the accused led you in the living room of
your house alone and you were alone with him, can you recall what
happened, if any?
A. First, he instructed me to remove my shorts but I didnt want and what
he did is that he pointed an ice pick to [sic] me, madam.
xxx
Q. When you refused at first to remove your shorts and then the accused
pointed an ice pick at you, can you recall what happened next?
A. It was he who removed my shorts, madam.
Q. In what particular part of your body was the ice pick pointed?
A. On my neck, madam. x x x
Q. After your father removed your shorts, what happened next, if any?
A. He brought out his sex organ from his short, he lifted up one of my feet
and make [sic] me lie down on my back and he placed himself on top
of me, madam.
Q. What part of your leg was raised at that time?

Roselyn on the witness stand:

A. My right leg, madam.

Q. Can you tell us, Madam Witness, what grade were you in and how old
were you at the time you were first sexually molested by your father?

Q. In other words, while you were lying down, the accused lifted your right
leg and then he went on top of you?

A. I was then in Grade 2 and I was only 8 years old then, madam.

A. Yes, madam.

xxx
Q. In other words, Madam Witness, the first time you were sexually
abused by your father, you were left alone with him?
A. Yes, madam.
Q. And you also mentioned earlier that you were first sexually abused by
your father in your living room, can you tell us who brought you there
in the living room?
A. It was he, madam.

xxx
PROS. BALAUAG:
Q. What happened next after your father laid on top of you?
A. He was actually making a push and full [sic] motions [sic] (kinakabayo).
xxx
PROS. BALAUAG:

339
Q. Now, after your father went on top of you, what did he do next, if any
and made [sic] that kinakabayo?
A. He pulled out his sex organ and then played with it, madam.
Q. Where did he pulled [sic] out his sex organ?
A. From my sex organ, madam.
Q. In other words, madam Witness, your father inserted his sex organ or
penis in your vagina?
A. Yes, madam.
Q. Can you tell what you felt at that time while the penis of your father
was inserted in your vagina?
A. It was painful, madam.
Q. Did you not tell him about it?
A. I told him about that, madam.
Q. What was his responds [sic]?
A. None, madam.
xxx
Q. After your father pulled out his sex organ or his penis, can you recall
what happened next or what did he do with it, if any?
A. After my father had pulled out his sex organ from my sex organ he
played with it and something whity [sic] substance came out, madam.
Q. Did you actually see that whity [sic] substance coming out from your
fathers penis?
A. Yes, madam, because he was then in front of me.
xxx

A. I am afraid, madam, because he told me that if I do so, he would kill my

mother.
xxx
Q. Now, the second time you were sexually abused by your father, can
you tell us where did it happen?
A. In the same hut, madam.
Q. In what particular portion of the house?
A. Also, in the living room, madam.
xxx
Q. Now, you mentioned earlier that the second time you were sexually
abused by your father, it happened in the living room, can you tell us
what your father did to you at that time?
A. The same as in the first occasion, he instructed me to remove my
clothes, madam.
Q. In other words, madam witness, what you are trying to say to us right
now was that the second time you were sexually abused by your
father, it was like the first incident when you were sexually abused?
A. Yes, madam.
xxx
A. The same as in the first occasion when I was abused by my father. He
first brought out his sex organ from his shorts and then allowed me to
lie down on my back, then raised my right leg and then he inserted
his sex organ to [six] my sex organ, madam.
xxx
Q. When was that, the last time you were sexually abused by your father?

Q. Now, did you not tell anyone of what had happened to you?

A. March 8, 1996, madam, because after that date it was then the
birthday of my father.

A. I did not, madam.

Q. In other words, the birthday of the accused is March 9.

Q. Why not, madam witness?

A. Yes, madam.

340
xxx
A. I was about to place my bag inside that bedroom and I have to change
clothes while my father followed me inside.
Q. Madam Witness, where did you came [sic] from on that particular
date?
A. I came from school, madam.
Q. When your father followed you inside the bedroom, can you recall what
happened next, if any?
A. Yes, madam.

A. He lifted again one of my legs and then placed himself on top of me,
madam.
Q. In other words, madam witness, the third time you were sexually
abused by your father, he lifted again your right legs [sic] but this time
he put some oil in [sic] it before he inserted it in your vagina?
A. Yes, madam.
Q. And after inserting his penis inside your vagina, what happened next, if
any?
A. He removed his sex organ or pulled out his sex organ and then played
with it and sticky substance came out of it.[11]

Q. What happened?
A. He instructed me to lie down on my back and instructed me further to
remove my shorts, madam.
Q. Did you obey his orders?
A. No madam, I did not.
Q. What happened next when you refused to removed [sic] your shorts?
A. He pointed an ice pick to [sic] me, madam.
Q. The same ice pick he pointed at you on the first occasion you were
sexually abused by your father?
A. No madam, it is different.
Q. How can you tell that it was a different ice pick that he used?
A. I said that it was different ice pick because the first ice pick he used on
me before, I kept it away, so what he did, he made another ice pick
which is quite longer.
Q. Did you actually see your father making that particular ice pick?
A. Yes, madam.
xxx
Q. Now, after your father placed some oil in [sic] his penis, what did he do
next, if he did anything?

Irene on the witness stand:

PROS. AGARAN:
Q. Irene, kilala mo ba si Mama?
A. Opo.
xxx
Q. Si Papa kilala mo rin?
A. Opo.
xxx
Q. Irene, mahal mo ba si Mama?
A. Opo.
Q. Eh, si Papa, mahal mo rin ba?
A. Hindi na po.
Q. Bakit hindi mo na mahal si Papa?
A. Kasi po ang kamay niya ay pinapasok sa penching ko.
Q. Pakituro mo nga kung ano yong sinasabi mong penching?
AT THIS JUNCTURE, THE WITNESS IS CRYING. AND WITNESS [IS]
TOUCHING HER SEX ORGAN.

341
Q. Ano yong kamay na ipinapasok doon sa penching mo, sabihin mo nga
anak kung ano yon? Nasaan yong daliring sinasabi mo, ituro mo
kung anong daliri ang ipinapasok ng iyong Papa sa penching mo?

Q. Kahit kanino?

WITNESS TOUCHING HER RIGHT AND MIDDLE FINGER.

Q. Kay Mama, hindi mo kinuwento kay Mama?

Q. Nasaan kayo pagka pinapasok ni Papa yong daliri niya sa penching

mo?

A. Hindi po.

A. Nasa kama po.

A. Eh, wala siya.

Q. Anong suot mo pag nasa kama kayo tapos pinapasok ni Papa yong
daliri niya sa penching mo? Nasaan ka?

Q. Nasaan si Mama noon nuong ipasok niya ang daliri niya sa penching
mo?

A. Nasa amin po.

A. Kina Lola po.

Q. Saan yon amin na sinasabi mo, Irene saan anak?

Q. Hindi na ba bumalik si Mama sa bahay?

PROS. AGARAN: The witness is now crying, your Honor.

A. Bumalik po.

ATTY. JOSON: Scratching only, your Honor.

Q. Eh, bakit hindi mo ikinuwento?

PROS. AGARAN:

A. Gabi na po.

Q. Pag ipinapasok ang daliri ni Papa sa penching mo, ano ang

nararamdaman mo?

Q. Ibig mong sabihin pag gabi na si Mama natutulog ka na?

A. Masakit po.
Q. Maliban sa pagpasok ng daliri ng Papa sa penching mo, ano pa ang
ginawa sa iyo?

A. Wala po.

Q. Bakit hindi mo kinuwento kay Mama?

A. Opo.
Q. Wala kang talagang pinagkwentuhan?
A. Wala po.

A. No answer.

Q. Hindi mo ikinuwento maski na kina Ate?

PROS. AGARAN: She refused to answer, your Honor, but she kept on
crying.

A. Kay Roselyn po.

COURT:
Q. Bakit ka umiiyak? Hindi naman kami nagagalit sa iyo.

PROS. AGARAN: The witness refused to answer, your Honor. That will be
all for the witness, your Honor.

PROS. AGARAN:

COURT:

Q. Meron ka bang pinagkuwentuhan ng ginawa ng Papa mo ang

pagpasok sa penching mo?

Q. Ituro mo nga kung sino ang nagpapasok ng daliri sa penching mo?

A. Wala po.

Q. Ano ang sinabi mo kay Ate Roselyn?

A. WITNESS POINTING TO A PERSON IN THE COURTROOM WHO

STOOD UP AND GAVE HIS NAME AS RODRIGO CALMA.

342
PROS. AGARAN:

A. Painful, your Honor.

Q. Sino siya?

Q. Ano pa?

A. Papa ko.

No answer.

COURT: Cross?

ATTY. JOSON: No further question, your Honor.[12]

ATTY. JOSON: Yes, your Honor. With the kind permission of this
Honorable Court.
COURT: Proceed.
ATTY. JOSON:
Q. Irene, is it not a fact that your mother and your father frequently quarrel
with each other?
A. Yes, sir.
Q. And in fact, because of that frequent trouble your mother was
angry [sic] to your father?
A. Yes, sir.
Q. And because your mother was angry she told you to testify against
your father?
PROS. AGARAN: Your Honor, at her age she is incompetent to testify on
those matters.
COURT: Let the witness answer.
A. No, sir.
Q. Considering that your mother did not instructed [sic] you to file action
against your father, my question to you Irene is, who is the person
who told you that something wrong was done to you by your father?
A. None, sir.
COURT:
Q. Di ba natutulog ka nuong ilagay ang kamay niya sa penching mo?
A. No, your Honor.
Q. Anong naramdaman mo nong ilagay iyon?

Accused-appellant denied his daughters accusations. He charged

that Myrna Ignacio, his common law wife and mother of his children,
coached his daughters to lie. He claimed that he had seriously hurt her in the
past, twice by electrocution on suspicion of infidelity. He also accused her of
using the criminal cases to force him to waive his ownership rights over their
house and lot in her favor.
Seeking to help accused-appellant, his mother, Catalina Calma, his
neighbor, Gloria Ceraus, his mothers laundrywoman, Eugenia Lontoc, his
sister-in-law, Lolita Calma, family friend, Rosalie Ofrecio,and a confidante of
Annalyn, Larry Laurora, attested to the close family ties of the Calmas. They
testified that accused-appellants daughters, especially Annalyn, showed
much affection towards their father.Catalina Calma, Lolita Calma and Larry
Laurora even insinuated that Annalyn was in love with her father and was
seducing him.
On September 25, 1996, the trial court convicted the accused on all
three (3) charges. It ruled:
The defenses position that the charges were fabricated and that the private
complainants were coached is untenable. A teenage unmarried lass would
not ordinarily file a rape complaint against anybody much less her own father
if it were not true (People v. Matrimonio, 215 SCRA 613). A daughter,
especially one of tender age would not accuse her own father of this heinous
crime had she really not have been aggrieved (People v. Dusohan, 227
SCRA 87; People v. Magpayo, 226 SCRA 13). In their childhood innocence
and naivete they could not have concocted the story of how they were
wantonly ravished and sexually assaulted (see People v. Magallanes, 218
SCRA 109; People v. Joya, 227 SCRA 9).
Neither is there no [sic] merit in the accuseds argument that the abuses if
true could not have been endured by the private complainants for almost a
year without telling anyone. It is not uncommon for young girls to conceal for
sometime the assaults on their virtue because of the rapists threats on their

343
lives. Delay or vaccilation in making a criminal accusation does not
necessarily impair the credibility of the witness if such delay is satisfactorily
explained (People v. Errojo, 229 SCRA 49 x x x). The fact that there was no
outcry from the offended party is immaterial in the rape of a child below
twelve years old (People v. Ylarde, 224 SCRA 405). Also, the precise date
when complainant was sexually abused is not an essential element of the
offense (People v. Ocampo, 206 SCRA 223).
The defense also argues that there was no external evidence of the use of
force. In the case of People v. Coloma it has held that previous passivity of a
daughter in allowing her father to have carnal knowledge of her for eight (8)
years is not a valid defense against unconsented intercourse. The kind of
force or violence, threat or intimidation as between father and daughter need
not be of such nature and degree as would be required in other cases, for
the father in this particular instance exercises strong moral and physical
influence and control over his daughter (People v. Coloma, 222 SCRA
255). In a rape case committed by a father against his own daughter the
fathers moral ascendancy and influence over the latter substitutes for
violence and intimidation (People v. Matrimonio, 215 SCRA 613).
It was held in People v. Ignacio, 233 SCRA 1, that courts may take judicial
notice of the interesting fact that among poor couples with big families living
in small quarters, copulation does not seem to be a problem despite the
presence of other persons around them. Rape can be committed even if the
victim is sleeping on the same bed with others (People v. Villorente, 210
SCRA 647). Thus it was not impossible for the accused to commit the
abuses on his daughters simply because they were sleeping on the same
bed.
It was also argues [sic] that the extent of the injuries sustained by the two
younger complainants are not enough to support the charges. Suffice it to
say that healed lacerations in the hymen do not negate rape; neither does
the absence of spermatozoa in the vaginal canal (People v. Liquiran, 228
SCRA 62; People v. Magallanes, 218 SCRA 109). Even if there were no
lacerations of the hymen this fact alone does not necessarily mean that there
was no rape. The merest introduction of the male organ into the labia of the
pudendum is sufficient. The mere penetration of the penis by the entry
thereof into the labia majora of the female organ even without rupture of the
hymen suffices to warrant a conviction for rape (People v. Sanchez, 250

SCRA 14). Annalyn and Roselyn testified that there was penetration and that
it was very painful. The pain could be nothing but the result of penile
penetration, sufficient to constitute rape (People v. Sanchez, supra).
The mother of the accused, as well as his sister-in-law imply (sic) that an
amorous relationship could exist between the accused and Annalyn, and
such is one of the theories of the defense. However, where the accused
adopted the theory that the victim consented to his sexual desires, the
sexual act itself is deemed admitted except as to consent [but] x x x as
contrary evidence showed the victim sustained physical injuries consistent
with her claim that she was sexually abused without her consent (People v.
Saluna, 226 SCRA 447). The charge that the complainant in a rape case has
loose morals must be supported by strong evidence (People v. Coloma, 222
SCRA 255). Such a claim could only lead this court to believe that the
defense would try to exculpate the accused by blaming the victim, which this
court is not inclined to do.
The accused imputes false motive in the filing of these case[s] on the part of
Myrna. It is unnatural for a parent to use her offspring as an engine of
malice, especially if it will subject a daughter to embarassment and even
stigma (People v. Ching, 240 SCRA 267; People v. Ignacio, 233 SCRA
1). No mother would stoop so low as to subject her daughter to physical
hardship and shame concommittant to a rape prosecution just to assuage
her own hurt feelings (People v. Rejano, 237 SCRA 627).
A violation of a womans chastity becomes doubly repulsive where the
outrage is perpetrated on ones own flesh and blood, for the culprit is reduced
to a level lower than a beast (People v. Dusohan, 227 SCRA 87). Because of
the acts of the accused the private complainants have been denied their right
to grow up and discover the wonders of womanhood in the natural way, and
an award of moral indemnification in the amount of P50,000.00 is proper
(People v. Escoto, 229 SCRA 430; People v. Mejorada, 224 SCRA 857), as
well as an award of exemplary damages as correction for the public good
(People v. Matrimonio, 215 SCRA 613), in the amount of P25,000.00.[13]
Accordingly, accused-appellant was meted out the following penalties:
WHEREFORE, premises considered, judgment is hereby rendered:

344
In Criminal Case No. 752-M-96
Finding the accused Rodrigo Calma y Sacdalan GUILTY beyond reasonable
doubt of the crime of rape and sentencing him to the penalty of death to be
carried out in accordance with law; and to indemnify Annalyn Calma in the
amount of P50,000.00, to pay her the amount of P50,000.00 as moral
damages, the amount of P25,000.00 as exemplary damages;
In Criminal Case No. 753-M-96
Finding accused Rodrigo Calma y Sacdalan GUILTY beyond reasonable
doubt of the crime of rape and sentencing him to the penalty of death to be
carried out in accordance with law; and to indemnify Roselyn Calma in the
amount of P50,000.00, to pay her the amount of P50,000.00 as moral
damages and the amount of P25,000.00 as exemplary damages; and
In Criminal Case No. 754-M-96
Finding the accused Rodrigo Calma y Sacdalan GUILTY beyond reasonable
doubt of the [crime of] acts of lasciviousness under Article 336 of the Revised
Penal Code and R.A. [No.] 7610, and sentencing him to the penalty
of reclusion temporal in its medium period, to indemnify Irene Calma in the
amount of P50,000.00, to pay P50,000.00 as moral damages
and P25,000.00 as exemplary damages.
SO ORDERED.

[14]

On automatic appeal because of its twin sentences imposing the death

penalty, the foregoing decision of the trial court is now before us.
In his Brief dated October 21, 1997, accused-appellant interposed a
single error, thus:
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED OF THE
CRIMES CHARGED DESPITE FAILURE OF THE PROSECUTION TO
PROVE HIS GUILT BEYOND REASONABLE DOUBT.[15]
We find on record overwhelming evidence of the guilt of accusedappellant. The testimony of the three victims, his own daughters, withstood

the test of cross-examination. They spontaneously, clearly and credibly

spoke of the details of their defilement. The defense did not dispute the time,
the place, the manner and the frequency of the sexual abuses. Neither did
the defense show that their hymenal lacerations, as found by Dr. Jesusa
Nieves Vergara, the medico-legal officer who examined them, were the
results of other causes. Dr. Vergara testified, thus:
xxx
Q. At around 11:30 in the morning of that day, do you recall having
physically examine [sic] the person[s] of Roselyn Calma, Irene Calma
and Annalyn Calma?
A. Yes, sir.
xxx
SP BALAUAG:
Q. You stated that you conducted a physical examination on the person of
Annalyn Calma on May 3, 1996, is [sic] the findings of your
examination was [sic] also reduced in writing?
A. Yes, madam.
Q. I am showing to you medico legal report No. M-647-96, what relation
has this medico legal report to the one you stated you executed?
A. This is the original medico legal report No. M-647-96 which I prepared.
xxx
Q. We are marking the same as our Exhibit K, and that the signature of
Dr. Vergara be bracketed and be marked as Exhibit K-1. x x x You
stated in your genital findings that on separating the same disclosed
an elastic, fleshy-type hymen with shallow healed lacerations at 3
and 5 oclock and deep healed lacerations at 8 and 9 oclock
positions. [I]n laymans language, can you tell us wat this [sic] genital
findings means [sic]?
A. The numbers here, 3, 5, 8 and 9 oclock will just indicate the positions
of the lacerations. So, since the hymen is circular in appearance, it is
being correlated to the face of the watch when we say the laceration
is 3:00 oclock, it means that the laceration or it occupies the number
in the clock. The same goes with the 5, 8 and 9 oclock. By shallow

345
laceration, it means that it does not exceed more than 50% or more
than half of the width of the hymen and by deep laceration, it exceed
[sic] more than 50% or more than 1/2 of the width of the hymen and
by healed laceration, it means that the edges of the laceration has
already healed showing reaction like swelling, redness or contusion
on the area.

xxx
Q. [Let] the signature over the typewritten name Jesusa Vergara be
bracketed and be marked as our Exhibit L-1 x x x. You stated in your
findings that on the genital [area]:
`There is absence of pubic hair. Labia majora are full, convex
and gaping with th [sic] pinkish labia minora presenting in
between. On separating the same disclosed an elastic, fleshy-type
hymen with shallow healed lacerations at 3 and 9 oclock
positions. External vaginal origice [sic] admits tip of the examiners
smallest finger. Now in laymans language, Doctor, can you tell us
what this [sic] gental findings means [sic]?

xxx
SP Balauag:
Q. You concluded in your conclusion that the subject is in non-virgin state
physically. Can you kindly explain how you were able to conclude that
the subject is in a non-virgin state?
A. The findings in the hymen is [sic] a healing laceration.
xxx
Q. Dr., can you tell us what might have cause [sic] this laceration in the
hymen you found on [sic] Annalyn Calma?
A. Forcible entry of a hard blunt object.
xxx
COURT:
xxx

A. That I found two (2) lacerations on the hymen, positions 3 and 9 oclock
positions. [B]oth lacerations were shallow healed lacerations.
Q. Now, Doctor, there appears a conclusion [where] you said [in the]
medico legal report that the subject is in a non-virgin state physically,
can you tell us the basis of your conclusion?
A. The basis for saying this is my findings on the hymen revealing the
healed lacerations.
Q. This laceration you found on the hymen [of] the private complainant
Rosallyn [sic] Calma, can yoy [sic] inform this Honorable Court what
or [sic] might have cause [sic] the said lacerations?

Q. What was the cause of your conclusion or findings that the victim is no
longer a virgin?

A. Forcible entry of a hard blunt object which can be a form of an erected

sexual organ.

A. Forcible entry of a hard blunt object can be caused by an insertion of a

male sex organ.

Q. On May 3, 1996, do you remember having physically examine [sic] the

person of Irene Calma?

SP BALAUAG:

A. Yes, madam.

Q. On May 6, 1996, did you examine the person of Rosallyn [sic] Calma?

Q. Was [sic] your findings after you physically examine [sic] the person of
Irene Calma reduced into writing?

A. Yes, madam.
Q. After conducting your physical examination was [sic] your findings
reduced into writing?
A. Yes, madam.

A. Yes, madam.
xxx
Q. I forgot, we are marking the findings of the doctor as Exhibit L-3, your
Honor for purposes of identification we are marking the medico legal

346
report 649-M-96 as our Exhibit M and the signature over the
typewritten name Dr. Jesusa Vergara be bracketed and be marked as
our Exhibit M-1. x x x Doctor, in this [sic] findings regarding the four
year old private complainant Irene Calma you stated in your findings
that there are lacerations found in the hymen of the four (4) year old
child, can you tell us in laymans language what this means?
A. In this particular case, there were two (2) lacerations noted on the
hymen of the victim. [B]oth were healing lacerations one shallow
healing laceration 3 oclock and another, deep laceration position 3
oclock.

xxx
Q. In fact, aside from the erected male penis, finger, what are the other
factors or things that might cause laceration in the hymen?
A. A fall against a hard sharp object, sir.
Q. Doctor, is it possible considering the young age of the subject person
by strenuous exercise and activities may the same caused [sic]
laceration of the hymen?
A. No, sir there has to be a direct trauma on the hymen, sir.

Q. Can you tell us the basis of your conclusion that the victim Irene Calma
is also [in] a non-virgin state?

Q. How about riding on a bicycle?

A. My basis for saying this [is] the findings on the hymen revealing
lacerations.

Q. Doctor, you also stated healing laceration, from the time of the
examination what is the probable time or what is the period of time
wherein you can still consider a laceration a healing laceration?

Q. In this particular case where the victim or the private complainant is

four years old, will you tell us what might have caused the laceration
you found in the hymen of Irene Calma?
A. Forcible entry of a hard blunt object.[16]
At most, during cross-examination, the defense got Dr. Vergara to concede
that hymenal lacerations can also be caused by a fall on a sharp object. The
defense, however, failed to establish that the three victims had, on specific
occasions, met an accident of that nature. Thus goes the cross-examination
of Dr. Vergara:
ATTY. JOSON:
Q. Madam witness, x x x you stated that that [sic] x x x the healed
laceration might be caused by a blunt instrument or an erected adult
penis. Now, madam witness, aside from adult male penis, what other
factor that might caused [sic] lacerations in the hymen which falls
under the category of a hard blund [sic] object?
A. Insertion of the finger provided that diameter of the finger is greater
than the diameter of the opening of the vagina, [sir].
Q. Can it be the finger of the subject person herself?
I withdraw that.

A. No, sir.

A. Less than seven (7) days per examination, sir.

Q. To be considered a healed laceration, the examination must be
conducted within seven days?
A. More than seven (7) days.
Q. Healing laceration?
A. For healed laceration, it should be more than seven (7) days, for
heal[ing] lacerations less than seven (7) days.
xxx
COURT:
Q. Doctor, can you determine Dr. when was the actual date wherein the
victim lost their virginity?
A. For the exact date, I can not determine but I can only approximate, but
my findings are compatible per their allegations that the incident
happened a year [before my examination].[17]
Accused-appellant next submits that the evidence of the prosecution should
not be given credence by this Court because of their inherent

347
improbabilities. He pleads this Court to consider his daughters to have lied
under oath because:
1. Annalyn and Roselyn both testified that he always withdrew his penis and
ejaculated outside them, but such self-control and willpower is impossible for
a man who lusted even for his own daughters.[18]
2. His daughters did not behave like rape victims. They continued to be close
and affectionate towards him, hugging and kissing him in public. They
always slept together in one room. They continuously attended their classes
and even got high grades.[19]
3. His daughters should have died or suffered some serious physical injury if
it were true that his penis forcefully penetrated their vaginas.[20]
All these, accused-appellant submits, cast reasonable doubt on his guilt.
The law presumes that an accused is innocent and this presumption
stands until it is overturned by competent and credible proof. It is incumbent
upon the prosecution to establish the guilt of the defendant beyond a
reasonable doubt. The reasonable doubt should necessarily pertain to the
facts constitutive of the crime charged.[21] Discrepancies that touch on
significant facts are crucial on the guilt or innocence of an accused.
[22]
Conversely, inconsistencies and discrepancies in details which are
irrelevant to the elements of the crime are not grounds for acquittal.[23] The
rule of falsus in uno, falsus in omnibus has never been regarded as positive,
mandatory, or inflexible.[24]
Surmises and conjectures have no place in a judicial inquiry and are
especially anathema in a criminal prosecution.[25] In a criminal prosecution a
reasonable doubt can be created by many things but to be sufficient to
prevent a conviction, it must arise from the evidence adduced or from the
lack of evidence, and can arise from no other legitimate source. [26] While no
test definitively determines which is and which is not considered reasonable
doubt under the law, it must necessarily involve genuine and irreconcilable
contradictions based, not on suppositional thinking, but on the hard facts
constituting the elements of the crime. It is not mere possible doubt, because
everything relating to human affairs is open to some possible or imaginary
doubt.[27] It should not be vague, speculative or whimsical, but intelligent,
reasonable and impartial and based on a careful examination and conscious

consideration of all the evidence in the case. [28] A reasonable doubt is not
such a doubt as any man may start by questioning for the sake of a doubt;
nor a doubt suggested or surmised without foundation in facts or testimony,
for it is possible always to question any conclusion derived from testimony,
but such questioning is not what is reasonable doubt. Rather, it is that state
of the case which, after the entire comparison and consideration of all the
evidence leaves the mind of the judge in that condition that he cannot say
that he feels an abiding conviction to a moral certainty of the truth of the
charge.[29] Absolute certainty is not demanded by the law to convict of any
criminal charge but moral certainty is required, and this certainty must attend
every proposition of proof requisite to constitute the offense. [30] Absolute,
mathematical, or metaphysical certainty is not essential, and besides, in
judicial investigation, it is wholly unattainable. Moral certainty is all that can
be required.
In the instant case, accused-appellant exhorts this court to consider the
lack of internal ejaculation and the absence of any injury on the part of the
victims, which were testified to by the prosecution witnesses themselves,
and their continuous show of affection towards their father, as testified to by
the defense witnesses, as indicia of reasonable doubt warranting his
acquittal. They lied, argues accused-appellant, because their testimony is
improbable, if not impossible, and their affectionate behavior towards him,
their alleged rapist, was a contradiction in terms.
We agree with the Solicitor General that these contentions are
conjectural. On the charge that the narrations of the victims
were fabricated for the purpose of evading the questions as to why no
spermatozoa was found in them during the physical examinations and why
they did not get pregnant, the Solicitor General correctly noted that Annalyn
and Roselyn were last sexually abused by appellant in March 1996 while the
physical examinations were conducted on May 3, 1996 or almost two (2)
months thereafter. Hence, even assuming that he ejaculated while they had
intercourse, the spermatozoa would have been washed off by May 3, 1996,
not to mention that the lifetime of spermatozoa definitely does not run to two
(2) months. In any event, the presence or absence of spermatozoa in the
vagina is not even determinative of the commission of rape because a sperm
test is not a sine qua non for the successful prosecution of a rape case.
[31]
The important element in rape is penetration of the pudenda and not
emission of seminal fluid.[32]

348
The Court is also not impressed by accused-appellant's claim that he
could not have raped Annalyn and Roselyn because they continued to be
close to him, i.e., they still hugged and kissed him in publicand continued to
sleep with him in one room. They were also allegedly able to continue
attending their classes and obtain good grades at the time they were
supposedly molested by him.
It was Catalina Calma, mother of accused-appellant, , who testified
about Annalyns and Roselyns supposed show of affection towards him and
their supposed normal life during that trying period. ButCatalinas testimony is
hard to believe. Annalyn herself testified that at that time, she was cutting
classes and in school, her classmates saw her crying at the library.
[33]
Roselyn, on her part, testified that she was greatly bothered by what
appellant had done to her and after the case was filed, she felt at peace and
was able to continue with her studies.[34]
There is also nothing commendable in accused-appellant's contention
that the forceful insertion of a normal-size adult male penis into the vagina
of girls of victims' ages would have required hospitalization and medical
attention. Again, we sustain the Solicitor General's argument that full
penetration of the vagina is not necessary to constitute the consummated
crime of rape. It is settled that the mere entry of the penis into the labia
majora of the female organ, even without rupture of the hymen, suffices to
warrant a conviction of rape.[35]
The arguments of accused-appellant are premised on the misconception
that reasonable doubt is anything and everything that removes a statement
from the matrix of certitude. Were we to agree with him and treat every
unlikely or uncommon trait characterizing a person, each strange or unusual
event in the occurrence of a crime, or just any unexplained, irregular or
dysfunctional behavior on the part of the accused or his victims, as basis for
reasonable doubt, no criminal prosecution would prevail. It bears repeating
that even inconsistencies and discrepancies in the prosecution evidence,
unless treating of the elements of the crime, would not necessarily bring
about a judgment of acquittal. In this case, there is not even any
inconsistency or discrepancy to speak of. Accused-appellant denied criminal
liability by simply insisting that his daughters, with coaching from their
mother, lied on the witness stand. But during cross examination, they never
flinched in their testimony. They spoke in simple, direct words customary of
children of their ages, and they maintained their testimony amidst
warnings[36] by the court and the defense counsel that their father may be

meted out the death penalty if found guilty of the crimes that they were
charging him with. Significantly, their testimony was corroborated by the
medical findings of vaginal lacerations on all three victims and their nonvirgin state.[37] Neither may any of the defense evidence be attributed with
having materially negated the positive testimony of accused-appellants
daughters regarding their defilement in the hands of their father. The defense
witnesses may have testified that they remained affectionate towards their
father and continued to earn high grades in school, but they denied these
statements and countered that they had cut classes and were sometimes
seen crying in the library by some of their classmates. [38] All things
considered, we find the evidence against the accused-appellant established
his guilt beyond reasonable doubt.
WHEREFORE, the appeal is HEREBY DENIED, and the judgment of
conviction rendered by the Regional Trial Court, 3rd Judicial Region, Malolos
Bulacan, Branch 14, finding Rodrigo Calma y Sacdalan guilty beyond
reasonable doubt for two (2) counts of Rape under Art. 335 of the Revised
Penal Code, as amended by Sec. 11 of Republic Act No. 7659, and one (1)
count of Acts of Lasciviousness under Art. 336 of the Revised Penal Code in
relation to Sec. 5(B) of Art. III of Republic Act No. 7610, is AFFIRMED with
the slight modification that the civil indemnity in each of the three offenses is
increased to P75,000.00 in accordance with the latest jurisprudence[39]on the
matter. Accused-appellant RODRIGO CALMA Y SACDALAN is hereby
sentenced:
In Criminal Case No. 752-M-96
To the penalty of death to be carried out in accordance with law; and to
indemnify Annalyn Calma in the amount of P75,000.00, and to pay her the
amount of P50,000.00 as moral damages and P25,000.00 as exemplary
damages;
In Criminal Case No. 753-M-96
To the penalty of death to be carried out in accordance with law; and to
indemnify Roselyn Calma in the amount of P75,000.00, and to pay her the
amount of P50,000.00 as moral damages and P25,000.00 as exemplary
damages; and

349
In Criminal Case No. 754-M-96

CARPIO-MORALES, J.:

To the penalty of reclusion temporal in its medium period; and to indemnify

Irene Calma in the amount of P50,000.00, and to pay P50,000.00 as moral
damages and P25,000.00 as exemplary damages.

An assault on sexual innocence can open a floodgate of emotions. This

Court, however, cannot allow emotions to drown an accuseds right to be
informed of the nature and cause of the accusation against him.

Four (4) Members of the Court, although maintaining their adherence to

the separate opinions expressed in People v. Echegaray[40] that R.A. No.
7659 insofar as it prescribes the penalty of DEATH is unconstitutional,
nevertheless, submit to the ruling of the Court, by a majority vote, that the
law is constitutional and that the death penalty should accordingly be
imposed.
In accordance with Section 25 of Republic Act No. 7659, amending
Article 83 of the Revised Penal Code, upon finality of this decision, let the
records of this case be forthwith forwarded to the Office of the President for
possible exercise of the pardoning power. No pronouncement as to costs.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno,
Vitug,
Kapunan,
Mendoza,
Panganiban,
Martinez,
Quisumbing, and Purisima, JJ., concur.

EN BANC

[G. R. No. 128823-24. December 27, 2002]

For automatic review before this Court is the Joint Decision of the
Regional Trial Court, Branch 46, Urdaneta, Pangasinan finding accusedappellant Pedro Flores Jr. y Flores aliasPesiong guilty of two counts of rape
of his then 11 year old daughter and sentencing him to suffer the penalty of
death in each.
The complaints against accused-appellant filed on February 3, 1997
read as follows:
Criminal Case No. U-9184:
CRIMINAL COMPLAINT[1]
The undersigned, FILIPINA FLORES Y LAZO, 11 years old, grade three
pupil and a resident of Sitio Buenlag, Brgy Nancamaliran West, Urdaneta,
Pangasinan, under oath, hereby accuses PEDRO FLORES, JR., Y FLORES
for the crime of RAPE, committed as follows:
That on the 9th day of December 1996, in the morning at Sitio Buenlag, Brgy.
Nancamaliran West, Municipality of Urdaneta, Province of Pangasinan,
Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, by means of force and intimidation, did then and there,
willfully, unlawfully, criminally and feloniously sexually abuse the herein
complaining witness FILIPINA FLORES Y LAZO, 11 years old, all against her
will.
x x x (Emphasis supplied).
Criminal Case No. U-9185:

PEOPLE OF THE PHILIPPINES, accused-appellee, vs. PEDRO FLORES,

JR., y FLORES ALIAS PESIONG, accused-appellant.
DECISION

CRIMINAL COMPLAINT[2]

350
The undersigned, FILIPINA FLORES Y LAZO, 11 years old, grade three
pupil and a resident of Sitio Buenlag, Brgy. Nancamaliran West, Urdaneta,
Pangasinan, under oath, hereby accuses PEDRO FLORES, JR., Y
FLORES, ALIAS PESYONG, committed as follows:
That on the 28th day of December 1996, in the evening at Sitio Buenlag, Brgy
Nancamaliran West, Municipality of Urdaneta, Province of Pangasinan,
Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, with deliberate intent and by means of force and
intimidation, did then and there, willfully, unlawfully, criminally and
feloniously sexually abuse the herein complaining witness FILIPINA
FLORES, an 11 years old and daughter of the herein accused with the use of
sharp pointed bladed weapon and all against her will.
x x x (Emphasis supplied).
Arraigned on February 10, 1997, accused-appellant pleaded not guilty to
both charges.[3]
Culled from the records of the case are the following facts established
by the prosecution:
On December 5, 1996, private complainant Filipina L. Flores (Filipina),
11 years old at the time, and her younger sister Catherine were left to the
care of their father, herein accused-appellant, at their family residence in
Sitio Buenlag, Barangay Nancamaliran West, Urdaneta, Pangasinan, their
mother Marcelina L. Flores having departed for Singapore to work as an
overseas contract worker.
After partaking of supper on the night of December 9, 1996, [4] accusedappellant asked Filipina to accompany him to the comfort room situated
outside their house,[5] claiming that he was afraid of ghosts. [6] Albeit Filipina
did not believe[7] him, she acquiesced because her mother had told her to
always obey her father.[8]
When accused-appellant came out of the comfort room, he ordered
Filipina to remove her short pants, threatening her with death if she
disobeyed,[9] and made her lie down.[10] He then removed his short pants and
brief and, against her will, he inserted his finger and later his penis into
Filipinas vagina[11] where she later felt hot fluid.[12]

Accused-appellant thereafter wiped Filipinas vagina and his hand,

threatened to kill her if she reported what he did, directed her to put on her
shorts, and they both went home. The following morning, Filipina reported
the incident to her Inang Lorie whose full name is Norielyn Antonio, the aunt
of her mother, who told her that if her father would sexually assault her
again, he would have him detained.
Nineteen nights later or on December 28, 1996, as Filipina lay asleep in
their house, she was awakened when accused-appellant touched her right
foot.[13] Armed with a knife[14], accused-appellant told her not to talk[15] and
ordered her to remove her short pants and panty. She complied. Accusedappellant thereupon removed his short pants and brief and went on top of
her chest during which she tried to push him away but failed.
Accused-appellant then inserted his finger into Filipinas vagina for some
time,[16] wiped his hands, and then inserted his penis for a long time as he
was sucking her breast. Filipina felt accused-appellants semen drop into her
private organ where she noticed the presence of blood and a bit of whitish
substance.
Accused-appellant later wiped her vagina with a towel. The following
morning, private complainant again reported the matter to her grandaunt
Norielyn,[17] and to her playmate Carla Salvador.[18]
On January 31, 1997, Filipina, accompanied by Norielyn, a relative, and
a tricycle driver-neighbor, reported the matter to the Philippine National
Police of Urdaneta where she gave a statement. On the same day, she, still
accompanied by Norielyn, submitted herself to a medical examination at the
Don Amadeo J. Perez, Jr. Memorial General Hospital the results of which are
contained in a medical certificate[19] showing the following:
(-) Negative menarche
- Multiple deep healed lacerations all over the labia majora.
- Admits examining finger with ease.
- (+) sticky whitish discharge.
Dr. Jeanna B. Nebril, the examining physician, found the presence of
deep-healed lacerations all over the labia majora[20] which deep-healed

351
lacerations connote, according to the doctor, the application of force,
possibly two weeks before the examination.
Denying the accusations, accused-appellant claimed as follows:
Filipina, whom he whipped in the afternoon of December 9, 1996 for not
attending school on the 6th, 7th and 8th of December that year and for having
received money from her classmate, [21] was not in their house on the night of
December 9, 1996 because she was in the house of Norielyn. Neither was
she in their house on the night of December 28, 1996 as she was at the
house of his mother Margarita Flores[22] in Cafloresan.
Accused-appellants testimony was corroborated by his mother
Margarita, and his teenaged children Benito and Baby Jean Flores who were
staying in his mothers house. It was also corroborated by another teenaged
child, Jocelyn Flores, who was staying in the house of accused-appellants
mother-in-law, Lourdes Lazo, also in Barangay Nancamaliran West.
[23]
Jocelyn added that Filipina had intimated to her that she fabricated the
rape charges because their maternal grandmother Lourdes wanted their
father, accused-appellant, jailed as he begrudged him for having eloped with
their mother,[24] and that Lourdes threatened her with abandonment or
detention in jail in case she defied, and promised to give her jewelry, shoes
and dress if she agreed to carry out her desire.
After trial, the court a quo found accused-appellant guilty of Statutory
Rape and sentenced her to death in both cases in its April 7, 1997 Joint
Decision, the dispositive portion of which reads:
WHEREFORE, JUDGMENT is rendered CONVICTING PEDRO FLORES,
JR. Y FLORES ALIAS PESIONG beyond reasonable doubt of the crime of
Statutory Rape, an offense defined and penalized under paragraph 3, Article
335, of the Revised Penal Code in relation to Section 1, Republic Act 7659
aggravated by relationship, the Court sentences, PEDRO FLORES, JR. Y
FLORES ALIAS PESIONG as follows:
CRIMINAL CASE NO. U-9184 to suffer the penalty of DEATH; ordering
Pedro Flores, Jr. y Flores alias Pesiong to pay Filipina the sum of
P50,000.00 as moral damages, P20,000.00 as exemplary damages, plus all
the necessary penalties and costs.

CRIMINAL CASE NO. U-9185 to suffer the penalty of DEATH; ordering

Pedro Flores, Jr. y Flores alias Pesiong to pay Filipina the sum of
P50,000.00 as moral damages, P20,000.00 as exemplary damages, plus all
the necessary penalties and costs.
Pedro Flores, Jr. y Flores alias Pesiong shall be committed immediately to
the National Bilibid Prisons. The Branch Clerk of Court is hereby ordered to
transmit the entire records of this case to the Honorable Supreme Court of
the Philippines for automatic review of this Decision.
In view of the penalty of death imposed by the court a quo, the case is
now before this Court on automatic review. Accused-appellant assigns as
errors the following:
I. THAT THE FILING OF THE CASE [AT BAR] WAS MOTIVATED
BY SOME FACTORS OTHER THAN THE TRUTH AS TO ITS
COMMISSION, AND SO THE ACCUSED SHOULD BE
ACQUITTED.
II. THAT THE COURT [A QUO] ERRED IN NOT APPRECIATING
THE DEFENSE OF THE ACCUSED-APPELLANT THAT THE
COMPLAINANT WAS NOT AT THE SCENE OF THE CRIME
WHEN THE ALLEGED INCIDENTS TOOK PLACE, A DEFENSE
SUFFICIENT TO OVERCOME AND DESTROY THE
TESTIMONY OF THE COMPLAINANT THAT WOULD HAVE
WARRANTED THE ACQUITTAL OF THE ACCUSEDAPELLANT.
It is settled that in a criminal case, an appeal throws the whole case
open for review, and it becomes the duty of the appellate court to correct
such errors as may be found in the judgment appealed from, whether they
are made the subject of assignment of errors or not.[25]
It is at once apparent, from a reading of the above-quoted complaints,
that accused-appellant was denied the constitutional right to be informed of
the nature and cause of the accusation against him. This right has the
following objectives: [26]
1. To furnish the accused with such a description of the charge against him
as will enable him to make the defense;

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2. To avail himself of his conviction or acquittal for protection against further
prosecution for the same cause;
3. To inform the court of the facts alleged, so that it may decide whether they
are sufficient in law to support a conviction if one should be had.
The right cannot be waived for reasons of public policy.[27] Hence, it is
imperative that the complaint or information filed against the accused be
complete to meet its objectives. As such, an indictment must fully state the
elements of the specific offense alleged to have been committed.[28] For an
accused cannot be convicted of an offense, even if duly proven, unless it is
alleged or necessarily included in the complaint or information.[29]
The court a quo found accused-appellant guilty of Statutory Rape under
Article 335[30] of the Revised Penal Code, as amended by R. A. No. 7659
(which restored the death penalty for heinous crimes effective December 31,
1993) which provides:
Article 335. When and how rape is committed.--- Rape is committed by
having carnal knowledge of a woman under any of the following
circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious; and
3. When the woman is under twelve years of age or is demented.
The gravamen of the crime of rape is carnal knowledge or sexual
intercourse between a man and a woman under the circumstances
enumerated in the penal code.[31] Thus, to sustain a conviction, the complaint
or information must allege that the accused had carnal knowledge of or
sexual intercourse with the private complainant. In the criminal complaints
at bar, however, no such allegation was made.
The allegation that accused-appellant did sexually abuse Filipina does
not suffice. In the recent case of People v. Lito Egan alias Akiao[32], this Court
ruled that although the prosecution has proved that [the therein private
complainant] Lenie was sexually abused, the evidence proffered is
inadequate to establish carnal knowledge.[33] Hence, sexual abuse cannot

be equated with carnal knowledge or sexual intercourse. [34] The allegation in

the instant criminal complaints that accused-appellant sexually abuse[d] the
private complainant cannot thus be read to mean that accused-appellant had
carnal knowledge or sexual intercourse with the private complainant.
This Court is not unaware of the rule in case there is a variance between
allegation and proof as etched in Section 4 of Rule 120 of the Revised Rules
of Criminal Procedure which reads:
SEC. 4. Judgment in case of variance between allegation and proof.When
there is variance between the offense charged in the complaint or
information and that proved, and the offense as charged is included in or
necessarily includes the offense proved, the accused shall be convicted of
the offense proved which is included in the offense charged, or of the offense
charged which is included in the offense proved.[35]
The case at bar, however, is not one of variance between allegation and
proof. The recital of facts in the criminal complaints simply does not properly
charge rape, sexual abuse not being an essential element or ingredient
thereof.
Neither can accused-appellant be convicted of acts of lasciviousness or
of any offense for that matter under our penal laws. It is settled that what
characterizes the charge is the actual recital of facts [36] in the complaint or
information. For every crime is made up of certain acts and intent
which must be set forth in the complaint or information with reasonable
particularity of time, place, names (plaintiff and defendant), and
circumstances. In other words, the complaint must contain a specific
allegation of every fact and circumstance necessary to constitute the crime
charged[37], the accused being presumed to have no independent knowledge
of the facts that constitute the offense.[38]
And even under the provisions of Republic Act No. 7610 (The Special
Protection of Children Against Child Abuse, Exploitation and Discrimination
Act),[39] accused-appellant cannot be held liable. Section 5 of said Act
provides:
SEC. 5. Child Prostitution and Other Sexual Abuse. -- Children, whether
male or female, who for money, profit, or any other consideration or due to
the coercion or influence of any adult, syndicate or group,indulge in sexual

353
intercourse or lascivious conduct, are deemed to be children exploited in
prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion perpetua
shall be imposed upon the following:
(a) Those who engage in or promote, facilitate or induce child prostitution
which include, but are not limited to, the following:

Section 2 (g) of the Rules and Regulations on the Reporting and

Investigation of Child Abuse Cases[40], issued pursuant to Section 32 of
Republic Act No. 7610, defines sexual abuse by inclusion as follows:
Sexual abuse includes 1) the employment, use, persuasion, enticement, or
coercion of a child to engage in, or assist another person to engage
in sexual intercourse or lascivious conduct or 2) the molestation,
3) prostitution, or 4) incest with children. (Underscoring supplied)

(4) Threatening or using violence towards a child to engage him as

a prostitute; or

From this broad, non-exclusive definition, this Court finds that the
phrase sexually abuse in the criminal complaints at bar does not comply with
the requirement that the complaint must contain a specific averment of every
fact necessary to constitute the crime. Notably, the phrase sexual abuse is
not used under R.A. No. 7610 as an elemental fact but as an altogether
separate offense. Above-quoted Section 5 thereof enumerates the
punishable acts that must be alleged in the complaint or information to hold
an accused liable, none of which is reflected in the complaints at bar
charging accused-appellant.

(5) Giving monetary consideration, goods or other pecuniary benefit

to a child with the intent to engage such child in prostitution.

The case of People v. Cruz [41] is instructive. There the information in

Criminal Case No. 15368-R read:

(1) Acting as a procurer of a child prostitute;

(2) Inducing a person to be a client of a child prostitute by means of
written or oral advertisements or other similar means;
(3) Taking advantage of influence or relationship to procure a child
as a prostitute;

(b) Those who commit the act of sexual intercourse or lascivious conduct
with a child exploited in prostitution or subjected to other sexual
abuse: Provided, That when the victim is under twelve (12) years of
age, the perpetrators shall be prosecuted under Article 335,
paragraph 3, for rape and Article 336 of the Revised Penal Code, as
amended by Act No. 3815, for rape or lascivious conduct when the
victim is under twelve (12) years of age shall be reclusion temporal in
its medium period; and
(c) Those who derive profit or advantage therefrom, whether as manager
or owner of the establishment where the prostitution takes place or of
the sauna, disco, bar, resort, place of entertainment or establishment
serving as a cover or which engages in prostitution in addition to the
activity for which the license has been issued to said
establishment. (Emphasis and underscoring supplied).

That on or about the 2nd day of August, 1997, in the City of Baguio,
Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, did then and there willfully, unlawfully and
feloniously commit sexual abuse on his daughter either by raping her or
committing acts of lasciviousness on her, which has debased, degraded
and demeaned the intrinsic worth and dignity of his daughter, JEANNIE ANN
DELA CRUZ as a human being.
CONTRARY TO LAW. (Emphasis supplied)
Finding the above-quoted information void, this Court held:
The Court also finds that accused-appellant cannot be convicted of rape
or acts of lasciviousness under the information in Criminal Case No.
15368-R, which charges accused-appellant of a violation of R.A. No. 7610
(The Special Protection of Children Against Child Abuse, Exploitation and
Discrimination Act), either by raping her or committing acts of lasciviousness.

354
It is readily apparent that the facts charged in said information do not
constitute an offense. The information does not cite which among the
numerous sections or subsections of R.A. No. 7610 has been violated by
accused-appellant. Moreover, it does not state the acts and omissions
constituting the offense, or any special or aggravating circumstances
attending the same, as required under the rules of criminal procedure.
Section 8, Rule 110 thereof provides:
Designation of the offense.The complaint or information shall state the
designation of the offense given by the statue, aver the acts or omissions
constituting the offense, and specify its qualifying and aggravating
circumstances. If there is no designation of the offense, reference shall be
made to the section or subsection of the statute punishing it.
The allegation in the information that accused-appellant willfully, unlawfully
and feloniously commit sexual abuse on his daughter [Jeannie Ann] either by
raping her or committing acts of lasciviousness on her is not a sufficient
averment of the acts constituting the offense as required under Section 8,
for these are conclusions of law, not facts. The information in Criminal Case
No. 15368-R is therefore void for being violative of the accused-appellants
constitutionally-guaranteed right to be informed of the nature and cause of
the accusation against him. (Emphasis & underscoring supplied)
As held by this Court in the above-case of Cruz, the allegation in the
information that the therein accused-appellant sexually abused the therein
private complainant by either raping or committing acts of
lasciviousness on her is not a sufficient averment of the acts constituting
the offense as required under Section 8 [of Rule 110], for these
are conclusions of law, not facts. Nothing less can be said of the criminal
complaints in the cases at bar. They are void for being violative of the
accused-appellants constitutional right to be informed of the nature and
cause of the accusation against him.

This Court thus takes this occasion to remind public prosecutors of their
crucial role in crafting criminal complaints and information. For all efforts may
be rendered futile and justice may be denied by a failure to state the acts or
omissions complained of as constituting the offense as exemplified by the
present case.
The foregoing disquisition leaves it unnecessary to dwell on accusedappellants assigned errors or of other errors including failure to allege
relationship in the first complaint, and lack of proof of minority in both cases.
WHEREFORE, the informations in Criminal Case Nos. U-9184 and U9185 are hereby declared null and void for being violative of the
constitutional right of accused-appellant Pedro Flores, Jr. y Flores alias
Pesiong, for Rape to be informed of the nature and cause of the accusation
against him. Hence, the cases against him are hereby DISMISSED.
The Director of Prisons is hereby directed to forthwith cause the release
of accused-appellant unless the latter is being lawfully held for another cause
and to inform the Court accordingly within 10 days from notice.
Costs de oficio.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban,
Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, AustriaMartinez, Corona, Callejo, Sr., and Azcuna, JJ.,concur.