oRepublic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 121234 August 23, 1995

HUBERT J. P. WEBB, petitioner,

vs.
HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Parañaque, Branch 258, HONORABLE
ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Parañaque, Branch 259, PEOPLE OF THE
PHILIPPINES, ZENON L. DE GUIA, JOVENCITO ZUÑO, LEONARDO GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and
NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional
Trial Court of Parañaque, Branch 274, respondents, LAURO VIZCONDE, intervenor.

G.R. No. 121245 August 23, 1995

MICHAEL A. GATCHALIAN, petitioner,

vs.
HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Parañaque, Branch 258, HONORABLE
ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Parañaque, Branch 259, PEOPLE OF THE
PHILIPPINES, ZENON L. DE GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION,
and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Parañaque, Branch 274,
respondents.

G.R. No. 121297 August 23, 1995

ANTONIO L. LEJANO, petitioner,

vs.
HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Parañaque, Branch 258, HONORABLE
ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Parañaque, Branch 259, PEOPLE OF THE
PHILIPPINES, ZENON L. DE GUIA, JOVENCITO ZUÑO, LEONARDO GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and
NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional
Trial Court of Parañaque, Branch 274, respondents.

PUNO, J.:

Before the Court are petitions for the issuance of the extraordinary writs of certiorari, prohibition and mandamus with application for
temporary restraining order and preliminary injunction to: (1) annul and set aside the Warrants of Arrest issued against petitioners by
respondent Judges Raul E. de Leon and Amelita Tolentino in Criminal Case No. 95-404; (2) enjoin the respondents from conducting
any proceeding in the aforementioned criminal case; and (3) dismiss said criminal case or include Jessica Alfaro as one of the accused
therein. 1

From the records of the case, it appears that on June 19, 1994, the National Bureau of Investigation (NBI) filed with the Department of
Justice a letter-complaint charging petitioners Hubert Webb, Michael Gatchalian, Antonio J. Lejano and six (6) other persons, 2 with the
crime of Rape with Homicide. Forthwith, the Department of Justice formed a panel of prosecutors headed by Assistant Chief State
Prosecutor Jovencio R. Zuño to conduct the preliminary investigation 3 of those charged with the rape and killing on June 30, 1991 of
Carmela N. Vizconde; 4 her mother Estrellita Nicolas-Vizconde, 5 and her sister Anne Marie Jennifer 6 in their home at Number 80 W.
Vinzons, St., BF Homes, Parañaque, Metro Manila.

During the preliminary investigation, the NBI presented the following: (1) the sworn statement dated May 22, 1995 of their principal
witness, Maria Jessica M. Alfaro who allegedly saw the commission of the crime; 7 (2) the sworn statements of two (2) of the former
housemaids of the Webb family in the persons of Nerissa E. Rosales and Mila S. Gaviola; 8 (3) the sworn-statement of Carlos J.
Cristobal who alleged that on March 9, 1991 he was a passenger of United Airlines Flight No. 808 bound for New York and who
expressed doubt on whether petitioner Webb was his co-passenger in the trip; (4) the sworn statement of Lolita Birrer, a former live-in
partner of Gerardo Biong, who narrated the manner of how Biong investigated and tried to cover up the crime at bar; 9 (5) the sworn
statements of Belen Dometita and Teofilo Minoza, two of the Vizconde maids, and the sworn statements of Normal White, a security
guard and Manciano Gatmaitan, an engineer. The autopsy reports of the victims were also submitted and they showed that Carmela
had nine (9) stab wounds, Estrellita twelve (12) and Jennifer nineteen (19). 10 The genital examination of Carmela confirmed the
presence of spermatozoa. 11

Before submitting his counter-affidavit, petitioner Webb filed with the DOJ Panel a Motion for Production And Examination of Evidence
and Documents for the NBI to produce the following:
 (a) Certification issued by the U.S. Federal Bureau of Investigation on the admission to and stay of Hubert Webb in the United
States from March 9, 1991 to October 22, 1992;
(b) Laboratory Report No. SN-91-17 of the Medico Legal Officer, Dr. Prospero A. Cabanayan, M.D.;
(c) Sworn Statements of Gerardo C. Biong (other than his Sworn Statement dated October 7, 1991);
(d) Photographs of fingerprints lifted from the Vizconde residence taken during the investigation;
(e) Investigation records of NBI on Engr. Danilo Aguas, et al.;
(f) List of names of 135 suspects/persons investigated by the NBI per Progress Report dated September 2, 1991 submitted by
Atty. Arlis Vela, Supervising Agent;
(g) Records of arrest, interview, investigation and other written statements of Jessica Alfaro (other than the May 22, 1995
Sworn Statement) conducted by the NBI and other police agencies;
(h) transmittal letter to the NBI, including the report of the investigation conducted by Superintendent Rodolfo C. Sison,
Regional Deputy Director, NCRC;
(i) The names of NBI officials/agents composing the Task Force Jecares, including their respective positions and duties;
(j) Statements made by other persons in connection with the crime charged.

The motion was granted by the DOJ Panel and the NBI submitted photocopies of the documents. It alleged it lost the original of the
April 28, 1995 sworn statement of Alfaro. This compelled petitioner Webb to file Civil Case No. 951099 in the Regional Trial Court
(RTC) of Makati, Br. 63, for the purpose, among others, of obtaining the original of said sworn statement. He succeeded, for in the
course of its proceedings, Atty. Arturo L. Mercader, Jr., produced a copy of said original in compliance with a subpoena duces tecum.
The original was then submitted by petitioner Webb to the DOJ Panel together with his other evidence. It appears, however, that
petitioner Webb failed to obtain from the NBI the copy of the Federal Bureau of Investigation (FBI) Report despite his request for its
production.

Petitioner Webb claimed during the preliminary investigation that he did not commit the crime at bar as he went to the United States on
March 1, 1991 and returned to the Philippines on October 27, 1992. 12 His alibi was corroborated by Honesto Aragon, Lecinia
Edrosolano, Sylvia Climaco, Gina Roque, Sonia Rodriguez, Edgardo Venture and Pamela Francisco. 13 To further support his defense,
he submitted documentary evidence that he bought a bicycle and a 1986 Toyota car while in the United States on said dates 14 and that
he was issued by the State of California Driver's License No. A8818707 on June 14, 1991. 15 Petitioner Webb likewise submitted the
letter dated July 25, 1995 of Mr. Robert Heafner, Legal Attache of the US Embassy, citing certain records tending to confirm, among
others, his arrival at San Francisco, California on March 9, 1991 as a passenger in United Airlines Flight No. 808.

The other respondents — Hospicio "Pyke" Fernandez, Michael Gatchalian, Antonio "Tony Boy" Lejano, Peter Estrada, Miguel
Rodriguez and Gerardo Biong — submitted sworn statements, responses, and a motion to dismiss denying their complicity in the rape-
killing of the Vizcondes. 16 Only the respondents Joey Filart and Artemio "Dong" Ventura failed to file their counter-affidavits though they
were served with subpoena in their last known address. 17 In his sworn statement, petitioner Gatchalian alleged that from 11 o'clock in
the evening of June 29, 1991 until 3 o'clock in the morning of the following day, he was at the residence of his friends, Carlos and
Andrew Syyap, at New Alabang Village, Muntinlupa watching video tapes. He claimed that his co-petitioner Lejano was with him.

On August 8, 1995, the DOJ Panel issued a 26-page Resolution "finding probable cause to hold respondents for trial" and
recommending that an Information for rape with homicide be filed against petitioners and their co-respondents, 18 On the same date, it
filed the corresponding Information 19 against petitioners and their co-accused with the Regional Trial Court of Parañaque. The case
was docketed as Criminal Case No. 95-404 and raffled to Branch 258 presided by respondent judge Zosimo V. Escano. It was,
however, the respondent judge Raul de Leon, pairing judge of Judge Escano, who issued the warrants of arrest against the petitioners.
On August 11, 1995, Judge Escano voluntarily inhibited himself from the case to avoid any suspicion about his impartiality considering
his employment with the NBI before his appointment to the bench. The case was re-raffled to Branch 274, presided by Judge Amelita
Tolentino who issued new warrants of arrest against the petitioners and their co-accused. On August 11, 1995, petitioner Webb
voluntarily surrendered to the police authorities at Camp Ricardo Papa Sr., in Bicutan, Taguig. Petitioners Gatchalian and Lejano
likewise gave themselves up to the authorities after filing their petitions before us.

In their petitions at bar, petitioners contend: (1) respondent Judges de Leon and Tolentino gravely abused their discretion when they
failed to conduct a preliminary examination before issuing warrants of arrest against them: (2) the DOJ Panel likewise gravely abused
its discretion in holding that there is probable cause to charge them with the crime of rape with homicide; (3) the DOJ Panel denied
them their constitutional right to due process during their preliminary investigation; and (4) the DOJ Panel unlawfully intruded into
judicial prerogative when it failed to charge Jessica Alfaro in the Information as an accused.

We find the petitions bereft of merit.

Petitioners fault the DOJ Panel for its finding of probable cause. They insist that the May 22, 1995 sworn statement of Jessica
Alfaro is inherently weak and uncorroborated. They hammer on alleged material inconsistencies between her April 28, 1995
and May 22, 1995 sworn statements. They assail her credibility for her misdescription of petitioner Webb's hair as semi-
blonde. They also criticize the procedure followed by the DOJ Panel when it did not examine witnesses to clarify the alleged
incredulities and inconsistencies in the sworn statements of the witnesses for the NBI.
 We start with a restatement of the purpose of a preliminary investigation. Section 1 of Rule 112 provides that a preliminary
investigation should determine " . . . whether there is a sufficient ground to engender a well-grounded belief that a crime
cognizable by the Regional Trial Court has been committed and that the respondent is probably guilty thereof, and should be
held for trial." Section 3 of the same Rule outlines the procedure in conducting a preliminary investigation, thus:

Sec. 3. Procedure. — Except as provided for in Section 7 hereof, no complaint or information for an offense
cognizable by the Regional Trial Court shall be filed without a preliminary investigation having been first conducted in
the following manner:

(a) The complaint shall state the known address of the respondent and be accompanied by affidavits of the
complainant and his witnesses as well as other supporting documents, in such number of copies as there are
respondents, plus two (2) copies for the official file. The said affidavits shall be sworn to before any fiscal, state
prosecutor or government official authorized to administer oath, or, in their absence or unavailability, a notary public,
who must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and
understood their affidavits.

(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss the same if he
finds no ground to continue with the inquiry, or issue a subpoena to the respondent, attaching thereto a copy of the
complaint, affidavits and other supporting documents. Within ten (10) days from receipt thereof, the respondent shall
submit counter-affidavits and other supporting documents. He shall have the right to examine all other evidence
submitted by the complainant.

(c) Such counter-affidavits and other supporting evidence submitted by the respondent shall also be sworn to and
certified as prescribed in paragraph (a) hereof and copies thereof shall be furnished by him to the complainant.

(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10)
day period, the investigating officer shall base his resolution on the evidence presented by the complainant.

(e) If the investigating officer believes that there are matters to be clarified, he may set a hearing to propound
clarificatory questions to the parties or their witnesses, during which the parties shall be afforded an opportunity to be
present but without the right to examine or cross-examine. If the parties so desire, they may submit questions to the
investigating officer which the latter may propound to the parties or witnesses concerned.

(f) Thereafter, the investigation shall be deemed concluded, and the investigating officer shall resolve the case within
ten (10) days therefrom. Upon the evidence thus adduced, the investigating officer shall determine whether or not
there is sufficient ground to hold the respondent for trial.

Section 4 of Rule 112 then directs that "if the investigating fiscal finds cause to hold the respondent for trial, he shall prepare
the resolution and corresponding information. He shall certify under oath that he, or as shown by the record, an authorized
officer, has personally examined the complainant and his witnesses, that there is reasonable ground to believe that a crime
has been committed and that the accused is probably guilty thereof . . ."

The need to find probable cause is dictated by the Bill of Rights which protects "the right of the people to be secure in their persons . . .
against unreasonable searches and seizures of whatever nature . . ." 20 An arrest without a probable cause is an unreasonable seizure
of a person, and violates the privacy of persons which ought not to be intruded by the State. 21 Probable cause to warrant arrest is not
an opaque concept in our jurisdiction. Continuing accretions of case law reiterate that they are facts and circumstances which would
lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested. 22
Other jurisdictions utilize the term man of reasonable caution 23 or the term ordinarily prudent and cautious man. 24 The terms are
legally synonymous and their reference is not to a person with training in the law such as a prosecutor or a judge but to the average
man on the street. 25 It ought to be emphasized that in determining probable cause, the average man weighs facts and circumstances
without resorting to the calibrations of our technical rules of evidence of which his knowledge is nil. Rather, he relies on the calculus of
common sense of which all reasonable men have an abundance.

Applying these basic norms, we are not prepared to rule that the DOJ Panel gravely abused its discretion when it found
probable cause against the petitioners. Petitioners belittle the truthfulness of Alfaro on two (2) grounds: (a) she allegedly
erroneously described petitioner Webb's hair as semi-blond and (b) she committed material inconsistencies in her two (2)
sworn statement, thus: 26

xxx xxx xxx

To illustrate, the following are some examples of inconsistencies in the two sworn statements of Alfaro:

On whether Alfaro knew Carmela before the incident in question

 First Affidavit: She had NOT met Carmela before June 29, 1991.

Second Affidavit: "I met her in a party sometime in February, 1991."

On whether Alfaro saw the dead bodies

First Affidavit: She did not see the three dead persons on that night. She just said "on the following
day I read in the newspaper that there were three persons who were killed . . ."

Second Affidavit: "I peeped through the first door on the left. I saw two bodies on top of the bed,
bloodied, and in the floor, I saw Hubert on top of Carmela."

On the alleged rape of Carmela Vizconde

First Affidavit: She did not see the act of rape.

Second Affidavit: She saw Hubert Webb "with bare buttocks, on top of Carmela and pumping, her
mouth gagged and she was moaning and I saw tears on her eyes."

On how Webb, Lejano, and Ventura entered the Vizconde house

First Affidavit: "by jumping over the fence, which was only a little more than a meter high."

Second Affidavit: They "entered the gate which was already open."

On whether Alfaro entered the Vizconde house

First Affidavit: She never entered the house.

Second Affidavit: "I proceeded to the iron grill gate leading to the dirty kitchen."

In its Resolution, the DOJ Panel ruled that these alleged misdescription and inconsistencies did not erode the credibility of
Alfaro. We quote the pertinent ruling, viz.: 27

xxx xxx xxx

As regards the admissibility of Alfaro's statements, granting for purposes of argument merely that she is a co-
conspirator, it is well to note that confessions of a co-conspirator may be taken as evidence to show the probability of
the co-conspirator's participation in the commission of the crime (see People vs. Lumahang, 94 Phil. 1084).

Furthermore, it is a well-established doctrine that conspiracy need not be proved by direct evidence of prior
agreement to commit the crime. Indeed, "only rarely would such a prior agreement be demonstrable since, in the
nature of things, criminal undertakings are only rarely documented by agreements in writing. Thus, conspiracy may
be inferred from the conduct of the accused before, during and after the commission of the crime, showing that the
several accused had acted in concert or in unison with each other, evincing a common purpose or design." (Angelo
vs. Court of Appeals, 210 SCRA 402 [1992], citations omitted; People vs. Molleda, 86 SCRA 699).

Neither can we discredit Alfaro merely because of the inconsistencies in her two sworn statements. In Angelo, the
Court refused to discredit the testimony of a witness accusing therein petitioner for the slaying of one Gaviano
Samaniego even though said witness failed to name Angelo in his affidavit which was executed five (5) months
earlier. Granting, the Court continued, that a part of the witness' testimony is untrue, such circumstance is not
sufficient to discredit the entire testimony of the witness.

On August 7, 1995, another counsel for respondent Webb submitted his memorandum suggesting that the instant
complaint "should not be decided within the month to give time to the NBI to coordinate with the FBI on the latter's
inquiry into the whereabouts of Hubert Webb . . . and to check on our U.S.-based witnesses."

In said memorandum, counsel for respondent Webb calls for the application of the maxim falsus in uno, falsus in
omnibus arising from the inconsistencies of Alfaro's statements, among others. This is untenable. As held in Angelo:

There is no rule of law which prohibits a court from crediting part of the testimony of a witness as
worthy of belief and from simultaneously rejecting other parts which the court may find incredible or
 dubious. The maxim falsus in uno, falsus in omnibus is not a rule of law, let alone a general rule of
law which is universally applicable. It is not a legal presumption either. It is merely a latinism
describing the conclusion reached by a court in a particular case after ascribing to the evidence
such weight or lack of weight that the court deemed proper.

In the case before us, complainant reasoned out that Alfaro was then having reservations when she first executed the
first statement and held back vital information due to her natural reaction of mistrust. This being so, the panel
believes that the inconsistencies in Alfaro's two sworn statements have been sufficiently explained especially
specially so where there is no showing that the inconsistencies were deliberately made to distort the truth.
Consequently, the probative value of Alfaro's testimony deserves full faith and credit. As it has been often noted, ex
parte statements are generally incomplete because they are usually executed when the affiant's state of mind does
not give her sufficient and fair opportunity to comprehend the import of her statement and to narrate in full the
incidents which transpired (People vs. Sarellana, 233 SCRA 31 [1994]; Angelo vs. Court of Appeals, supra). In the
case at bar, there is no dispute that a crime has been committed and what is clear before us is that the totality of the
evidence submitted by the complainant indicate a prima facie case that respondents conspired in the perpetration of
the imputed offense.

We note that the May 22, 1995 sworn statement of Alfaro was given with the assistance of counsel 28 and consists of six (6) pages, in
single space reciting in rich details how the crime was planned and then executed by the petitioners. In addition, the DOJ Panel
evaluated the supporting sworn statements of Nerissa Rosales and Mila Gaviola, former housemaids of the Webbs, Carlos J. Cristobal,
a passenger in United Airlines Flight No. 808 and Lolita Birrer, a paramour of Gerardo Biong. The Panel assayed their statements as
follows: 29

xxx xxx xxx

According to Nerissa E. Rosales, a former housemaid of the Webb family, on June 29, 1991, between 7:00 o'clock
and 8:00 o'clock in the evening, Hubert was at home inside his room with two male visitors. She knew it because she
and her co-housemaid, Loany, were instructed by Hubert to bring them three glasses of juice. It was the last time she
saw Hubert and was later told by then Congressman Webb that Hubert was in the United States.

While Mila S. Gaviola, another former housemaid of the Webb family and who served as a laundry woman, claims,
aside from corroborating the statement of Nerissa Rosales, that on June 30, 1991, she woke up at around 4:00 in the
morning and as what she used to do, she entered the rooms of the Webbs to get their clothes to be washed. As a
matter of fact, in that early morning, she entered Hubert's room and saw Hubert, who was only wearing his pants,
already awake and smoking while he was sitting on his bed. She picked up Hubert's scattered clothes and brought
them together with the clothes of the other members of the family to the laundry area. After taking her breakfast, she
began washing the clothes of the Webbs. As she was washing the clothes of Hubert Webb, she noticed fresh
bloodstains in his shirt. After she finished the laundry, she went to the servant's quarters. But feeling uneasy, she
decided to go up to the stockroom near Hubert's room to see what he was doing. In the said stockroom, there is a
small door going to Hubert's room and in that door there is a small opening where she used to see Hubert and his
friends sniffing on something. She observed Hubert was quite irritated, uneasy, and walked to and from inside his
room.

On that day, she noticed Hubert left the house at around 1:00 in the afternoon and came back at around 4:00 in the
same afternoon and went inside his room using the secret door of the house. It was the last time that she saw Hubert
until she left the Webb family.

On the other hand, Carlos J. Cristobal alleged that on March 9, 1991, at about 10:00 in the morning, he was at the
Ninoy Aquino International Airport as he was then scheduled to take the United Airlines Flight No. 808 at 2:00 in the
afternoon for New York. At the airport's lobby, he saw then Congressman Freddie Webb with a male companion. He
greeted him and Webb answered: "Mabuti naman, at ito, ihahatid ko ang anak ko papuntang Florida." He knew
Freddie Webb because he often watched him then in a television show "Chicks to Chicks." He observed that the man
whom Freddie Webb referred to as his son, was of the same height as Freddie. The son referred to has fair
complexion with no distinguishing marks on his face. He (son of Webb) was then wearing a striped white jacket.
When he and his children were already inside the plane, he did not see Freddie anymore, but he noticed his son was
seated at the front portion of the economy class. He never noticed Freddie Webb's son upon their arrival in San
Francisco. He claims that, while watching the television program "DONG PUNO LIVE" lately, he saw the wife of
Freddie Webb with her lawyer being interviewed, and when she described Hubert as "moreno" and small built, with a
height of five feet and seven inches tall, and who was the one who left for United States on March 9, 1991, he
nurtured doubts because such description does not fit the physical traits of the son of Freddie, who left with him for
United States on the same flight and date.

Lolita Birrer, alleged that she know Gerardo Biong because she had an affair with him for almost three (3) years and
in fact, she had a child with him who is now four (4) years old. Their relationship started in February, 1991 until she
broke up with him in September 1993. She recalls that on June 29, 1991, at around 6:00 p.m., Biong invited her to
play mahjong at the canteen of a certain Aling Glo located at the back of the Parañaque Municipal Hall.
 At about 2:30, in the early morning of January 30, 1991, the radio operator of the Parañaque police told Biong that he
has a phone call. Before Biong went to the radio room, she was instructed to take him over and after somebody won
the game, she followed Biong at the radio room where she overheard him uttering, "Ano?, Saan? Mahirap yan,
Paano, o sige, aantayin kita, O ano?, dilaw na taxi, o sige." When he put the phone down, Biong told her, "Mayroon
lang akong rerespondehan, ikaw muna ang maupo" and then, he went outside the canteen apparently waiting for
somebody. Twenty minutes later, a taxi, colored yellow, arrived with a male passenger sitting at the backseat and
parked near the canteen. After it made some signals by blinking its headlight, Biong rode thereat at the front seat
beside the driver and then, they left. She was not able to recognize the male passenger because the window of the
taxi was tinted. Biong came back at around 7:00 of the same morning and when he arrived, he immediately washed
his hands and face, and took his handkerchief from his pocket which he threw at the trash can. She asked him why
he threw his handkerchief and he answered, "Hmp . . . amoy tae." She inquired what happened in BF Homes and he
replied, "Putang inang mga batang iyon, pinahirapan nila ako."

Biong later invited her for breakfast, but they first went to his office where she observed him doing something in his
steel cabinet while he appeared to be uneasy. Moments later, Galvan, another policeman of Parañaque, arrived and
said, "Oy Biong, may tatlong patay sa BF, imbestigahan mo" to which Biong answered, "Oo susunod na ako." Biong
went to the office of Capt. Don Bartolome who offered to accompany him and with whom she asked permission to go
with them. Before they proceeded to the place where the killings happened, she asked Biong if he knew the exact
address and the latter immediately responded, "Alam ko na yon." She was surprised because Galvan never told him
the place of the incident.

As soon as they arrived at the Vizconde's residence, Biong instructed the housemaids to contact the victim's
relatives, while the security guard fetched the barangay chairman and the president of the Homeowners Association.
When all these persons were already in the house, Biong started recording the wounds of the victim. Inside the
master's bedroom, she saw Biong took a watch from the jewelry box. Because she could not tolerate the foul odor,
she and Capt. Bartolome went out of the room and proceeded to the dining area. On top of the dining table, she saw
the scattered contents of a shoulder bag. Moments later, Biong came out from the room and proceeded to the front
door to remove the chain lock; asked the keys from the housemaid and it was only then that the main door was
opened. Biong noticed a stone in front of the broken glass of the door and requested Capt. Bartolome to go inside the
servant's quarters as he doubted the housemaids' claim that they heard nothing unusual. Using the handle of his gun,
Biong broke the remaining glass of the door panel. Bartolome then came out of the room and told Biong that he can
hear the sound of the glass being broken. At the garage, Biong also noticed same marks on the hood of the car.

On the following day, at around 12:00 noon, Biong arrived in her house together with the Vizconde housemaids.
When Biong was preparing to take a bath, she saw him remove from his pocket the things she also saw from
Vizconde's residence, to wit: calling cards, driver's license, ATM card, a crossed check worth P80,000.00, earrings, a
ring, bracelet, necklace, and the watch he took from the jewelry box inside the room of the Vizcondes. These jewelry
items were later pawned by Biong for P20,000.00 at a pawnshop in front of Chow-Chow restaurant in Santos Avenue,
Parañaque. The next day, she saw Biong took from his locker at the Parañaque Police Station an imported brown
leather jacket, which the latter claimed to have been given to him by the person who called him up in the early
morning of June 30, 1991.

Since then, Biong has been wearing said jacket until they broke up sometime in 1993. She observed that Biong
seemed not interested in pursuing the investigation of the Vizconde case. In fact, when Biong and this group picked
up Mike Gatchalian and brought him to the Parañaque Police Station, she was surprised that Biong halted the
investigation when Gatchalian was profusely sweating while being interrogated. After the father of Gatchalian talked
to Colonel Pureza, the latter called up and instructed Biong to bring Gatchalian to him (Colonel Pureza) and that was
the last thing she remembered regarding this case.

The DOJ Panel then weighed these inculpatory evidence against the exculpatory evidence of petitioners. It ruled: 30

xxx xxx xxx

The voluminous number of exhibits submitted by respondent Webb to support his defense of denial and alibi
notwithstanding, the panel, after a careful and thorough evaluation of the records, believes that they cannot outweigh
the evidence submitted by the complainant. Alibi cannot prevail over the positive identification made by a prosecution
witness. Verily, alibi deserves scant consideration in the face of positive identification especially so where the claim of
alibi is supported mainly by friends and relatives (People vs. Apolonia, 235 SCRA 124 [1994]; People vs. Lucas, 181
SCRA 316 and a long line of cases).

Similarly, denial is a self-serving negative which cannot be given greater evidentiary weight than the declaration of a
credible witness who testified on affirmative matters (People vs. Carizo, 233 SCRA 687 [1994]). Indeed, denial, like
alibi, is weak and becomes even more weaker when arrayed against the positive identification by the witness for the
prosecution (People vs. Onpaid, 233 SCRA 62 [1994]).
 Surprisingly, Gatchalian's defense of alibi was not corroborated by Lejano, whom he claimed was with him watching
video tapes at the Syyap residence. Other than claiming that he "was not and could not have been at or near the area
of the Vizconde residence at the time of the alleged commission of the crime," respondent Lejano proffered no
evidence to substantiate his claim of alibi.

xxx xxx xxx

On the other hand, respondent Webb seeks to enhance the acceptability of his alibi in the form of documents tending
to show that he was thousands of miles away when the incident occurred. We have carefully deliberated and argued
on the evidence submitted by respondent Webb in support of his absence from the country since March 9, 1991 to
October 26, 1992 and found the same wanting to exonerate him of the offense charged. The material dates in this
case are June 29 and 30, 1991. While respondent Webb may have submitted proof tending to show that he was
issued a California driver's license on June 14, 1991, there is no showing that he could not have been in the country
on the dates above mentioned. Neither do we find merit in the allegation that respondent Webb personally bought a
bicycle on June 30, 1991 in California in view of his positive identification by Alfaro and the two (2) househelps of the
Webb family who testified that he was here in the country on said dates. Additionally, the issuance of receipt
evidencing the purchase of a bicycle in California is no conclusive proof that the name appearing thereon was the
actual buyer of the merchandise.

Given these conflicting pieces of evidence of the NBI and the petitioners, we hold that the DOJ Panel did not gravely abuse its
discretion when it found probable cause against the petitioners. A finding of probable cause needs only to rest on evidence
showing that more likely than not a crime has been committed and was committed by the suspects. Probable cause need not
be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and
definitely, not on evidence establishing absolute certainty of guilt. As well put in Brinegar v. United States, 31 while probable
cause demands more than "bare suspicion," it requires "less than evidence which would justify . . . conviction." A finding of
probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt.

Considering the low quantum and quality of evidence needed to support a finding of probable cause, we also hold that the
DOJ Panel did not, gravely abuse its discretion in refusing to call the NBI witnesses for clarificatory questions. The decision to
call witnesses for clarificatory questions is addressed to the sound discretion of the investigator and the investigator alone. If
the evidence on hand already yields a probable cause, the investigator need not hold a clarificatory hearing. To repeat,
probable cause merely implies probability of guilt and should be determined in a summary manner. Preliminary investigation is
not a part of trial and it is only in a trial where an accused can demand the full exercise of his rights, such as the right to
confront and cross-examine his accusers to establish his innocence. In the case at bar, the DOJ Panel correctly adjudged that
enough evidence had been adduced to establish probable cause and clarificatory hearing was unnecessary.

II

We now come to the charge of petitioners that respondent Judge Raul de Leon and, later, respondent Judge Amelita Tolentino
issued warrants of arrest against them without conducting the required preliminary examination. Petitioners support their
stance by highlighting the following facts: (1) the issuance of warrants of arrest in a matter of few hours; (2) the failure of said
judges to issue orders of arrest; (3) the records submitted to the trial court were incomplete and insufficient from which to base
a finding of probable cause; and (4) that even Gerardo Biong who was included in the Information as a mere accessory had a
"NO BAIL" recommendation by the DOJ Panel. Petitioners postulate that it was impossible to conduct a "searching
examination of witnesses and evaluation of the documents" on the part of said judges.

The issuance of a warrant of arrest interferes with individual liberty and is regulated by no less than the fundamental law of the
land. Section 2 of Article III of the Constitution provides:

Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant
of arrest shall issue except upon probable cause to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce and particularly describing the place to be
searched and the persons or things to be seized.

The aforequoted provision deals with the requirements of probable cause both with respect to issuance of warrants of arrest or
search warrants. The similarities and differences of their requirements ought to be educational. Some of them are pointed out
by Professors LaFave and Israel, thus: 32 "It is generally assumed that the same quantum of evidence is required whether one
is concerned with probable cause to arrest or probable cause to search. But each requires a showing of probabilities as to
somewhat different facts and circumstances, and thus one can exist without the other. In search cases, two conclusions must
be supported by substantial evidence: that the items sought are in fact seizable by virtue of being connected with criminal
activity, and that the items will be found in the place to be searched. It is not also necessary that a particular person be
implicated. By comparison, in arrest cases there must be probable cause that a crime has been committed and that the person
to be arrested committed it, which of course can exist without any showing that evidence of the crime will be found at premises
under that person's control." Worthy to note, our Rules of Court do not provide for a similar procedure to be followed in the
issuance of warrants of arrest and search warrants. With respect to warrants of arrest, section 6 of Rule 112 simply provides
that "upon filing of an information, the Regional Trial Court may issue a warrant for the arrest of the accused." In contrast, the
procedure to be followed in issuing search warrants is more defined. Thus, Sections 3, 4 and 5 of Rule 126 provide:

xxx xxx xxx

Sec. 3. Requisites for issuing search warrant. — A search warrant shall not issue but upon probable cause in
connection with one specific offense to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be
searched and the things to be seized.

Sec. 4. Examination of complainant; record. — The judge must, before issuing the warrant, personally examine in the
form of searching questions and answers, in writing and under oath the complainant and any witnesses he may
produce on facts personally known to them and attach to the record their sworn statements together with any
affidavits submitted.

Sec. 5. Issuance and form of search warrant. — If the judge is thereupon satisfied of the facts upon which the
application is based, or that there is probable cause to believe that they exist, he must issue the warrant, which must
be substantially in the form prescribed by these Rules.

We discussed the difference in the Procedure of issuing warrants of arrest and search warrants in Soliven vs. Makasiar, 33
thus:

xxx xxx xxx

The second issue, raised by Beltran, calls for an interpretation of the constitutional provision on the issuance of
warrants of arrest. The pertinent provision reads:

Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or affirmation of the complainant
and the witnesses he may produce, and particularly describing the place to be searched and the
persons or things to be seized.

The addition of the word "personally" after the word "determined" and the deletion of the grant of authority by the
1973 Constitution to issue warrants to "other responsible officers as may be authorized by law," has apparently
convinced petitioner Beltran that the Constitution now requires the judge to personally examine the complainant and
his witnesses in his determination of probable cause for the issuance of warrants of arrest. This is not an accurate
interpretation.

What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself
of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a
warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following
established doctrine and procedure, he shall: (1) personally evaluate the report and the documents submitted by the
fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant; or (2) if on the basis
thereof he finds no probable cause, he may disregard the fiscal's report and require the submission of supporting
affidavits of witnesses to aid him in arriving at a conclusions as to the existence of probable cause.

Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary examination and
investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts.

Clearly then, the Constitution, the Rules of Court, and our case law 34 repudiate the submission of petitioners that respondent
judges should have conducted "searching examination of witnesses" before issuing warrants of arrest against them. They also
reject petitioners' contention that a judge must first issue an order of arrest before issuing a warrant of arrest. There is no law
or rule requiring the issuance of an Order of Arrest prior to a warrant of arrest.

In the case at bar, the DOJ Panel submitted to the trial court its 26-page report, the two (2) sworn statements of Alfaro and the
sworn statements of Carlos Cristobal and Lolita Birrer 35 as well as the counter-affidavits of the petitioners. Apparently, the
painstaking recital and analysis of the parties' evidence made in the DOJ Panel Report satisfied both judges that there is
probable cause to issue warrants of arrest against petitioners. Again, we stress that before issuing warrants of arrest, judges
merely determine personally the probability, not the certainty of guilt of an accused. In doing so, judges do not conduct a de
novo hearing to determine the existence of probable cause. They just personally review the initial determination of the
prosecutor finding a probable cause to see if it is supported by substantial evidence. The sufficiency of the review process
cannot be measured by merely counting minutes and hours. The fact that it took the respondent judges a few hours to review
and affirm the probable cause determination of the DOJ Panel does not mean they made no personal evaluation of the
evidence attached to the records of the case. 36

Petitioners' reliance on the case of Allado vs. Diokno 37 is misplaced. Our Allado ruling is predicated on the utter failure of the
evidence to show the existence of probable cause. Not even the corpus delicti of the crime was established by the evidence of
the prosecution in that case. Given the clear insufficiency of the evidence on record, we stressed the necessity for the trial
judge to make a further personal examination of the complainant and his witnesses to reach a correct assessment of the
existence or non-existence of probable cause before issuing warrants of arrest against the accused. The case at bar, however,
rests on a different factual setting. As priorly discussed, the various types of evidence extant in the records of the case provide
substantial basis for a finding of probable cause against the petitioner. The corpus delicti of the crime is a given fact. There is
an eyewitness account of the imputed crime given by Alfaro. The alibi defense of petitioner Webb is also disputed by sworn
statements of their former maids. It was therefore unnecessary for the respondent judges to take the further step of examining
ex parte the complainant and their witnesses with searching questions.

III

Petitioners also complain about the denial of their constitutional right to due process and violation of their right to an impartial
investigation. They decry their alleged hasty and malicious prosecution by the NBI and the DOJ Panel. They also assail the
prejudicial publicity that attended their preliminary investigation.

We reject these contentions. The records will show that the DOJ Panel did not conduct the preliminary investigation with
indecent haste. Petitioners were given fair opportunity to prove lack of probable cause against them. The fairness of this
opportunity is well stressed in the Consolidated Comment of the Solicitor General, viz.:

Again, there is no merit in this contention. Petitioners were afforded all the opportunities to be heard. Petitioner Webb
actively participated in the preliminary investigation by appearing in the initial hearing held on June 30, 1995 and in
the second hearing on July 14, 1995; and by filing a "Motion for Production and Examination of Evidence and
Documents" on June 27, 1995 (p. 4, Petition), a "Reply to the compliance and Comment/Manifestation to the Motion
for Production and Examination of Evidence" on July 5, 1995 (p. 6, Petition), a "Comment and Manifestation" on July
7, 1995 (p. 6, Petition), his "Counter-Affidavit" on July 14, 1995 (pp. 6-7, Petition) and a "Motion to Resolve" on
August 1, 1995. Numerous letter-requests were also sent by the petitioner Webb's counsel to the DOJ Panel
requesting the latter to furnish him a copy of the reports prepared by the FBI concerning the petitioner's whereabouts
during the material period (Annexes "L", "L-1" and "L-2" of the Supplemental Petition dated August 14, 1995). In fact,
not satisfied with the decision of the DOJ Panel not to issue subpoena duces tecum to Atty. Arturo L. Mercader, Jr.,
petitioner Webb filed a "Petition for Injunction, Certiorari, Prohibition and Mandamus" with the Regional Trial Court,
Branch 63 of Makati in order to compel said Atty. Mercader, Jr. to produce the first sworn statement of Alfaro for
submission to the DOJ Panel. (p. 4, Petition) The said court dismissed the petition after Mercader produced and
submitted to the DOJ Panel the first sworn statement of Alfaro, without ruling on the admissibility and credence of the
two (2) conflicting and inconsistent sworn statements of the principal witness, Alfaro. (Attached hereto is a copy of the
order of Judge Ruben A. Mendiola, RTC-Makati, Branch 63 dated July 28, 1995) marked as Annex "F."

It must also be pointed out that despite the declaration by the DOJ Panel that the preliminary investigation was to be
terminated after the hearing held on July 14, 1995, the panel continued to conduct further proceedings, e.g.
comparison of the photo-copies of the submitted documents with the originals on July 17, 1995. (p. 7, Petition) The
panel even entertained the "Response" submitted by accused Miguel Rodriguez on July 18, 1995. (p. 17 Resolution)
In addition to these, the panel even announced that any party may submit additional evidence before the resolution of
the case. (p. 8, Petition) From the time the panel declared the termination of the preliminary investigation on July 14,
1995, twenty-seven (27) days elapsed before the resolution was promulgated, and the information eventually filed in
the Regional Trial Court of Parañaque on August 10, 1995. This notwithstanding the directive of Section 3(f) Rule 112
of the Revised Rules of Court that the investigating officer shall resolve the case within ten (10) days from the
termination of the preliminary investigation. The DOJ Panel precisely allowed the parties to adduce more evidence in
their behalf and for the panel to study the evidence submitted more fully. This directly disputes the allegation of the
petitioners that the resolution was done with indecent haste in violation of the rights of the petitioners. During the
period of twenty-seven (27) days, the petitioners were free to adduce and present additional evidence before the DOJ
Panel.

Verily, petitioners cannot now assert that they were denied due process during the conduct of the preliminary
investigation simply because the DOJ Panel promulgated the adverse resolution and filed the Information in court
against them.

Petitioners cannot also assail as premature the filing of the Information in court against them for rape with homicide on the
ground that they still have the right to appeal the adverse resolution of the DOJ Panel to the Secretary of Justice. The filing of
said Information is in accord with Department of Justice Order No. 223, series of 1993, dated June 25, 1993. We quote its
pertinent sections, viz.:
 Sec. 4. Non-Appealable Cases; Exceptions. — No appeal may be taken from a resolution of the Chief State
Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor finding probable cause except upon showing of
manifest error or grave abuse of discretion. Notwithstanding the showing of manifest error or grave abuse of
discretion, no appeal shall be entertained where the appellant had already been arraigned. If the appellant is
arraigned during the pendency of the appeal, said appeal shall be dismissed motu propio by the Secretary of Justice.

An appeal/motion for reinvestigation from a resolution finding probable cause, however, shall not hold the filing of the
information in court.

Sec. 2. When to appeal. — The appeal must be filed within a period of fifteen (15) days from receipt of the questioned
resolution by the party or his counsel. The period shall be interrupted only by the filing of a motion for reconsideration
within ten (10) days from receipt of the resolution and shall continue to run from the time the resolution denying the
motion shall have been received by the movant or his counsel. (Emphasis supplied)

Without doubt then, the said DOJ Order No. 223 allows the filing of an Information in court after the consummation of the
preliminary investigation even if the accused can still exercise the right to seek a review of the prosecutor's recommendation
with the Secretary of Justice.

Next, petitioners fault the DOJ Panel for not including Alfaro in the Information considering her alleged conspiratorial
participation in the crime of rape with homicide. The non-inclusion of Alfaro is anchored on Republic Act
No. 6981, entitled "An Act Providing For A Witness Protection, Security And Benefit Program And For Other Purposes"
enacted on April 24, 1991. Alfaro qualified under its Section 10, which provides:

xxx xxx xxx

Sec. 10. State Witness. — Any person who has participated in the commission of a crime and desires to a witness for
the State, can apply and, if qualified as determined in this Act and by the Department, shall be admitted into the
Program whenever the following circumstances are present:

(a) the offense in which his testimony will be used is a grave felony as defined under the R.P.C. or its equivalent
under special laws;
(b) there is absolute necessity for his testimony;
(c) there is no other direct evidence available for the proper prosecution of the offense committed;
(d) his testimony can be substantially corroborated on its material points;
(e) he does not appear to be most guilty; and
(f) he has not at anytime been convicted of any crime involving moral turpitude.

An accused discharged from an information or criminal complaint by the court in order that he may be a State
Witness pursuant to Sections 9 and 10 of Rule 119 of the Revised Rules of Court may upon his petition be admitted
to the Program if he complies with the other requirements of this Act. Nothing in this Act shall prevent the discharge
of an accused so that he can be used as a Witness under Rule 119 of the Revised Rules of Court.

Upon qualification of Alfaro to the program, Section 12 of the said law mandates her non-inclusion in the criminal Complaint or
Information, thus:

xxx xxx xxx

Sec. 12. Effect of Admission of a State Witness into the Program. — The certification of admission into the Program
by the Department shall be given full faith and credit by the provincial or city prosecutor who is required NOT TO
INCLUDE THE WITNESS IN THE CRIMINAL COMPLAINT OR INFORMATION and if included therein, to petition the
court for his discharge in order that he can be utilized as a State Witness. The court shall order the discharge and
exclusion of the said accused from the information.

Admission into the Program shall entitle such State Witness to immunity from criminal prosecution for the offense or
offenses in which his testimony will be given or used and all the rights and benefits provided under Section 8 hereof.

The validity of these provisions is challenged by petitioner Webb. It is urged that they constitute ". . . an intrusion into judicial
prerogative for it is only the court which has the power under the Rules on Criminal Procedure to discharge an accused as a
state witness." The argument is based on Section 9, Rule 119 38 which gives the court the prerogative to approve the discharge
of an accused to be a state witness. Petitioner's argument lacks appeal for it lies on the faulty assumption that the decision
whom to prosecute is a judicial function, the sole prerogative of courts and beyond executive and legislative interference. In
truth, the prosecution of crimes appertains to the executive department of government whose principal power and
responsibility is to see that our laws are faithfully executed. A necessary component of this power to execute our laws is the
right to prosecute their violators. The right to prosecute vests the prosecutor with a wide range of discretion — the discretion of
whether, what and whom to charge, the exercise of which depends on a smorgasbord of factors which are best appreciated by
prosecutors. We thus hold that it is not constitutionally impermissible for Congress to enact R.A. No. 6981 vesting in the
Department of Justice the power to determine who can qualify as a witness in the program and who shall be granted immunity
from prosecution. 39 Section 9 of Rule 119 does not support the proposition that the power to choose who shall be a state
witness is an inherent judicial prerogative. Under this provision, the court, is given the power to discharge a state witness only
because it has already acquired jurisdiction over the crime and the accused. The discharge of an accused is part of the
exercise of jurisdiction but is not a recognition of an inherent judicial function. Moreover, the Rules of Court have never been
interpreted to be beyond change by legislation designed to improve the administration of our justice system. R.A. No. 6981 is
one of the much sought penal reform laws to help government in its uphill fight against crime, one certain cause of which is the
reticence of witnesses to testify. The rationale for the law is well put by the Department of Justice, viz.: "Witnesses, for fear of
reprisal and economic dislocation, usually refuse to appear and testify in the investigation/prosecution of criminal
complaints/cases. Because of such refusal, criminal complaints/cases have been dismissed for insufficiency and/or lack of
evidence. For a more effective administration of criminal justice, there was a necessity to pass a law protecting witnesses and
granting them certain rights and benefits to ensure their appearance in investigative bodies/courts." 40 Petitioner Webb's
challenge to the validity of R.A. No. 6981 cannot therefore succeed.

Further, petitioners charge the NBI with violating their right to discovery proceedings during their preliminary investigation by
suppressing the April 28, 1995 original copy of the sworn statement of Alfaro and the FBI Report. The argument is novel in this
jurisdiction and as it urges an expansive reading of the rights of persons under preliminary investigation it deserves serious
consideration. To start with, our Rules on Criminal Procedure do not expressly provide for discovery proceedings during the
preliminary investigation stage of a criminal proceeding. 41 Sections 10 and 11 of Rule 117 do provide an accused the right to
move for a bill of particulars and for production or inspection of material evidence in possession of the prosecution. 42 But these
provisions apply after the filing of the Complaint or Information in court and the rights are accorded to the accused to assist
them to make an intelligent plea at arraignment and to prepare for trial. 43

This failure to provide discovery procedure during preliminary investigation does not, however, negate its use by a person
under investigation when indispensable to protect his constitutional right to life, liberty and property. Preliminary investigation is
not too early a stage to guard against any significant erosion of the constitutional right to due process of a potential accused.
As aforediscussed, the object of a preliminary investigation is to determine the probability that the suspect committed a crime.
We hold that the finding of a probable cause by itself subjects the suspect's life, liberty and property to real risk of loss or
diminution. In the case at bar, the risk to the liberty of petitioners cannot be understated for they are charged with the crime of
rape with homicide, a non-bailable offense when the evidence of guilt is strong.

Attuned to the times, our Rules have discarded the pure inquisitorial system of preliminary investigation. Instead, Rule 112
installed a quasi-judicial type of preliminary investigation conducted by one whose high duty is to be fair and impartial. 44 As
this Court emphasized in Rolito Go vs. Court of Appeals, 45 "the right to have a preliminary investigation conducted before
being bound over for trial for a criminal offense, and hence formally at risk of incarceration or some other penalty, is not a mere
formal or technical right; it is a substantive right." A preliminary investigation should therefore be scrupulously conducted so
that the constitutional right to liberty of a potential accused can be protected from any material damage. We uphold the legal
basis of the right of petitioners to demand from their prosecutor, the NBI, the original copy of the April 28, 1995 sworn
statement of Alfaro and the FBI Report during their preliminary investigation considering their exculpatory character, and
hence, unquestionable materiality to the issue of their probable guilt. The right is rooted on the constitutional protection of due
process which we rule to be operational even during the preliminary investigation of a potential accused. It is also implicit in
section (3) (a) of Rule 112 which requires during the preliminary investigation the filing of a sworn complaint, which shall ". . .
state the known address of the respondent and be accompanied by affidavits of the complainant and his witnesses as well as
other supporting documents . . ."

In laying down this rule, the Court is not without enlightened precedents from other jurisdictions. In the 1963 watershed case of
Brady v. Maryland 46 the United States Supreme Court held that "suppression of evidence favorable to an accused upon
request violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of
the prosecution." Its progeny is the 1935 case of Mooney v. Holohan 47 which laid down the proposition that a prosecutor's
intentional use of perjured testimony to procure conviction violates due process. Thus, evolved jurisprudence firming up the
prosecutor's duty to disclose to the defense exculpatory evidence in its possession. 48 The rationale is well put by Justice
Brennan in Brady 49 — "society wins not only when the guilty are convicted but when criminal trials are fair." Indeed,
prosecutors should not treat litigation like a game of poker where surprises can be sprung and where gain by guile is not
punished.

But given the right of petitioners to compel the NBI to disclose exculpatory evidence in their favor, we are not prepared to rule
that the initial non-production of the original sworn statement of Alfaro dated April 28, 1995 could have resulted in the
reasonable likelihood that the DOJ Panel would not have found probable cause. To be sure, the NBI, on July 4, 1995, upon
request of petitioners, submitted a photocopy of Alfaro's April 28, 1995 sworn statement. It explained it cannot produce the
original as it had been lost. Fortunately, petitioners, on July 28, 1995, were able to obtain a copy of the original from Atty.
Arturo Mercader in the course of the proceedings in Civil Case No. 951099. 50 As petitioners admit, the DOJ Panel accepted
the original of Alfaro's April 28, 1995 sworn statement as a part of their evidence. 51 Petitioners thus had the fair chance to
explain to the DOJ Panel then still conducting their preliminary investigation the exculpatory aspects of this sworn statement.
Unfortunately for petitioners, the DOJ Panel still found probable cause to charge them despite the alleged material
discrepancies between the first and second sworn statements of Alfaro. For reasons we have expounded, this finding of
probable cause cannot be struck down as done with grave abuse of discretion. 52 On the other hand, the FBI Report while
corroborative of the alibi of petitioner Webb cannot by itself reverse the probable cause finding of the DOJ Panel in light of the
totality of evidence presented by the NBI.

Finally, we come to the argument of petitioner that the DOJ Panel lost its impartiality due to the prejudicial publicity waged in
the press and broadcast media by the NBI.

Again, petitioners raise the effect of prejudicial publicity on their right to due process while undergoing preliminary
investigation. We find no procedural impediment to its early invocation considering the substantial risk to their liberty while
undergoing a preliminary investigation.

In floating this issue, petitioners touch on some of the most problematic areas in constitutional law where the conflicting
demands of freedom of speech and of the press, the public's right to information, and an accused's right to a fair and impartial
trial collide and compete for prioritization. The process of pinpointing where the balance should be struck has divided men of
learning as the balance keeps moving either on the side of liberty or on the side of order as the tumult of the time and the
welfare of the people dictate. The dance of balance is a difficult act to follow.

In democratic settings, media coverage of trials of sensational cases cannot be avoided and oftentimes, its excessiveness has
been aggravated by kinetic developments in the telecommunications industry. For sure, few cases can match the high volume
and high velocity of publicity that attended the preliminary investigation of the case at bar. Our daily diet of facts and fiction
about the case continues unabated even today. Commentators still bombard the public with views not too many of which are
sober and sublime. Indeed, even the principal actors in the case — the NBI, the respondents, their lawyers and their
sympathizers — have participated in this media blitz. The possibility of media abuses and their threat to a fair trial
notwithstanding, criminal trials cannot be completely closed to the press and the public. In the seminal case of Richmond
Newspapers, Inc. v. Virginia, 53 it was wisely held:

xxx xxx xxx

(a) The historical evidence of the evolution of the criminal trial in Anglo-American justice demonstrates conclusively
that at the time this Nation's organic laws were adopted, criminal trials both here and in England had long been
presumptively open, thus giving assurance that the proceedings were conducted fairly to all concerned and
discouraging perjury, the misconduct of participants, or decisions based on secret bias or partiality. In addition, the
significant community therapeutic value of public trials was recognized: when a shocking crime occurs, a community
reaction of outrage and public protest often follows, and thereafter the open processes of justice serve an important
prophylactic purpose, providing an outlet for community concern, hostility, and emotion. To work effectively, it is
important that society's criminal process "satisfy the appearance of justice," Offutt v. United States, 348 US 11, 14, 99
L Ed 11, 75 S Ct 11, which can best be provided by allowing people to observe such process. From this unbroken,
uncontradicted history, supported by reasons as valid today as in centuries past, it must be concluded that a
presumption of openness inheres in the very nature of a criminal trial under this Nation's system of justice, Cf., e.g.,
Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.

(b) The freedoms of speech, press, and assembly, expressly guaranteed by the First Amendment, share a common
core purpose of assuring freedom of communication on matters relating to the functioning of government. In
guaranteeing freedoms such as those of speech and press, the First Amendment can be read as protecting the right
of everyone to attend trials so as to give meaning to those explicit guarantees; the First Amendment right to receive
information and ideas means, in the context of trials, that the guarantees of speech and press, standing alone,
prohibit government from summarily closing courtroom doors which had long been open to the public at the time the
First Amendment was adopted. Moreover, the right of assembly is also relevant, having been regarded not only as an
independent right but also as a catalyst to augment the free exercise of the other First Amendment rights with which it
was deliberately linked by the draftsmen. A trial courtroom is a public place where the people generally — and
representatives of the media — have a right to be present, and where their presence historically has been thought to
enhance the integrity and quality of what takes place.

(c) Even though the Constitution contains no provision which by its terms guarantees to the public the right to attend
criminal trials, various fundamental rights, not expressly guaranteed, have been recognized as indispensable to the
enjoyment of enumerated rights. The right to attend criminal trials is implicit in the guarantees of the First
Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects
of freedom of speech and of the press could be eviscerated.

Be that as it may, we recognize that pervasive and prejudicial publicity under certain circumstances can deprive an accused of
his due process right to fair trial. Thus, in Martelino, et al. vs. Alejandro, et al., 54 we held that to warrant a finding of prejudicial
publicity there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the
barrage of publicity. In the case at bar, we find nothing in the records that will prove that the tone and content, of the publicity
that attended the investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel. Petitioners cannot
just rely on the subliminal effects of publicity on the sense of fairness of the DOJ Panel, for these are basically unbeknown and
beyond knowing. To be sure, the DOJ Panel is composed of an Assistant Chief State Prosecutor and Senior State
Prosecutors. Their long experience in criminal investigation is a factor to consider in determining whether they can easily be
blinded by the klieg lights of publicity. Indeed, their 26-page Resolution carries no indubitable indicia of bias for it does not
appear that they considered any extra-record evidence except evidence properly adduced by the parties. The length of time
the investigation was conducted despite its summary nature and the generosity with which they accommodated the discovery
motions of petitioners speak well of their fairness. At no instance, we note, did petitioners seek the disqualification of any
member of the DOJ Panel on the ground of bias resulting from their bombardment of prejudicial publicity.

It all remains to state that the Vizconde case will move to a more critical stage as petitioners will now have to undergo trial on
the merits. We stress that probable cause is not synonymous with guilt and while the light of publicity may be a good
disinfectant of unfairness, too much of its heat can bring to flame an accused's right to fair trial. Without imposing on the trial
judge the difficult task of supervising every specie of speech relating to the case at bar, it behooves her to be reminded of the
duty of a trial judge in high profile criminal cases to control publicity prejudicial to the fair administration of justice. 55 The Court
reminds judges that our ability to dispense impartial justice is an issue in every trial and in every criminal prosecution, the
judiciary always stands as a silent accused. More than convicting the guilty and acquitting the innocent, the business of the
judiciary is to assure fulfillment of the promise that justice shall be done and is done — and that is the only way for the judiciary
to get an acquittal from the bar of public opinion.

IN VIEW WHEREOF, the petitions are dismissed for lack of showing of grave abuse of discretion on the part of the
respondents. Costs against petitioners.

SO ORDERED.

Regalado, J., concurs.

Mendoza, J., concurs in the result.

Narvasa, C.J., is on leave

 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 130442 April 6, 2000

THE SUMMARY DISMISSAL BOARD AND THE REGIONAL APPELLATE BOARD, PNP, REGION VI, ILOILO CITY, petitioners,
vs.
C/INSP. LAZARO TORCITA, respondent.

GONZAGA-REYES, J.:

Before us is a Petition for Review by way of Certiorari of the Decision of the Court of Appeals 1 in CA-G.R. SP No. 43872, which set
aside the Decision of the Regional Director (RD) of the Philippine National Police (PNP) of Iloilo City, through its Summary Dismissal
Board (SDB), suspending herein respondent C/Insp. Lazaro Torcita from the service for twenty (20) days for "Simple Irregularity in the
Performance of Duty under Section 41 of R.A. 6975."

The antecedents are as follows:

On July 6, 1994, the following verified complaints were filed against C/Insp. Lazaro Torcita, herein respondent, by Manuel Puey, Jesus
Puey, Alex Edwin del Rosario:

1) Administrative Case Nr. SDHB "B6"-94-01- for Conduct Unbecoming of a Police Officer filed by Jesus H.
Puey in a complaint dated June 25, 1994;
2) Admin. Case Nr. SDHB "B6"-94-02- for Grave Threats filed by Jesus H. Puey;
3) Admin. Case Nr. SDHB "B6"-94-03 for Abuse of Authority and Illegal Search filed by Jesus H. Puey;
4) Admin. Case Nr. SDHB "B6"-94-04 for Abuse of Authority and Violation of Domicile filed by Jesus H.
Puey;
5) Admin. Case Nr. SDHB "B6"-94-05 for Abuse of Authority and Violation of COMELEC Gun Ban filed by
Jesus H. Puey;
6) Admin. Case Nr. SDHB "B6" -94-06 for Conduct Unbecoming of a Police Officer filed by Manuel H. Puey;
7) Admin. Case Nr. SDHB "B6" -94-07 for Illegal Search filed by Manuel H. Puey;
8) Admin. Case Nr. SDHB "B6" -94-08 for Grave Abuse of Authority and Violation of Domicile filed by
Manuel Puey;
9) Admin. Case Nr. SDHB "B6" -94-09 for Abuse of Authority and Violation of COMELEC Gun Ban filed by
Manuel Puey;
10) Admin. Case Nr. SDHB "B6" -94-10 for Conduct Unbecoming of a Police Officer filed by Alex Edwin del
Rosario;
11) Admin. Case Nr. SDHB "B6" -94-11 for Abuse of Authority and Grave Threats filed by Alex Edwin del
Rosario;
12) Admin. Case Nr. SDHB "B6" -94-12 for Abuse of Authority and Violation of COMELEC Gun Ban filed by
Alex Edwin del Rosario.

The twelve administrative complaints were the subject of administrative hearings before the Summary Dismissal Board of the PNP. At
the pre-trial, the parties and their respective counsels agreed that the twelve cases shall be consolidated into one "major complaint" for
"conduct unbecoming of a police officer" under Par. e, Sec. 3, Rule II, Memorandum Circular No. 92-006 pursuant to RA 6975 2. The
statement of the case by the Summary Dismissal Board is as follows:

That sometime last April 26, 1994, after attending the birthday party of Miss Jessie Vasquez Alex Edwin del
Rosario, together with Rosita Bistal, Carmen Braganza and Cristita Dawa boarded Mazda pick up with plate
nr. HHP-808 and driven by Reynaldo Consejo, proceeded towards the direction of Cadiz City.

While nearing Crossing Cadiz in the vicinity of Sitio Puting Tubig, the aforementioned Mazda pick-up driven
by Consejo overtook a red Cortina Ford driven by Major Lazaro Torcita; That on board the motor vehicle
driven by Torcita were three females sitted at the back;

That Major Lazaro Torcita signaled the passengers of the Mazda pick-up to stop, however, the driver of the
Mazda pick-up refused to abide by the signal and instead accelerated and proceeded to Hda. Aimee without
stopping.

That upon reaching Hda. Aimee Major Lazaro Torcita, entered the compound and was approached by two
persons in civilian clothes which prevented him from further proceeding; Moments after, the patrol car of
 Cadiz PNP arrived and together with Major Torcita, approached Jesus H. Puey and Alex Edwin del Rosario,
inquiring as to the identity of the persons who accosted him;

The complainants alleged that Major Torcita approached and entered the compound of Hda. Aimee, very
drunk, with back-up vehicle full of armed policemen, confronted Jesus H. Puey and Alex Edwin del Rosario
as who stopped him at the gate, shouting in a very, very loud voice, invectives and remarks;

That such act of Major Lazaro Torcita constitute Conduct Unbecoming of an Officer not worth of respect;

In his answer, the respondent, Lazaro R. Torcita, while admitting that he entered the premises of the
complainants, the same was done on a regular, lawful and proper way for he was in the performance of his
official duties in pursuing the suspect who committed a crime in his presence;

From the affidavits of the witnesses and testimonies presented by the complainants and the counter
affidavits and the counter testimonies of the respondent, the ISSUE before the Board is whether the
respondent is guilty of Conduct Unbecoming of a Police Officer under Republic Act 6975 as implemented by
Memorandum Circular 92-006 of the National Police Commission under Rule II Section 3, Paragraph C,
committed thru a series of illegal acts consisting of Grave Threats, Illegal Search, Abuse of Authority,
Violation of Domicile and Violation of COMELEC Gun Ban.

The complainant presented documentary evidence and witnesses Congressman Manuel Puey, Rosita Bistal, Alex
Edwin del Rosario and Reynaldo Consejo. Respondent Torcita testified in his behalf and presented Nehru Java, a
member of the PNP Cadiz, who was with him during the incident in question.

The Summary Dismissal Board made the following findings of facts:

That sometime last April 26, 1994, at about 10:30 in the evening, a red Cortina Ford, driven by C/Insp.
Lazaro H. Torcita, with his aide, PO2 Nehru Java, in the front seat and his wife with two ladies at the
backseat, were overtaken by a mazda pick-up, in the vicinity of Sitio Puting Tubig, about 10 kilometers from
crossing Cadiz, owned by Congressman Manuel Puey and driven Reynaldo Consejo with four (4)
passengers in the persons of Alex Edwin del Rosario, the executive assistant and financial analyst of
Congressman Puey, three (3) helpers employed under the Congressman, namely, Rosita Bistal, Carmen
Braganza and Cristina Dawa;

That both parties came from the Municipality of Victorias where they attended some social functions on the
occasion of the town fiesta;

After the mazda pick-up has overtaken the red Cortina Ford, it accelerated speed and proceeded to Hda.
Aimee, a sugarcane plantation in Cadiz City, also owned by Congressman Manuel Puey; The red Cortina
Ford followed also at high speed until it reached Hda. Aimee where C/Insp. Torcita and PO2 Java alighted
and the confrontation with Alex Edwin del Rosario and Jesus Puey, occurred;

The Complainant tried to establish the fact that nothing unusual occurred or transpired between the parties
in the vicinity of Sitio Puting Tubig and that Torcita has no business pursuing them; However the Board is
more inclined to give credence to the affidavits (exhibit 5 & 6) and the testimony of C/Insp. Torcita that a
vehicular collision almost took place due to reckless driving of the driver of the mazda pick-up;

That it was the duty inherent to the position as Chief of Police of Cadiz City and as deputy of the Land
Transportation Office to enforce traffic rules and regulation to prevent chaos and accidents in roads and
highways of the country (exhibit 13); This observation is further bolstered by the testimony of Reynaldo
Consejo, the driver of the mazda pick-up, that he was able to overtake the red Cortina Ford only after the
latter car hit the shoulder of the road and after overtaking he increased his speed (tsn page 131, August 30,
1994);

This sudden increase in speed of a driver involved in a vehicular accident is a classic move for one who
wants a fast get away from the scene, to escape responsibility;

Further, Alex Edwin del Rosario testified that upon reaching Hda. Aimee, he instructed the guard to be on
look-out for a car might be following them and might enter the compound (TSN page 70 August 30, 1994 ).
This conduct would show that witness is anticipating that red Cortina Ford would follow them because of the
incident in Sitio Puting Tubig which could have ended in a vehicular collision and finally no proof was
presented to show that no other reason exist as to why C/Insp. Torcita would pursue the Mazda pick up
other than near occurrence of a vehicular collision;
 The Complainant presented the Joint-Affidavit of Rosita Bistal and Reynaldo Consejo and the Affidavit of
Alex Edwin del Rosario, jointly taken, may be considered as proof that C/Insp. Torcita has committed act or
series of acts that would constitute Grave Threat, Illegal Search, Abuse of Authority, Violation of Domicile
and Violation of COMELEC Resolutions regarding the gun ban, thus CONDUCT UNBECOMING OF A
POLICE OFFICER;

That in the Joint-Affidavit of Rosita Bistal and Reynaldo Consejo (exhibit c; exhibit 2), Bistal attempted to
establish the fact that C/Insp. Torcita and PO2 Java illegally entered the gate of the compound but were
stopped by the guards armed with cane stick or batuta, however in her testimony given during the hearing
(tsn page 32, August 30, 1994) she stated that she did not know what transpired between the two men
approaching and the guards near the gate because she, together with her companions, were busy unloading
kitchen utensil from the pick-up to the kitchen and Consejo categorically stated that this portion of their
affidavit, specifically paragraph 7, is NOT TRUE; Alex Edwin del Rosario, in his testimony given in the
hearing, corroborated this fact that he also did not see or hear what happened for he was in some distance
away and he cannot see them clearly (TSN page 73, August 30, 1994);

The only piece of evidence presented in connection with the incident which happened near the gate of the
compound is the affidavit of C/Insp. Torcita and his testimony given in the hearing of the case that when he
was walking towards the compound together with his aide, PO2 Nehru Java, two armed civilian guards
stopped and threatened him; He identified himself however, the same had no effect, and PO2 Java
whispered that there are armed men around them and that it is dangerous for them to continue. That at this
point, they radioed for back-up; Since no proof to the contrary was presented by the Complainant nor was
there any witness or witnesses presented to rebut this allegations, the Board had no other choice except to
consider these allegations as proof; (Exhibit 5 & 6); The Board also resolve to take note that a metropolitan
newspaper with nationwide circulation and with unquestionable credential, had published a news item about
the presence of armed security personnel of Congressman Manuel Puey exhibit 14); This evidence give
more credence to the fact that there were really armed men in the premises where the aforementioned
incident happened; That this is corroborated further by the affidavit of PO2 Nehru Java (exhibit 17);

This observation of the Board that there were really armed men in the premises of Hda. Aimee, is further
enhance by the fact that Major Torcita felt their presence when he desisted from further entering the
compound, a feeling which was developed and nurtured by years of living under combat conditions and
finally the Board also feels that the presence of armed persons in the offices and properties of high
government officials is accepted as a necessary consequence for their protection due to the greater risks
they are expose to;

That because of the incident in Sitio Puting Tubig which was further aggravated by the confrontation near
the gate of the compound of Hda. Aimee, C/Insp. Torcita upon the arrival of the back-up force of PNP Cadiz
City, proceeded to the place where Capt. Jesus Puey and Alex Edwin del Rosario were; This fact is not
disputed by the parties;

xxx xxx xxx

Chief Insp. Lazaro Torcita does not deny having taken alcoholic drink; However, not to the point of
drunkness; The Board is more inclined to believe this allegation for no sane person will risks the life of a
member of his family by deliberately driving when he is mentally and physically incapable; Further, C/Insp.
Torcita was able to drive from Victorias to Cadiz City, a distance of forty kilometers, on a dark night and
raining and was able to avoid collision of the vehicles involved by sheer reflex action despite the admitted
fact that his tire hit the shoulder of the road;

Further, at the time Chief Inspector Torcita entered the compound he was fully aware of the presence of
armed men and reacted to this by exercising prudence while approaching the compound of Hda. Aimee; The
foregoing facts would show that C/Insp. Torcita was in full command of his senses and was not affected by
the numbing effect of alcohol for a drunk person does not show any caution and behaves irrationaly.

The Board did not find sufficient evidence to establish that Torcita threatened anybody with a gun, nor that a serious
confrontation took place between the parties. The Board also found that there was no sufficient evidence that the
urinating incident took place, and held that the charges of violation of domicile and illegal search were not proven.
The Board found that Lazaro Torcita was "in the performance of his official duties when the incident happened;
however, he committed a breach of internal discipline by taking alcoholic drinks while in the performance of same.
The dispositive portion of the decision of the Board reads:

WHEREFORE, in view of the foregoing, the Complaint for CONDUCT UNBECOMING OF A POLICE
OFFICER under Memo Cir. Nr. 92-006 pursuant to Sec. 42, RA 6975, be DISMISSED for lack of sufficient
evidence, however finds C/Insp. Lazaro R. Torcita to have committed SIMPLE IRREGULARITY IN THE
PERFORMANCE OF DUTY under Sec. 41, RA 6975, in relation to NAPOLCOM Memo Cir. Nr. 91-002 and
 is hereby ORDERED SUSPENDED for twenty days (20) and forfeiture of salary for the same period of time
effective upon receipt of this Decision under Rule 7, Section 2, Sub-par. b of the same Memo Circular.

Torcita appealed his conviction to the Regional Appellate Board of the PNP, Region VI, Iloilo City, but the appeal was dismissed for lack
of jurisdiction; Thus,

Under the applicable provisions of Section 45 of R. A. 6975, however, the disciplinary action imposed by the
Regional Director upon a PNP member shall be final and executory except those involving demotion in rank
or dismissal from the service. The appealed decision being that of suspension from the service with
corresponding forfeiture of pay only the same is not subject to review by this Board. 3

Whereupon, C/Insp. Torcita filed a petition for certiorari in the regional trial court of Iloilo City, Branch 31, questioning the legality of the
conviction of an offense for which he was not charged, "which conviction is a nullity because of the lack of procedural due process of
law."

Public respondent filed a motion to dismiss, which was denied. The regional trial court granted the petition for certiorari and annulled
the dispositive portion of the questioned decision insofar as it found Torcita guilty of simple irregularity in the performance of duty.

Public respondent appealed from the above-mentioned decision of the regional trial court, by petition of review to the Court of Appeals,
which affirmed the same for the reason that the respondent could not have been guilty of irregularity considering that "the twelve (12)
cases treated as Conduct Unbecoming of a Police Officer were eventually dismissed."

The instant petition for review on certiorari under Rule 45 seeks the reversal of the aforesaid decision of the Court of Appeals on the
following grounds:

1 THE OFFENSE OF "SIMPLE IRREGULARITY IN THE PERFORMANCE OF DUTY" IS NECESSARILY INCLUDED IN THE
CHARGE OF "CONDUCT UNBECOMING OF A POLICE OFFICER."

2 THE DECISION OF THE SUMMARY DISMISSAL BOARD (SDB) AND THE NAPOLCOM REGIONAL APPELLATE BOARD
HAS BECOME FINAL AND EXECUTORY. 4

The petitioners submit that the offense of "Conduct Unbecoming of a Police Officer" is broad enough to include any act of an officer
which tends to bring dishonor and disgrace to the PNP organization, and Simple Irregularity in the Performance of Duty is one act which
brings such disgrace and dishonor as contemplated by law. Moreover, the dismissal has become final and executory and the trial court
erred when it proceeded with the petition in violation of the doctrine of primary jurisdiction.

In his comment, respondent Torcita insists that his right to due process of law was "corrosively abridged and impaired", and pleads for
an affirmance of the decision of the Court of Appeals.

The appeal has no merit. The Court of Appeals did not err in affirming the decision of the trial court granting the petition for certiorari.

The administrative disciplinary machinery for dealing with complaints or charges against any member of the Philippine National Police
(PNP) is laid down in Republic Act No. 6975, otherwise known as the "Department of the Interior and Local Government Act of 1990."
This law defines the summary dismissal powers of the PNP Chief and Regional Directors, among others in cases, "where the
respondent is guilty of conduct unbecoming of a police officer." 5 Memorandum Circular No. 92-006 prescribes the "Rules and
Regulations in the conduct of summary dismissal proceedings against erring PNP members" and defines conduct unbecoming of a
police officer under Section 3 (c), Rule II, as follows:

"Conduct unbecoming of a police officer" refers to any behavior or action of a PNP member, irrespective of
rank, done in his official capacity, which, in dishonoring or otherwise disgracing himself as a PNP member,
seriously compromise his character and standing as a gentleman in such a manner as to indicate his vitiated
or corrupt state of moral character; it may also refer to acts or behavior of any PNP member in an unofficial
or private capacity which, in dishonoring or disgracing himself personally as a gentleman, seriously
compromises his position as a PNP member and exhibits himself as morally unworthy to remain as a
member of the organization.

On the other hand, the acts constituting "simple irregularity in the performance of duty" are defined in Memorandum Circular No. 91-
002. It is a light offense, incurred, among others, by a member of the PNP who shall, among others, be found to "have the odor or smell
of alcohol on his breath while on duty, or possess alcoholic beverages on his person, police vehicle, post or office." (Sec. 2. A, Rule VI).

As above-stated, the Summary Dismissal Board absolved the C/Insp. Torcita of the consolidated charge of "conduct unbecoming of a
police officer" but found him guilty of simple irregularity in the performance of duty under Sec. 41, R.A. No. 6975, in relation to
Napolcom Memorandum Circular No. 91-002 and imposed a penalty of suspension for twenty (20) days and forfeiture of salary for the
same period.
We are unable to sustain the theory of the petitioners that the definition of "conduct unbecoming of a police officer" as earlier granted, is
broad enough to include any act of an officer which tends to bring dishonor and disgrace to the PNP organization, and that there is "no
legal prohibition" which would prevent the Summary Dismissal Board from finding petitioner guilty of the lesser offense. While the
definition of the more serious offense is broad, and almost all-encompassing a finding of guilt for an offense, no matter how light, for
which one is not properly charged and tried cannot be countenanced without violating the rudimentary requirements of due process.

The series of twelve complaints filed against C/Insp. Torcita were solely based on the incident that occurred on April 26, 1994 at about
11:00 o'clock in the evening, wherein Torcita, who was off-duty and was in civilian clothes, riding in his private vehicle with members of
his family, chased another vehicle which overtook his car in a reckless manner and in violation of the Traffic Code; the hot pursuit
ended at the Hacienda Aimee, where he allegedly entered the place without lawful warrant and while inside, belligerently shouted
invectives, challenging everyone to a fight, pointed his gun at somebody and urinated in full view of the persons therein. The Dismissal
Board found the above charges unsubstantiated and held that Torcita was in the performance of official duty when the incidents
happened. "However, he committed breach of internal discipline by taking alcoholic drinks while in the performance of same."

It is glaringly apparent from a reading of the titles of the twelve administrative cases filed against C/Insp. Torcita, earlier quoted, that
none of the charges or offenses mentioned or made reference to the specific act of being drunk while in the performance of official duty.
The records do not bear out the specific acts or conduct constituting the charge/offense in the twelve cases which were consolidated at
the pre-hearing conference into a single case of "Conduct Unbecoming of a Police Officer." Thus, the Board defined the issue before
the Board as "whether the respondent is guilty of conduct unbecoming of a police officer under Republic Act 6975, as implemented by
Memorandum Circular No. 92-006 of the National Police Commission under Rule II, Section 3, Paragraph c, committed though a series
of illegal acts consisting of grave threats, illegal search, abuse of authority, violation of domicile or violation of Comelec Gunban."
Notably, there is no indication or warning at all in the summary dismissal proceedings that C/Insp. Torcita was also being charged with
breach of internal discipline consisting of taking alcoholic drinks while in the performance of his duties.

The omission is fatal to the validity of the judgment finding him guilty of the offense for which he was not notified nor charged. Summary
dismissal proceedings are governed by specific requirements of notification of the charges together with copies of affidavits and other
attachments supporting the complaints, and the filing of an answer, together with supporting documents. It is true that consistent with its
summary nature, the duration of the hearing is limited, and the manner of conducting the hearing is summary, in that sworn statements
may take the place of oral testimonies of witnesses, cross-examination is confined only to material and relevant matters, and prolonged
arguments and dilatory proceedings shall not be entertained. (Section 4, Memorandum Circular No. 92-006). However, notification of
the charges contemplates that respondent be informed of the specific charges against him. Torcita was entitled to know that he was
being charged with being drunk while in the performance of duty, so that he could traverse the accusation squarely and adduce
evidence in his defense. Although he was given an opportunity to be heard on the multiple and broad charges initially filed against him,
the absence of specification of the offense for which he was eventually found guilty is not a proper observance of due process. There
can be no short-cut to the legal process (Alonte vs. Savellano Jr., 287 SCRA 245).

It is a requirement of due process that the parties be informed of how the litigation was decided with an explanation of the factual and
legal reasons that led to the conclusions of the Court (ABD Overseas Manpower Corp. vs. NLRC, 286 SCRA 454). Memorandum
Circular No. 92-006 specifically prescribes that the decision shall contain "a brief statement of the material facts and the findings of the
summary dismissal authority as well as the disposition thereof" (Sec. 6). The cursory conclusion of the Dismissal Board that Torcita
"committed breach of internal discipline by taking drinks while in the performance of same" should have been substantiated by factual
findings referring to this particular offense. As it turned out, the dismissal Board believed his allegation that he was not drunk and found
that he was in full command of his senses where he tried to apprehend the driver of the maroon Mazda pick-up. Although Torcita did
not deny that he had taken a shot of alcoholic drink at the party which he attended before the incident, the records show that he was
then off-duty and the party was at the Municipality of Victorias, which was outside of his area of police jurisdiction. On the other hand,
the hot pursuit incident occurred while he was on in his way home to Cadiz City with the members of his family. As observed by the
Dismissal Board itself, the hot pursuit was motivated by the duty "inherent to the position as Chief of Police of Cadiz City and as Deputy
of the Land Transportation Office to enforce traffic rules and regulations, to prevent chaos and accidents in roads and highways"
(Decision, p. 76). The Court of Appeals correctly pointed out that even if he was prosecuted for irregular performance of duty, he could
not have been found to have the odor or smell of alcohol while in the performance of duty because he was not on duty at the time that
he had a taste of liquor; he was on a private trip fetching his wife.

Premises considered, we hold that the Court of Appeals correctly found that the decision of the petitioners Board was rendered without
or in excess of jurisdiction, as respondent Torcita was found guilty of an offense for which he was not properly charged. A decision is
void for lack of due process if, as a result, a party is deprived of the opportunity of being heard (Palu-ay vs. CA, 293 SCRA 358). A void
judgment never acquires finality (Heirs of Mayor Nemencio Galvez vs. CA 255 SCRA 672; Fortich vs. Corona, 298 SCRA 678). Hence,
aforementioned decision cannot be deemed to have become final and executory.

WHEREFORE, the assailed decision dated September l, 1997 of the Court of Appeals is AFFIRMED and the instant petition is
DISMISSED.

SO ORDERED.1âwphi1.nêt

Melo, Vitug, Panganiban and Purisima, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 170288 September 22, 2006

PEDRO E. BUDIONGAN, JR., Municipal Mayor; JOSIL E. TRABAJO, Municipal Vice Mayor and Presiding Officer of the
Sangguniang Bayan; FULGENCIO V. PAÑA, Municipal Treasurer; TACIANA B. ESPEJO, Municipal Budget Officer; and SB
Members: RUFINO G. ADLAON, TITO R. MONTAJES, MARIO M. SORIA, ALFONSO L. UNAJAN, CARLITO B. TORREFRANCA,
VICENTE A. TORREFRANCA, JR., etitioners,
vs.
HON. JACINTO M. DELA CRUZ, JR., Asst. Special Prosecutor I; HON. CORNELIO L. SONIDO, Acting Director, Prosecution
Bureau IV; HON. ROBERT E. KALLOS, Deputy Special Prosecutor; HON. DENNIS M. VILLA IGNACIO, The Special Prosecutor;
HON. WENDELL E. BARRERAS-SULIT, Acting Director, Case Assessment, Review and Re-investigation Bureau; and OFFICE
OF THE SPECIAL PROSECUTOR, public respondents.
VALERIANO U. NADALA, ARLENE PAINAGAN-PALGAN, private respondents.

DECISION

YNARES-SANTIAGO, J.:

This Petition for Certiorari under Rule 65 of the Rules of Court assails the Memorandum 1 dated April 28, 2004 of the Office of the
Special Prosecutor, Office of the Ombudsman, recommending that petitioners be charged with violation of Section 3(e) of Republic Act
(R.A.) No. 3019 and petitioner Pedro E. Budiongan with violation of Section 3(h) of R.A. No. 3019. Also assailed is the Resolution2
dated October 19, 2005 denying petitioners' motion for reconsideration.

The antecedent facts are as follows:

By virtue of Municipal Ordinance No. 2, series of 2001, the Municipality of Carmen, Bohol appropriated the amount of P450,000.00 for
the purchase of a road roller for the municipality. However, on November 16, 2001, the Municipal Development Council through
Resolution No. 3 recommended that the amount of P450,000.00 be realigned and used for the asphalt laying of a portion of the Tan
Modesto Bernaldez Street.3 The proposed realignment was included in the December 21, 2001 agenda of the Sangguniang Bayan of
Carmen but discussion thereon was deferred.

On February 6, 2002, petitioner Municipal Treasurer, Fulgencio V. Paña, issued a Certificate of Availability of Funds for the project.
Thereafter, the Office of the Municipal Engineer prepared a Program of Works and Cost Estimates duly noted/approved by Municipal
Budget Officer Taciana B. Espejo and Mayor Budiongan.

Bidding was conducted on March 5, 2002. The next day, March 6, 2002, Mayor Budiongan issued the Notice of Award and Notice to
Commence Work in favor of Herbert Malmis General Merchandise and Contractor, Inc. who emerged as the lowest complying bidder.
On March 22, 2002, the Sangguniang Bayan passed Resolution No. 60,4 series of 2002, authorizing Mayor Budiongan to sign and enter
into contract with Malmis relative to the above project in the amount of P339,808.00. With such authority, Malmis commenced with the
project.

Thereafter, it was discovered that there was yet no ordinance approving the realignment of the funds. Thus, on May 17, 2002, the
Sangguniang Bayan passed Ordinance No. 8,5 series of 2002, approving the realignment of the fund. On June 14, 2002, Malmis was
paid the contract price.

On July 3, 2002, private respondents Arlene P. Palgan and Valeriano U. Nadala filed a complaint6 against the petitioners before the
Office of the Deputy Ombudsman for Visayas alleging illegality in the conduct of the bidding, award and notice to commence work since
there was no fund appropriated for the purpose.

On July 31, 2003, the Office of the Deputy Ombudsman for Visayas found probable cause and recommended the filing of an
information for violation of Article 220 7 of the Revised Penal Code against the petitioners. However, the complaint against Hermosila
Logrono, Desiderio Gudia, Jr. and Herbert Malmis was dismissed for lack of merit.8

Upon review, the Case Assessment, Review and Reinvestigation Bureau of the Office of the Special Prosecutor, issued the assailed
Memorandum dated April 28, 2004, modifying the charge from violation of Article 220 of the Revised Penal Code to (1) violation of
Section 3(e) of R.A. No. 3019 against petitioners for allegedly giving unwarranted benefit to Malmis and (2) violation of Section 3(h) of
R.A. No. 3019 against petitioner Budiongan for allegedly "directly or indirectly having financial or pecuniary interest in a contract or
transaction in connection with which he intervenes or takes part in his official capacity."
Thus, two separate Informations were filed before the Sandiganbayan (1) for violation of Section 3(e) of R.A. No. 3019 against the
petitioners docketed as Criminal Case No. 28075 and (2) for violation of Section 3(h) of R.A. No. 3019 against petitioner Budiongan
docketed as Criminal Case No. 28076.

Thereafter, petitioners filed a Motion to Quash9 the information charging them with violation of Sec. 3(e) of R.A. No. 3019. In a
Resolution10 dated June 10, 2005, the Sandiganbayan granted the motion to quash and remanded Criminal Case No. 28075 to the
Office of the Ombudsman for amendment of the Information. It held that although Malmis benefited from the contract, the same is not
unwarranted considering that the project was implemented, executed and completed.

On June 27, 2005, an Amended Information11 was filed charging petitioners with violation of Sec. 3(e) of R.A. No. 3019, alleging that
petitioners, by prematurely awarding to Malmis the project despite the absence of funds specifically appropriated for such purpose, and
thereafter paying the contract price from the Municipal Treasury which was originally appropriated for the purchase of a road roller,
caused damage and undue injury to the government.

Finding that the Amended Information contains all the material averments necessary to make out a case for the first mode of violating
Section 3(e) of R.A. No. 3019, i.e., causing any undue injury to any party, including the government, the Sandiganbayan admitted the
Amended Information in its Resolution dated August 18, 2005.12

On even date, petitioners filed with the Sandiganbayan a Motion for Leave of Court to File Motion for Reinvestigation13 arguing that the
above Informations were filed without affording them the opportunity to file counter-affidavits to answer/rebut the modified charges. On
September 20, 2005, the Sandiganbayan issued a Resolution14 denying the motion insofar as Criminal Case No. 28076 is concerned. It
held that it is too late in the day to remand the case for reinvestigation considering that Budiongan had already been arraigned and the
case had long been set for pre-trial proceedings, with both parties having filed their respective briefs. As regards Criminal Case No.
28075, the Sandiganbayan noted that although the conduct of the preliminary investigation was regular, petitioners however were not
given the opportunity to seek reconsideration of the modified charges. Thus, it granted leave to the petitioners to file with the Office of
the Special Prosecutor a motion for reconsideration (not a motion for reinvestigation) of the said office's Memorandum dated April 28,
2004.

Petitioners filed a Motion for Reconsideration with the Office of the Special Prosecutor which was denied for lack of merit in the
Resolution dated October 19, 2005.

Hence, this petition raising the following issues:

I. WHETHER PUBLIC RESPONDENTS ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR IN
EXCESS OF JURISDICTION IN REJECTING THE FINDINGS AND AMENDING/MODIFYING THE RESOLUTION OF THE
GRAFT INVESTIGATING OFFICER, OMBUDSMAN VISAYAS, AND IN FILING THE INFORMATION FOR VIOLATION OF
SEC. 3(e) OF RA 3019 WITHOUT AFFORDING PETITIONERS THE OPPORTUNITY TO PRESENT THEIR COUNTER
EVIDENCE IN A RE-INVESTIGATION;

II. WHETHER THE REFUSAL OR FAILURE TO CONDUCT A RE-INVESTIGATION HAS VIOLATED PETITIONERS' RIGHT
TO DUE PROCESS;

III. WHETHER PUBLIC RESPONDENTS ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR IN
EXCESS OF JURISDICTION IN ISSUING RESOLUTIONS DATED APRIL 28, 2004 AND OCTOBER 19, 2005 FINDING
PROBABLE CAUSE FOR VIOLATION OF SEC. 3(e) OF RA 3019 AGAINST HEREIN PETITIONERS; and

IV. WHETHER PUBLIC RESPONDENTS ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR IN
EXCESS OF JURISDICTION IN FILING THE INFORMATION FOR VIOLATION OF SEC.3(e) OF RA 3019 AGAINST
PETITIONERS IN THE SANDIGANBAYAN DOCKETED AS CRIMINAL CASE NO. 28075.

Petitioners maintain that the modification of the charge from violation of Article 220 of the Revised Penal Code to violation of Sections
3(e) and 3(h) of R.A. No. 3019 denied their rights to due process since they were not given the opportunity to answer and present
evidence on the new charge in a preliminary investigation. Furthermore, the petitioners argue that public respondents committed grave
abuse of discretion amounting to lack or excess of jurisdiction in issuing the challenged resolutions finding probable cause for violation
of R.A. No. 3019.

The petition lacks merit.

The right to a preliminary investigation is not a constitutional right, but is merely a right conferred by statute. The absence of a
preliminary investigation does not impair the validity of the Information or otherwise render the same defective. It does not affect the
jurisdiction of the court over the case or constitute a ground for quashing the Information.15 If absence of a preliminary investigation
does not render the Information invalid nor affect the jurisdiction of the court over the case, then the denial of a motion for
reinvestigation cannot likewise invalidate the Information or oust the court of its jurisdiction over the case.
Petitioners were not deprived of due process because they were afforded the opportunity to refute the charges by filing their counter-
affidavits. The modification of the offense charged did not come as a surprise to the petitioners because it was based on the same set
of facts and the same alleged illegal acts. Moreover, petitioners failed to aver newly discovered evidence nor impute commission of
grave errors or serious irregularities prejudicial to their interest to warrant a reconsideration or reinvestigation of the case as required
under Section 8, Rule III of the Rules of Procedure of the Office of the Ombudsman. 16 Thus, the modification of the offense charged,
even without affording the petitioners a new preliminary investigation, did not amount to a violation of their rights.

Furthermore, the right to preliminary investigation is deemed waived when the accused fails to invoke it before or at the time of entering
a plea at arraignment.17 Petitioner Budiongan was arraigned in Criminal Case No. 28076 on March 28, 2005. He was also arraigned
together with the rest of the petitioners under the Amended Information in Criminal Case No. 28075 on December 2, 2005.

The purpose of a preliminary investigation is merely to determine whether a crime has been committed and whether there is probable
cause to believe that the person accused of the crime is probably guilty thereof and should be held for trial. 18 A finding of probable
cause needs only to rest on evidence showing that more likely than not a crime has been committed and was committed by the
suspect. Probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond
reasonable doubt and definitely, not on evidence establishing absolute certainty of guilt." 19

The Office of the Special Prosecutor is an integral component of the Ombudsman and is under the latter's supervision and control.
Thus, whatever course of action that the Ombudsman may take, whether to approve or to disapprove the recommendation of the
investigating prosecutor, is but an exercise of his discretionary powers based upon constitutional mandate. Generally, courts should not
interfere in such exercise. It is beyond the ambit of this Court to review the exercise of discretion of the Ombudsman in prosecuting or
dismissing a complaint filed before it, save in cases where there is clear showing of grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of the Ombudsman.20 Absent any showing of arbitrariness on the part of the prosecutor or any other
officer authorized to conduct preliminary investigation, as in the instant case, courts as a rule must defer to said officer's finding and
determination of probable cause, since the determination of the existence of probable cause is the function of the prosecutor.21

In fine, certiorari will not lie to invalidate the Office of the Special Prosecutor's resolution denying petitioners' motion for reconsideration
since there is nothing to substantiate petitioners' claim that it gravely abused its discretion in ruling that there was no need to conduct a
reinvestigation of the case.22

WHEREFORE, in view of the foregoing, the instant petition is DISMISSED. The assailed Memorandum of the Office of the Special
Prosecutor, Office of the Ombudsman, dated April 28, 2004 finding probable cause that petitioners violated Sections 3(e) and 3(h) of
Republic Act No. 3019 and the Resolution dated October 19, 2005 denying petitioners' Motion for Reconsideration, are hereby
AFFIRMED.

SO ORDERED.

Panganiban, Austria-Martinez, Callejo, Sr., Chico-Nazario, , J.J., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 84818 December 18, 1989

PHILIPPINE COMMUNICATIONS SATELLITE CORPORATION, petitioner,

vs.
JOSE LUIS A. ALCUAZ, as NTC Commissioner, and NATIONAL TELECOMMUNICATIONS COMMISSION,
respondents.

Rilloraza, Africa, De Ocampo & Africa for petitioner.

Victor de la Serna for respondent Alcuaz.

REGALADO, J.:

This case is posed as one of first impression in the sense that it involves the public utility services of the petitioner
Philippine Communications Satellite Corporation (PHILCOMSAT, for short) which is the only one rendering such services
in the Philippines.

The petition before us seeks to annul and set aside an Order 1 issued by respondent Commissioner Jose Luis Alcuaz of
the National Telecommunications Commission (hereafter, NTC), dated September 2, 1988, which directs the provisional
reduction of the rates which may be charged by petitioner for certain specified lines of its services by fifteen percent (15%)
with the reservation to make further reductions later, for being violative of the constitutional prohibition against undue
delegation of legislative power and a denial of procedural, as well as substantive, due process of law.

The antecedental facts as summarized by petitioner 2 are not in dispute. By virtue of Republic Act No. 5514,
PHILCOMSAT was granted "a franchise to establish, construct, maintain and operate in the Philippines, at such places as
the grantee may select, station or stations and associated equipment and facilities for international satellite
communications." Under this franchise, it was likewise granted the authority to "construct and operate such ground
facilities as needed to deliver telecommunications services from the communications satellite system and ground terminal
or terminals."

Pursuant to said franchise, petitioner puts on record that it undertook the following activities and established the following
installations:

1. In 1967, PHILCOMSAT established its provisional earth station in Pinugay, Rizal.

2. In 1968, earth station standard "A" antenna (Pinugay I) was established. Pinugay I provided direct
satellite communication links with the Pacific Ocean Region (the United States, Australia, Canada,
Hawaii, Guam, Korea, Thailand, China [PROC], New Zealand and Brunei) thru the Pacific Ocean
INTELSAT satellite.

3. In 1971, a second earth station standard "A" antenna(Pinugay III) was established. Pinugay II provided
links with the Indian Ocean Region (major cities in Europe, Middle East, Africa, and other Asia Pacific
countries operating within the region) thru the Indian Ocean INTELSAT satellite.

4. In 1983, a third earth station standard "B" antenna (Pinugay III) was established to temporarily assume
the functions of Pinugay I and then Pinugay II while they were being refurbished. Pinugay III now serves
as spare or reserved antenna for possible contingencies.

5. In 1983, PHILCOMSAT constructed and installed a standard "B" antenna at Clark Air Field, Pampanga
as a television receive-only earth station which provides the U.S. Military bases with a 24-hour television
service.
 6. In 1989, petitioner completed the installation of a third standard "A" earth station (Pinugay IV) to take
over the links in Pinugay I due to obsolescence. 3

By designation of the Republic of the Philippines, the petitioner is also the sole signatory for the Philippines in the
Agreement and the Operating Agreement relating to the International Telecommunications Satellite Organization
(INTELSAT) of 115 member nations, as well as in the Convention and the Operating Agreement of the International
Maritime Satellite Organization (INMARSAT) of 53 member nations, which two global commercial telecommunications
satellite corporations were collectively established by various states in line with the principles set forth in Resolution 1721
(XVI) of the General Assembly of the United Nations.

Since 1968, the petitioner has been leasing its satellite circuits to:

1. Philippine Long Distance Telephone Company;

2. Philippine Global Communications, Inc.;

3. Eastern Telecommunications Phils., Inc.;

4. Globe Mackay Cable and Radio Corp. ITT; and

5. Capitol Wireless, Inc.

or their predecessors-in-interest. The satellite services thus provided by petitioner enable said international carriers to
serve the public with indispensable communication services, such as overseas telephone, telex, facsimile, telegrams, high
speed data, live television in full color, and television standard conversion from European to American or vice versa.

Under Section 5 of Republic Act No. 5514, petitioner was exempt from the jurisdiction of the then Public Service
Commission, now respondent NTC. However, pursuant to Executive Order No. 196 issued on June 17, 1987, petitioner
was placed under the jurisdiction, control and regulation of respondent NTC, including all its facilities and services and the
fixing of rates. Implementing said Executive Order No. 196, respondents required petitioner to apply for the requisite
certificate of public convenience and necessity covering its facilities and the services it renders, as well as the
corresponding authority to charge rates therefor.

Consequently, under date of September 9, 1987, petitioner filed with respondent NTC an application 4 for authority to
continue operating and maintaining the same facilities it has been continuously operating and maintaining since 1967, to
continue providing the international satellite communications services it has likewise been providing since 1967, and to
charge the current rates applied for in rendering such services. Pending hearing, it also applied for a provisional authority
so that it can continue to operate and maintain the above mentioned facilities, provide the services and charge therefor
the aforesaid rates therein applied for.

On September 16, 1987, petitioner was granted a provisional authority to continue operating its existing facilities, to
render the services it was then offering, and to charge the rates it was then charging. This authority was valid for six (6)
months from the date of said order. 5 When said provisional authority expired on March 17, 1988, it was extended for
another six (6) months, or up to September 16, 1988.

The NTC order now in controversy had further extended the provisional authority of the petitioner for another six (6)
months, counted from September 16, 1988, but it directed the petitioner to charge modified reduced rates through a
reduction of fifteen percent (15%) on the present authorized rates. Respondent Commissioner ordered said reduction on
the following ground:

The Commission in its on-going review of present service rates takes note that after an initial evaluation
by the Rates Regulation Division of the Common Carriers Authorization Department of the financial
statements of applicant, there is merit in a REDUCTION in some of applicant's rates, subject to further
reductions, should the Commission finds (sic) in its further evaluation that more reduction should be
effected either on the basis of a provisional authorization or in the final consideration of the case. 6

PHILCOMSAT assails the above-quoted order for the following reasons:

1. The enabling act (Executive Order No. 546) of respondent NTC empowering it to fix rates for public service
communications does not provide the necessary standards constitutionally required, hence there is an undue delegation
of legislative power, particularly the adjudicatory powers of NTC;

2. Assuming arguendo that the rate-fixing power was properly and constitutionally conferred, the same was exercised in
an unconstitutional manner, hence it is ultra vires, in that (a) the questioned order violates procedural due process for
having been issued without prior notice and hearing; and (b) the rate reduction it imposes is unjust, unreasonable and
confiscatory, thus constitutive of a violation of substantive due process.

I. Petitioner asseverates that nowhere in the provisions of Executive Order No. 546, providing for the creation of
respondent NTC and granting its rate-fixing powers, nor of Executive Order No. 196, placing petitioner under the
jurisdiction of respondent NTC, can it be inferred that respondent NTC is guided by any standard in the exercise of its
rate-fixing and adjudicatory powers. While petitioner in its petition-in-chief raised the issue of undue delegation of
legislative power, it subsequently clarified its said submission to mean that the order mandating a reduction of certain
rates is undue delegation not of legislative but of quasi-judicial power to respondent NTC, the exercise of which allegedly
requires an express conferment by the legislative body.

Whichever way it is presented, petitioner is in effect questioning the constitutionality of Executive Orders Nos. 546 and
196 on the ground that the same do not fix a standard for the exercise of the power therein conferred.

We hold otherwise.

Fundamental is the rule that delegation of legislative power may be sustained only upon the ground that some standard
for its exercise is provided and that the legislature in making the delegation has prescribed the manner of the exercise of
the delegated power. Therefore, when the administrative agency concerned, respondent NTC in this case, establishes a
rate, its act must both be non- confiscatory and must have been established in the manner prescribed by the legislature;
otherwise, in the absence of a fixed standard, the delegation of power becomes unconstitutional. In case of a delegation
of rate-fixing power, the only standard which the legislature is required to prescribe for the guidance of the administrative
authority is that the rate be reasonable and just. However, it has been held that even in the absence of an express
requirement as to reasonableness, this standard may be implied. 7

It becomes important then to ascertain the nature of the power delegated to respondent NTC and the manner required by
the statute for the lawful exercise thereof.

Pursuant to Executive Orders Nos. 546 and 196, respondent NTC is empowered, among others, to determine and
prescribe rates pertinent to the operation of public service communications which necessarily include the power to
promulgate rules and regulations in connection therewith. And, under Section 15(g) of Executive Order No. 546,
respondent NTC should be guided by the requirements of public safety, public interest and reasonable feasibility of
maintaining effective competition of private entities in communications and broadcasting facilities. Likewise, in Section
6(d) thereof, which provides for the creation of the Ministry of Transportation and Communications with control and
supervision over respondent NTC, it is specifically provided that the national economic viability of the entire network or
components of the communications systems contemplated therein should be maintained at reasonable rates. We need
not go into an in-depth analysis of the pertinent provisions of the law in order to conclude that respondent NTC, in the
exercise of its rate-fixing power, is limited by the requirements of public safety, public interest, reasonable feasibility and
reasonable rates, which conjointly more than satisfy the requirements of a valid delegation of legislative power.

II. On another tack, petitioner submits that the questioned order violates procedural due process because it was issued
motu proprio, without notice to petitioner and without the benefit of a hearing. Petitioner laments that said order was based
merely on an "initial evaluation," which is a unilateral evaluation, but had petitioner been given an opportunity to present
its side before the order in question was issued, the confiscatory nature of the rate reduction and the consequent
deterioration of the public service could have been shown and demonstrated to respondents. Petitioner argues that the
function involved in the rate fixing-power of NTC is adjudicatory and hence quasi-judicial, not quasi- legislative; thus,
notice and hearing are necessary and the absence thereof results in a violation of due process.

Respondents admit that the application of a policy like the fixing of rates as exercised by administrative bodies is quasi-
judicial rather than quasi-legislative: that where the function of the administrative agency is legislative, notice and hearing
are not required, but where an order applies to a named person, as in the instant case, the function involved is
adjudicatory. 8 Nonetheless, they insist that under the facts obtaining the order in question need not be preceded by a
hearing, not because it was issued pursuant to respondent NTC's legislative function but because the assailed order is
merely interlocutory, it being an incident in the ongoing proceedings on petitioner's application for a certificate of public
convenience; and that petitioner is not the only primary source of data or information since respondent is currently
engaged in a continuing review of the rates charged.

We find merit in petitioner's contention.

In Vigan Electric Light Co., Inc. vs. Public Service Commission, 9 we made a categorical classification as to when the rate-
filing power of administrative bodies is quasi-judicial and when it is legislative, thus:

Moreover, although the rule-making power and even the power to fix rates- when such rules and/or rates
are meant to apply to all enterprises of a given kind throughout the Philippines-may partake of a
legislative character, such is not the nature of the order complained of. Indeed, the same applies
exclusively to petitioner herein. What is more, it is predicated upon the finding of fact-based upon a report
submitted by the General Auditing Office-that petitioner is making a profit of more than 12% of its invested
capital, which is denied by petitioner. Obviously, the latter is entitled to cross-examine the maker of said
report, and to introduce evidence to disprove the contents thereof and/or explain or complement the
same, as well as to refute the conclusion drawn therefrom by the respondent. In other words, in making
said finding of fact, respondent performed a function partaking of a quasi-judicial character, the valid
exercise of which demands previous notice and hearing.

This rule was further explained in the subsequent case of The Central Bank of the Philippines vs. Cloribel, et al. 10 to wit:

It is also clear from the authorities that where the function of the administrative body is legislative, notice
of hearing is not required by due process of law (See Oppenheimer, Administrative Law, 2 Md. L.R. 185,
204, supra, where it is said: 'If the nature of the administrative agency is essentially legislative, the
requirements of notice and hearing are not necessary. The validity of a rule of future action which affects
a group, if vested rights of liberty or property are not involved, is not determined according to the same
rules which apply in the case of the direct application of a policy to a specific individual) ... It is said in 73
C.J.S. Public Administrative Bodies and Procedure, sec. 130, pages 452 and 453: 'Aside from statute, the
necessity of notice and hearing in an administrative proceeding depends on the character of the
proceeding and the circumstances involved. In so far as generalization is possible in view of the great
variety of administrative proceedings, it may be stated as a general rule that notice and hearing are not
essential to the validity of administrative action where the administrative body acts in the exercise of
executive, administrative, or legislative functions; but where a public administrative body acts in a judicial
or quasi-judicial matter, and its acts are particular and immediate rather than general and prospective, the
person whose rights or property may be affected by the action is entitled to notice and hearing. 11

The order in question which was issued by respondent Alcuaz no doubt contains all the attributes of a quasi-judicial
adjudication. Foremost is the fact that said order pertains exclusively to petitioner and to no other. Further, it is premised
on a finding of fact, although patently superficial, that there is merit in a reduction of some of the rates charged- based on
an initial evaluation of petitioner's financial statements-without affording petitioner the benefit of an explanation as to what
particular aspect or aspects of the financial statements warranted a corresponding rate reduction. No rationalization was
offered nor were the attending contingencies, if any, discussed, which prompted respondents to impose as much as a
fifteen percent (15%) rate reduction. It is not far-fetched to assume that petitioner could be in a better position to
rationalize its rates vis-a-vis the viability of its business requirements. The rates it charges result from an exhaustive and
detailed study it conducts of the multi-faceted intricacies attendant to a public service undertaking of such nature and
magnitude. We are, therefore, inclined to lend greater credence to petitioner's ratiocination that an immediate reduction in
its rates would adversely affect its operations and the quality of its service to the public considering the maintenance
requirements, the projects it still has to undertake and the financial outlay involved. Notably, petitioner was not even
afforded the opportunity to cross-examine the inspector who issued the report on which respondent NTC based its
questioned order.

At any rate, there remains the categorical admission made by respondent NTC that the questioned order was issued
pursuant to its quasi-judicial functions. It, however, insists that notice and hearing are not necessary since the assailed
order is merely incidental to the entire proceedings and, therefore, temporary in nature. This postulate is bereft of merit.

While respondents may fix a temporary rate pending final determination of the application of petitioner, such rate-fixing
order, temporary though it may be, is not exempt from the statutory procedural requirements of notice and hearing, as well
as the requirement of reasonableness. Assuming that such power is vested in NTC, it may not exercise the same in an
arbitrary and confiscatory manner. Categorizing such an order as temporary in nature does not perforce entail the
applicability of a different rule of statutory procedure than would otherwise be applied to any other order on the same
matter unless otherwise provided by the applicable law. In the case at bar, the applicable statutory provision is Section
16(c) of the Public Service Act which provides:

Section 16. Proceedings of the Commission, upon notice and hearing the Commission shall have power,
upon proper notice and hearing in accordance with the rules and provisions of this Act, subject to the
limitations and exceptions mentioned and saving provisions to the contrary:

xxx xxx xxx

(c) To fix and determine individual or joint rates, ... which shall be imposed, observed and followed
thereafter by any public service; ...

There is no reason to assume that the aforesaid provision does not apply to respondent NTC, there being no limiting,
excepting, or saving provisions to the contrary in Executive Orders Nos. 546 and 196.

It is thus clear that with regard to rate-fixing, respondent has no authority to make such order without first giving petitioner
a hearing, whether the order be temporary or permanent, and it is immaterial whether the same is made upon a
complaint, a summary investigation, or upon the commission's own motion as in the present case. That such a hearing is
required is evident in respondents' order of September 16, 1987 in NTC Case No. 87-94 which granted PHILCOMSAT a
provisional authority "to continue operating its existing facilities, to render the services it presently offers, and to charge
the rates as reduced by them "under the condition that "(s)ubject to hearing and the final consideration of the merit of this
application, the Commission may modify, revise or amend the rates ..." 12

While it may be true that for purposes of rate-fixing respondents may have other sources of information or data, still, since
a hearing is essential, respondent NTC should act solely on the basis of the evidence before it and not on knowledge or
information otherwise acquired by it but which is not offered in evidence or, even if so adduced, petitioner was given no
opportunity to controvert.

Again, the order requires the new reduced rates to be made effective on a specified date. It becomes a final legislative act
as to the period during which it has to remain in force pending the final determination of the case. 13 An order of
respondent NTC prescribing reduced rates, even for a temporary period, could be unjust, unreasonable or even
confiscatory, especially if the rates are unreasonably low, since the utility permanently loses its just revenue during the
prescribed period. In fact, such order is in effect final insofar as the revenue during the period covered by the order is
concerned. Upon a showing, therefore, that the order requiring a reduced rate is confiscatory, and will unduly deprive
petitioner of a reasonable return upon its property, a declaration of its nullity becomes inductible, which brings us to the
issue on substantive due process.

III. Petitioner contends that the rate reduction is confiscatory in that its implementation would virtually result in a cessation
of its operations and eventual closure of business. On the other hand, respondents assert that since petitioner is operating
its communications satellite facilities through a legislative franchise, as such grantee it has no vested right therein. What it
has is merely a privilege or license which may be revoked at will by the State at any time without necessarily violating any
vested property right of herein petitioner. While petitioner concedes this thesis of respondent, it counters that the
withdrawal of such privilege should nevertheless be neither whimsical nor arbitrary, but it must be fair and reasonable.

There is no question that petitioner is a mere grantee of a legislative franchise which is subject to amendment, alteration,
or repeal by Congress when the common good so requires. 14 Apparently, therefore, such grant cannot be unilaterally
revoked absent a showing that the termination of the operation of said utility is required by the common good.

The rule is that the power of the State to regulate the conduct and business of public utilities is limited by the
consideration that it is not the owner of the property of the utility, or clothed with the general power of management
incident to ownership, since the private right of ownership to such property remains and is not to be destroyed by the
regulatory power. The power to regulate is not the power to destroy useful and harmless enterprises, but is the power to
protect, foster, promote, preserve, and control with due regard for the interest, first and foremost, of the public, then of the
utility and of its patrons. Any regulation, therefore, which operates as an effective confiscation of private property or
constitutes an arbitrary or unreasonable infringement of property rights is void, because it is repugnant to the
constitutional guaranties of due process and equal protection of the laws. 15

Hence, the inherent power and authority of the State, or its authorized agent, to regulate the rates charged by public
utilities should be subject always to the requirement that the rates so fixed shall be reasonable and just. A commission
has no power to fix rates which are unreasonable or to regulate them arbitrarily. This basic requirement of reasonableness
comprehends such rates which must not be so low as to be confiscatory, or too high as to be oppressive. 16

What is a just and reasonable rate is not a question of formula but of sound business judgment based upon the evidence
17
it is a question of fact calling for the exercise of discretion, good sense, and a fair, enlightened and independent
judgment. 18 In determining whether a rate is confiscatory, it is essential also to consider the given situation, requirements
and opportunities of the utility. A method often employed in determining reasonableness is the fair return upon the value
of the property to the public utility. Competition is also a very important factor in determining the reasonableness of rates
since a carrier is allowed to make such rates as are necessary to meet competition. 19

A cursory perusal of the assailed order reveals that the rate reduction is solely and primarily based on the initial evaluation
made on the financial statements of petitioner, contrary to respondent NTC's allegation that it has several other sources of
information without, however, divulging such sources. Furthermore, it did not as much as make an attempt to elaborate on
how it arrived at the prescribed rates. It just perfunctorily declared that based on the financial statements, there is merit for
a rate reduction without any elucidation on what implications and conclusions were necessarily inferred by it from said
statements. Nor did it deign to explain how the data reflected in the financial statements influenced its decision to impose
a rate reduction.

On the other hand, petitioner may likely suffer a severe drawback, with the consequent detriment to the public service,
should the order of respondent NTC turn out to be unreasonable and improvident. The business in which petitioner is
engaged is unique in that its machinery and equipment have always to be taken in relation to the equipment on the other
end of the transmission arrangement. Any lack, aging, acquisition, rehabilitation, or refurbishment of machinery and
equipment necessarily entails a major adjustment or innovation on the business of petitioner. As pointed out by petitioner,
any change in the sending end abroad has to be matched with the corresponding change in the receiving end in the
Philippines. Conversely, any in the receiving end abroad has to be matched with the corresponding change in the sending
end in the Philippines. An inability on the part of petitioner to meet the variegations demanded be technology could result
in a deterioration or total failure of the service of satellite communications.

At present, petitioner is engaged in several projects aimed at refurbishing, rehabilitating, and renewing its machinery and
equipment in order to keep up with the continuing charges of the times and to maintain its facilities at a competitive level
with the technological advances abroad. There projected undertakings were formulated on the premise that rates are
maintained at their present or at reasonable levels. Hence, an undue reduction thereof may practically lead to a cessation
of its business. While we concede the primacy of the public interest in an adequate and efficient service, the same is not
necessarily to be equated with reduced rates. Reasonableness in the rates assumes that the same is fair to both the
public utility and the consumer.

Consequently, we hold that the challenged order, particularly on the issue of rates provided therein, being violative of the
due process clause is void and should be nullified. Respondents should now proceed, as they should heretofore have
done, with the hearing and determination of petitioner's pending application for a certificate of public convenience and
necessity and in which proceeding the subject of rates involved in the present controversy, as well as other matter
involved in said application, be duly adjudicated with reasonable dispatch and with due observance of our
pronouncements herein.

WHEREFORE, the writ prayed for is GRANTED and the order of respondents, dated September 2, 1988, in NTC Case
No. 87-94 is hereby SET ASIDE. The temporary restraining order issued under our resolution of September 13, 1988, as
specifically directed against the aforesaid order of respondents on the matter of existing rates on petitioner's present
authorized services, is hereby made permanent.

SO ORDERED.

Fernan, (C.J.), Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Bidin, Sarmiento, Cortes, Griño-Aquino
and Medialdea, JJ., concur.

Padilla, J., took no part.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-46496 February 27, 1940

ANG TIBAY, represented by TORIBIO TEODORO, manager and propietor, and

NATIONAL WORKERS BROTHERHOOD, petitioners,
vs.
THE COURT OF INDUSTRIAL RELATIONS and NATIONAL LABOR UNION, INC., respondents.

Office of the Solicitor-General Ozaeta and Assistant Attorney Barcelona for the Court of Industrial Relations.
Antonio D. Paguia for National Labor Unon.
Claro M. Recto for petitioner "Ang Tibay".
Jose M. Casal for National Workers' Brotherhood.

LAUREL, J.:

The Solicitor-General in behalf of the respondent Court of Industrial Relations in the above-entitled case has filed a motion
for reconsideration and moves that, for the reasons stated in his motion, we reconsider the following legal conclusions of
the majority opinion of this Court:

1. Que un contrato de trabajo, asi individual como colectivo, sin termino fijo de duracion o que no sea para una
determinada, termina o bien por voluntad de cualquiera de las partes o cada vez que ilega el plazo fijado para el
pago de los salarios segun costumbre en la localidad o cunado se termine la obra;

2. Que los obreros de una empresa fabril, que han celebrado contrato, ya individual ya colectivamente, con ell,
sin tiempo fijo, y que se han visto obligados a cesar en sus tarbajos por haberse declarando paro forzoso en la
fabrica en la cual tarbajan, dejan de ser empleados u obreros de la misma;

3. Que un patrono o sociedad que ha celebrado un contrato colectivo de trabajo con sus osbreros sin tiempo fijo
de duracion y sin ser para una obra determiminada y que se niega a readmitir a dichos obreros que cesaron
como consecuencia de un paro forzoso, no es culpable de practica injusta in incurre en la sancion penal del
articulo 5 de la Ley No. 213 del Commonwealth, aunque su negativa a readmitir se deba a que dichos obreros
pertenecen a un determinado organismo obrero, puesto que tales ya han dejado deser empleados suyos por
terminacion del contrato en virtud del paro.

The respondent National Labor Union, Inc., on the other hand, prays for the vacation of the judgement rendered by the
majority of this Court and the remanding of the case to the Court of Industrial Relations for a new trial, and avers:

1. That Toribio Teodoro's claim that on September 26, 1938, there was shortage of leather soles in ANG TIBAY
making it necessary for him to temporarily lay off the members of the National Labor Union Inc., is entirely false
and unsupported by the records of the Bureau of Customs and the Books of Accounts of native dealers in leather.

2. That the supposed lack of leather materials claimed by Toribio Teodoro was but a scheme to systematically
prevent the forfeiture of this bond despite the breach of his CONTRACT with the Philippine Army.

3. That Toribio Teodoro's letter to the Philippine Army dated September 29, 1938, (re supposed delay of leather
soles from the States) was but a scheme to systematically prevent the forfeiture of this bond despite the breach of
his CONTRACT with the Philippine Army.

4. That the National Worker's Brotherhood of ANG TIBAY is a company or employer union dominated by Toribio
Teodoro, the existence and functions of which are illegal. (281 U.S., 548, petitioner's printed memorandum, p.
25.)

5. That in the exercise by the laborers of their rights to collective bargaining, majority rule and elective
representation are highly essential and indispensable. (Sections 2 and 5, Commonwealth Act No. 213.)
 6. That the century provisions of the Civil Code which had been (the) principal source of dissensions and
continuous civil war in Spain cannot and should not be made applicable in interpreting and applying the salutary
provisions of a modern labor legislation of American origin where the industrial peace has always been the rule.

7. That the employer Toribio Teodoro was guilty of unfair labor practice for discriminating against the National
Labor Union, Inc., and unjustly favoring the National Workers' Brotherhood.

8. That the exhibits hereto attached are so inaccessible to the respondents that even with the exercise of due
diligence they could not be expected to have obtained them and offered as evidence in the Court of Industrial
Relations.

9. That the attached documents and exhibits are of such far-reaching importance and effect that their admission
would necessarily mean the modification and reversal of the judgment rendered herein.

The petitioner, Ang Tibay, has filed an opposition both to the motion for reconsideration of the respondent National Labor
Union, Inc.

In view of the conclusion reached by us and to be herein after stead with reference to the motion for a new trial of the
respondent National Labor Union, Inc., we are of the opinion that it is not necessary to pass upon the motion for
reconsideration of the Solicitor-General. We shall proceed to dispose of the motion for new trial of the respondent labor
union. Before doing this, however, we deem it necessary, in the interest of orderly procedure in cases of this nature, in
interest of orderly procedure in cases of this nature, to make several observations regarding the nature of the powers of
the Court of Industrial Relations and emphasize certain guiding principles which should be observed in the trial of cases
brought before it. We have re-examined the entire record of the proceedings had before the Court of Industrial Relations
in this case, and we have found no substantial evidence that the exclusion of the 89 laborers here was due to their union
affiliation or activity. The whole transcript taken contains what transpired during the hearing and is more of a record of
contradictory and conflicting statements of opposing counsel, with sporadic conclusion drawn to suit their own views. It is
evident that these statements and expressions of views of counsel have no evidentiary value.

The Court of Industrial Relations is a special court whose functions are specifically stated in the law of its creation
(Commonwealth Act No. 103). It is more an administrative than a part of the integrated judicial system of the nation. It is
not intended to be a mere receptive organ of the Government. Unlike a court of justice which is essentially passive, acting
only when its jurisdiction is invoked and deciding only cases that are presented to it by the parties litigant, the function of
the Court of Industrial Relations, as will appear from perusal of its organic law, is more active, affirmative and dynamic. It
not only exercises judicial or quasi-judicial functions in the determination of disputes between employers and employees
but its functions in the determination of disputes between employers and employees but its functions are far more
comprehensive and expensive. It has jurisdiction over the entire Philippines, to consider, investigate, decide, and settle
any question, matter controversy or dispute arising between, and/or affecting employers and employees or laborers, and
regulate the relations between them, subject to, and in accordance with, the provisions of Commonwealth Act No. 103
(section 1). It shall take cognizance or purposes of prevention, arbitration, decision and settlement, of any industrial or
agricultural dispute causing or likely to cause a strike or lockout, arising from differences as regards wages, shares or
compensation, hours of labor or conditions of tenancy or employment, between landlords and tenants or farm-laborers,
provided that the number of employees, laborers or tenants of farm-laborers involved exceeds thirty, and such industrial
or agricultural dispute is submitted to the Court by the Secretary of Labor or by any or both of the parties to the
controversy and certified by the Secretary of labor as existing and proper to be by the Secretary of Labor as existing and
proper to be dealth with by the Court for the sake of public interest. (Section 4, ibid.) It shall, before hearing the dispute
and in the course of such hearing, endeavor to reconcile the parties and induce them to settle the dispute by amicable
agreement. (Paragraph 2, section 4, ibid.) When directed by the President of the Philippines, it shall investigate and study
all industries established in a designated locality, with a view to determinating the necessity and fairness of fixing and
adopting for such industry or locality a minimum wage or share of laborers or tenants, or a maximum "canon" or rental to
be paid by the "inquilinos" or tenants or less to landowners. (Section 5, ibid.) In fine, it may appeal to voluntary arbitration
in the settlement of industrial disputes; may employ mediation or conciliation for that purpose, or recur to the more
effective system of official investigation and compulsory arbitration in order to determine specific controversies between
labor and capital industry and in agriculture. There is in reality here a mingling of executive and judicial functions, which is
a departure from the rigid doctrine of the separation of governmental powers.

In the case of Goseco vs. Court of Industrial Relations et al., G.R. No. 46673, promulgated September 13, 1939, we had
occasion to joint out that the Court of Industrial Relations et al., G. R. No. 46673, promulgated September 13, 1939, we
had occasion to point out that the Court of Industrial Relations is not narrowly constrained by technical rules of procedure,
and the Act requires it to "act according to justice and equity and substantial merits of the case, without regard to
technicalities or legal forms and shall not be bound by any technicalities or legal forms and shall not be bound by any
technical rules of legal evidence but may inform its mind in such manner as it may deem just and equitable." (Section 20,
Commonwealth Act No. 103.) It shall not be restricted to the specific relief claimed or demands made by the parties to the
industrial or agricultural dispute, but may include in the award, order or decision any matter or determination which may
be deemed necessary or expedient for the purpose of settling the dispute or of preventing further industrial or agricultural
disputes. (section 13, ibid.) And in the light of this legislative policy, appeals to this Court have been especially regulated
by the rules recently promulgated by the rules recently promulgated by this Court to carry into the effect the avowed
legislative purpose. The fact, however, that the Court of Industrial Relations may be said to be free from the rigidity of
certain procedural requirements does not mean that it can, in justifiable cases before it, entirely ignore or disregard the
fundamental and essential requirements of due process in trials and investigations of an administrative character. There
are primary rights which must be respected even in proceedings of this character:

(1) The first of these rights is the right to a hearing, which includes the right of the party interested or affected to
present his own case and submit evidence in support thereof. In the language of Chief Hughes, in Morgan v. U.S.,
304 U.S. 1, 58 S. Ct. 773, 999, 82 Law. ed. 1129, "the liberty and property of the citizen shall be protected by the
rudimentary requirements of fair play.

(2) Not only must the party be given an opportunity to present his case and to adduce evidence tending to
establish the rights which he asserts but the tribunal must consider the evidence presented. (Chief Justice
Hughes in Morgan v. U.S. 298 U.S. 468, 56 S. Ct. 906, 80 law. ed. 1288.) In the language of this court in Edwards
vs. McCoy, 22 Phil., 598, "the right to adduce evidence, without the corresponding duty on the part of the board to
consider it, is vain. Such right is conspicuously futile if the person or persons to whom the evidence is presented
can thrust it aside without notice or consideration."

(3) "While the duty to deliberate does not impose the obligation to decide right, it does imply a necessity which
cannot be disregarded, namely, that of having something to support it is a nullity, a place when directly attached."
(Edwards vs. McCoy, supra.) This principle emanates from the more fundamental is contrary to the vesting of
unlimited power anywhere. Law is both a grant and a limitation upon power.

(4) Not only must there be some evidence to support a finding or conclusion (City of Manila vs. Agustin, G.R. No.
45844, promulgated November 29, 1937, XXXVI O. G. 1335), but the evidence must be "substantial."
(Washington, Virginia and Maryland Coach Co. v. national labor Relations Board, 301 U.S. 142, 147, 57 S. Ct.
648, 650, 81 Law. ed. 965.) It means such relevant evidence as a reasonable mind accept as adequate to support
a conclusion." (Appalachian Electric Power v. National Labor Relations Board, 4 Cir., 93 F. 2d 985, 989; National
Labor Relations Board v. Thompson Products, 6 Cir., 97 F. 2d 13, 15; Ballston-Stillwater Knitting Co. v. National
Labor Relations Board, 2 Cir., 98 F. 2d 758, 760.) . . . The statute provides that "the rules of evidence prevailing in
courts of law and equity shall not be controlling.' The obvious purpose of this and similar provisions is to free
administrative boards from the compulsion of technical rules so that the mere admission of matter which would be
deemed incompetent inn judicial proceedings would not invalidate the administrative order. (Interstate Commerce
Commission v. Baird, 194 U.S. 25, 44, 24 S. Ct. 563, 568, 48 Law. ed. 860; Interstate Commerce Commission v.
Louisville and Nashville R. Co., 227 U.S. 88, 93 33 S. Ct. 185, 187, 57 Law. ed. 431; United States v. Abilene and
Southern Ry. Co. S. Ct. 220, 225, 74 Law. ed. 624.) But this assurance of a desirable flexibility in administrative
procedure does not go far as to justify orders without a basis in evidence having rational probative force. Mere
uncorroborated hearsay or rumor does not constitute substantial evidence. (Consolidated Edison Co. v. National
Labor Relations Board, 59 S. Ct. 206, 83 Law. ed. No. 4, Adv. Op., p. 131.)"

(5) The decision must be rendered on the evidence presented at the hearing, or at least contained in the record
and disclosed to the parties affected. (Interstate Commence Commission vs. L. & N. R. Co., 227 U.S. 88, 33 S.
Ct. 185, 57 Law. ed. 431.) Only by confining the administrative tribunal to the evidence disclosed to the parties,
can the latter be protected in their right to know and meet the case against them. It should not, however, detract
from their duty actively to see that the law is enforced, and for that purpose, to use the authorized legal methods
of securing evidence and informing itself of facts material and relevant to the controversy. Boards of inquiry may
be appointed for the purpose of investigating and determining the facts in any given case, but their report and
decision are only advisory. (Section 9, Commonwealth Act No. 103.) The Court of Industrial Relations may refer
any industrial or agricultural dispute or any matter under its consideration or advisement to a local board of
inquiry, a provincial fiscal. a justice of the peace or any public official in any part of the Philippines for
investigation, report and recommendation, and may delegate to such board or public official such powers and
functions as the said Court of Industrial Relations may deem necessary, but such delegation shall not affect the
exercise of the Court itself of any of its powers. (Section 10, ibid.)

(6) The Court of Industrial Relations or any of its judges, therefore, must act on its or his own independent
consideration of the law and facts of the controversy, and not simply accept the views of a subordinate in arriving
 at a decision. It may be that the volume of work is such that it is literally Relations personally to decide all
controversies coming before them. In the United States the difficulty is solved with the enactment of statutory
authority authorizing examiners or other subordinates to render final decision, with the right to appeal to board or
commission, but in our case there is no such statutory authority.

(7) The Court of Industrial Relations should, in all controversial questions, render its decision in such a manner
that the parties to the proceeding can know the various issues involved, and the reasons for the decision
rendered. The performance of this duty is inseparable from the authority conferred upon it.

In the right of the foregoing fundamental principles, it is sufficient to observe here that, except as to the alleged agreement
between the Ang Tibay and the National Worker's Brotherhood (appendix A), the record is barren and does not satisfy the
thirst for a factual basis upon which to predicate, in a national way, a conclusion of law.

This result, however, does not now preclude the concession of a new trial prayed for the by respondent National Labor
Union, Inc., it is alleged that "the supposed lack of material claimed by Toribio Teodoro was but a scheme adopted to
systematically discharged all the members of the National Labor Union Inc., from work" and this avernment is desired to
be proved by the petitioner with the "records of the Bureau of Customs and the Books of Accounts of native dealers in
leather"; that "the National Workers Brotherhood Union of Ang Tibay is a company or employer union dominated by
Toribio Teodoro, the existence and functions of which are illegal." Petitioner further alleges under oath that the exhibits
attached to the petition to prove his substantial avernments" are so inaccessible to the respondents that even within the
exercise of due diligence they could not be expected to have obtained them and offered as evidence in the Court of
Industrial Relations", and that the documents attached to the petition "are of such far reaching importance and effect that
their admission would necessarily mean the modification and reversal of the judgment rendered herein." We have
considered the reply of Ang Tibay and its arguments against the petition. By and large, after considerable discussions, we
have come to the conclusion that the interest of justice would be better served if the movant is given opportunity to
present at the hearing the documents referred to in his motion and such other evidence as may be relevant to the main
issue involved. The legislation which created the Court of Industrial Relations and under which it acts is new. The failure
to grasp the fundamental issue involved is not entirely attributable to the parties adversely affected by the result.
Accordingly, the motion for a new trial should be and the same is hereby granted, and the entire record of this case shall
be remanded to the Court of Industrial Relations, with instruction that it reopen the case, receive all such evidence as may
be relevant and otherwise proceed in accordance with the requirements set forth hereinabove. So ordered.

Avanceña, C. J., Villa-Real, Imperial, Diaz, Concepcion and Moran, JJ., concur
 Republic of the Philippines
SUPREME COURT
Manila

G.R. No. 171396 May 3, 2006

PROF. RANDOLF S. DAVID, LORENZO TAÑADA III, RONALD LLAMAS, H. HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN,
ROGER R. RAYEL, GARY S. MALLARI, ROMEL REGALADO BAGARES, CHRISTOPHER F.C. BOLASTIG, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND COMMANDER-IN-CHIEF, EXECUTIVE SECRETARY EDUARDO ERMITA,
HON. AVELINO CRUZ II, SECRETARY OF NATIONAL DEFENSE, GENERAL GENEROSO SENGA, CHIEF OF STAFF, ARMED
FORCES OF THE PHILIPPINES, DIRECTOR GENERAL ARTURO LOMIBAO, CHIEF, PHILIPPINE NATIONAL POLICE,
Respondents.

x-------------------------------------x

G.R. No. 171409 May 3, 2006

NIÑEZ CACHO-OLIVARES AND TRIBUNE PUBLISHING CO., INC., Petitioners,

vs.
HONORABLE SECRETARY EDUARDO ERMITA AND HONORABLE DIRECTOR GENERAL ARTURO C. LOMIBAO, Respondents.

x-------------------------------------x

G.R. No. 171485 May 3, 2006

FRANCIS JOSEPH G. ESCUDERO, JOSEPH A. SANTIAGO, TEODORO A. CASINO, AGAPITO A. AQUINO, MARIO J. AGUJA,
SATUR C. OCAMPO, MUJIV S. HATAMAN, JUAN EDGARDO ANGARA, TEOFISTO DL. GUINGONA III, EMMANUEL JOSEL J.
VILLANUEVA, LIZA L. MAZA, IMEE R. MARCOS, RENATO B. MAGTUBO, JUSTIN MARC SB. CHIPECO, ROILO GOLEZ,
DARLENE ANTONINO-CUSTODIO, LORETTA ANN P. ROSALES, JOSEL G. VIRADOR, RAFAEL V. MARIANO, GILBERT C.
REMULLA, FLORENCIO G. NOEL, ANA THERESIA HONTIVEROS-BARAQUEL, IMELDA C. NICOLAS, MARVIC M.V.F. LEONEN,
NERI JAVIER COLMENARES, MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES REPRESENTED BY AMADO GAT
INCIONG, Petitioners,
vs.
EDUARDO R. ERMITA, EXECUTIVE SECRETARY, AVELINO J. CRUZ, JR., SECRETARY, DND RONALDO V. PUNO,
SECRETARY, DILG, GENEROSO SENGA, AFP CHIEF OF STAFF, ARTURO LOMIBAO, CHIEF PNP, Respondents.

x-------------------------------------x

G.R. No. 171483 May 3, 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, EMILIA P. DAPULANG,
MARTIN CUSTODIO, JR., AND ROQUE M. TAN, Petitioners,
vs.
HER EXCELLENCY, PRESIDENT GLORIA MACAPAGAL-ARROYO, THE HONORABLE EXECUTIVE SECRETARY, EDUARDO
ERMITA, THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, GENEROSO SENGA, AND THE PNP DIRECTOR
GENERAL, ARTURO LOMIBAO, Respondents.

x-------------------------------------x

G.R. No. 171400 May 3, 2006

ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner,

vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, LT. GEN. GENEROSO SENGA, AND DIRECTOR GENERAL ARTURO
LOMIBAO, Respondents.

G.R. No. 171489 May 3, 2006

JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA, JOSE AMOR M. AMORADO, ALICIA A. RISOS-
VIDAL, FELIMON C. ABELITA III, MANUEL P. LEGASPI, J.B. JOVY C. BERNABE, BERNARD L. DAGCUTA, ROGELIO V.
 GARCIA AND INTEGRATED BAR OF THE PHILIPPINES (IBP), Petitioners,
vs.
HON. EXECUTIVE SECRETARY EDUARDO ERMITA, GENERAL GENEROSO SENGA, IN HIS CAPACITY AS AFP CHIEF OF
STAFF, AND DIRECTOR GENERAL ARTURO LOMIBAO, IN HIS CAPACITY AS PNP CHIEF, Respondents.

x-------------------------------------x

G.R. No. 171424 May 3, 2006

LOREN B. LEGARDA, Petitioner,

vs.
GLORIA MACAPAGAL-ARROYO, IN HER CAPACITY AS PRESIDENT AND COMMANDER-IN-CHIEF; ARTURO LOMIBAO, IN HIS
CAPACITY AS DIRECTOR-GENERAL OF THE PHILIPPINE NATIONAL POLICE (PNP); GENEROSO SENGA, IN HIS CAPACITY
AS CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES (AFP); AND EDUARDO ERMITA, IN HIS CAPACITY AS
EXECUTIVE SECRETARY, Respondents.

DECISION

SANDOVAL-GUTIERREZ, J.:

All powers need some restraint; practical adjustments rather than rigid formula are necessary.1 Superior strength – the use of force –
cannot make wrongs into rights. In this regard, the courts should be vigilant in safeguarding the constitutional rights of the citizens,
specifically their liberty.

Chief Justice Artemio V. Panganiban’s philosophy of liberty is thus most relevant. He said: "In cases involving liberty, the scales of
justice should weigh heavily against government and in favor of the poor, the oppressed, the marginalized, the dispossessed
and the weak." Laws and actions that restrict fundamental rights come to the courts "with a heavy presumption against their
constitutional validity."2

These seven (7) consolidated petitions for certiorari and prohibition allege that in issuing Presidential Proclamation No. 1017 (PP 1017)
and General Order No. 5 (G.O. No. 5), President Gloria Macapagal-Arroyo committed grave abuse of discretion. Petitioners contend
that respondent officials of the Government, in their professed efforts to defend and preserve democratic institutions, are actually
trampling upon the very freedom guaranteed and protected by the Constitution. Hence, such issuances are void for being
unconstitutional.

Once again, the Court is faced with an age-old but persistently modern problem. How does the Constitution of a free people combine
the degree of liberty, without which, law becomes tyranny, with the degree of law, without which, liberty becomes license?3

On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa People Power I, President Arroyo issued PP 1017
declaring a state of national emergency, thus:

NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the Philippines and Commander-in-Chief of the Armed
Forces of the Philippines, by virtue of the powers vested upon me by Section 18, Article 7 of the Philippine Constitution which states
that: "The President. . . whenever it becomes necessary, . . . may call out (the) armed forces to prevent or suppress. . .rebellion. . .,"
and in my capacity as their Commander-in-Chief, do hereby command the Armed Forces of the Philippines, to maintain law and
order throughout the Philippines, prevent or suppress all forms of lawless violence as well as any act of insurrection or
rebellion and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or
upon my direction; and as provided in Section 17, Article 12 of the Constitution do hereby declare a State of National
Emergency.

She cited the following facts as bases:

WHEREAS, over these past months, elements in the political opposition have conspired with authoritarians of the extreme Left
represented by the NDF-CPP-NPA and the extreme Right, represented by military adventurists – the historical enemies of the
democratic Philippine State – who are now in a tactical alliance and engaged in a concerted and systematic conspiracy, over a broad
front, to bring down the duly constituted Government elected in May 2004;

WHEREAS, these conspirators have repeatedly tried to bring down the President;

WHEREAS, the claims of these elements have been recklessly magnified by certain segments of the national media;

WHEREAS, this series of actions is hurting the Philippine State – by obstructing governance including hindering the growth of the
economy and sabotaging the people’s confidence in government and their faith in the future of this country;
WHEREAS, these actions are adversely affecting the economy;

WHEREAS, these activities give totalitarian forces of both the extreme Left and extreme Right the opening to intensify their
avowed aims to bring down the democratic Philippine State;

WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and preservation of the democratic institutions and the State
the primary duty of Government;

WHEREAS, the activities above-described, their consequences, ramifications and collateral effects constitute a clear and present
danger to the safety and the integrity of the Philippine State and of the Filipino people;

On the same day, the President issued G. O. No. 5 implementing PP 1017, thus:

WHEREAS, over these past months, elements in the political opposition have conspired with authoritarians of the extreme Left,
represented by the NDF-CPP-NPA and the extreme Right, represented by military adventurists - the historical enemies of the
democratic Philippine State – and who are now in a tactical alliance and engaged in a concerted and systematic conspiracy, over a
broad front, to bring down the duly-constituted Government elected in May 2004;

WHEREAS, these conspirators have repeatedly tried to bring down our republican government;

WHEREAS, the claims of these elements have been recklessly magnified by certain segments of the national media;

WHEREAS, these series of actions is hurting the Philippine State by obstructing governance, including hindering the growth of the
economy and sabotaging the people’s confidence in the government and their faith in the future of this country;

WHEREAS, these actions are adversely affecting the economy;

WHEREAS, these activities give totalitarian forces; of both the extreme Left and extreme Right the opening to intensify their avowed
aims to bring down the democratic Philippine State;

WHEREAS, Article 2, Section 4 of our Constitution makes the defense and preservation of the democratic institutions and the State the
primary duty of Government;

WHEREAS, the activities above-described, their consequences, ramifications and collateral effects constitute a clear and present
danger to the safety and the integrity of the Philippine State and of the Filipino people;

WHEREAS, Proclamation 1017 date February 24, 2006 has been issued declaring a State of National Emergency;

NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me under the Constitution as President of
the Republic of the Philippines, and Commander-in-Chief of the Republic of the Philippines, and pursuant to Proclamation No. 1017
dated February 24, 2006, do hereby call upon the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP), to
prevent and suppress acts of terrorism and lawless violence in the country;

I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the officers and men of the AFP and PNP, to
immediately carry out the necessary and appropriate actions and measures to suppress and prevent acts of terrorism and
lawless violence.

On March 3, 2006, exactly one week after the declaration of a state of national emergency and after all these petitions had been filed,
the President lifted PP 1017. She issued Proclamation No. 1021 which reads:

WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of the Constitution, Proclamation No. 1017 dated February
24, 2006, was issued declaring a state of national emergency;

WHEREAS, by virtue of General Order No.5 and No.6 dated February 24, 2006, which were issued on the basis of Proclamation No.
1017, the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP), were directed to maintain law and order
throughout the Philippines, prevent and suppress all form of lawless violence as well as any act of rebellion and to undertake such
action as may be necessary;

WHEREAS, the AFP and PNP have effectively prevented, suppressed and quelled the acts lawless violence and rebellion;

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the Philippines, by virtue of the powers vested
in me by law, hereby declare that the state of national emergency has ceased to exist.
In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents stated that the proximate cause behind the executive
issuances was the conspiracy among some military officers, leftist insurgents of the New People’s Army (NPA), and some members of
the political opposition in a plot to unseat or assassinate President Arroyo.4 They considered the aim to oust or assassinate the
President and take-over the reigns of government as a clear and present danger.

During the oral arguments held on March 7, 2006, the Solicitor General specified the facts leading to the issuance of PP 1017 and G.O.
No. 5. Significantly, there was no refutation from petitioners’ counsels.

The Solicitor General argued that the intent of the Constitution is to give full discretionary powers to the President in determining the
necessity of calling out the armed forces. He emphasized that none of the petitioners has shown that PP 1017 was without factual
bases. While he explained that it is not respondents’ task to state the facts behind the questioned Proclamation, however, they are
presenting the same, narrated hereunder, for the elucidation of the issues.

On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny Sarmiento, Lawrence San Juan and Patricio Bumidang,
members of the Magdalo Group indicted in the Oakwood mutiny, escaped their detention cell in Fort Bonifacio, Taguig City. In a public
statement, they vowed to remain defiant and to elude arrest at all costs. They called upon the people to "show and proclaim our
displeasure at the sham regime. Let us demonstrate our disgust, not only by going to the streets in protest, but also by wearing red
bands on our left arms." 5

On February 17, 2006, the authorities got hold of a document entitled "Oplan Hackle I " which detailed plans for bombings and attacks
during the Philippine Military Academy Alumni Homecoming in Baguio City. The plot was to assassinate selected targets including
some cabinet members and President Arroyo herself.6 Upon the advice of her security, President Arroyo decided not to attend the
Alumni Homecoming. The next day, at the height of the celebration, a bomb was found and detonated at the PMA parade ground.

On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in Batangas province. Found in his possession were
two (2) flash disks containing minutes of the meetings between members of the Magdalo Group and the National People’s Army (NPA),
a tape recorder, audio cassette cartridges, diskettes, and copies of subversive documents.7 Prior to his arrest, Lt. San Juan announced
through DZRH that the "Magdalo’s D-Day would be on February 24, 2006, the 20th Anniversary of Edsa I."

On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that members of the PNP- Special Action Force were
planning to defect. Thus, he immediately ordered SAF Commanding General Marcelino Franco, Jr. to "disavow" any defection. The
latter promptly obeyed and issued a public statement: "All SAF units are under the effective control of responsible and trustworthy
officers with proven integrity and unquestionable loyalty."

On the same day, at the house of former Congressman Peping Cojuangco, President Cory Aquino’s brother, businessmen and mid-
level government officials plotted moves to bring down the Arroyo administration. Nelly Sindayen of TIME Magazine reported that
Pastor Saycon, longtime Arroyo critic, called a U.S. government official about his group’s plans if President Arroyo is ousted. Saycon
also phoned a man code-named Delta. Saycon identified him as B/Gen. Danilo Lim, Commander of the Army’s elite Scout Ranger. Lim
said "it was all systems go for the planned movement against Arroyo."8

B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to Gen. Generoso Senga, Chief of Staff of the Armed Forces
of the Philippines (AFP), that a huge number of soldiers would join the rallies to provide a critical mass and armed component to the
Anti-Arroyo protests to be held on February 24, 2005. According to these two (2) officers, there was no way they could possibly stop the
soldiers because they too, were breaking the chain of command to join the forces foist to unseat the President. However, Gen. Senga
has remained faithful to his Commander-in-Chief and to the chain of command. He immediately took custody of B/Gen. Lim and
directed Col. Querubin to return to the Philippine Marines Headquarters in Fort Bonifacio.

Earlier, the CPP-NPA called for intensification of political and revolutionary work within the military and the police establishments in
order to forge alliances with its members and key officials. NPA spokesman Gregorio "Ka Roger" Rosal declared: "The Communist
Party and revolutionary movement and the entire people look forward to the possibility in the coming year of accomplishing its
immediate task of bringing down the Arroyo regime; of rendering it to weaken and unable to rule that it will not take much longer to end
it."9

On the other hand, Cesar Renerio, spokesman for the National Democratic Front (NDF) at North Central Mindanao, publicly
announced: "Anti-Arroyo groups within the military and police are growing rapidly, hastened by the economic difficulties suffered by the
families of AFP officers and enlisted personnel who undertake counter-insurgency operations in the field." He claimed that with the
forces of the national democratic movement, the anti-Arroyo conservative political parties, coalitions, plus the groups that have been
reinforcing since June 2005, it is probable that the President’s ouster is nearing its concluding stage in the first half of 2006.

Respondents further claimed that the bombing of telecommunication towers and cell sites in Bulacan and Bataan was also considered
as additional factual basis for the issuance of PP 1017 and G.O. No. 5. So is the raid of an army outpost in Benguet resulting in the
death of three (3) soldiers. And also the directive of the Communist Party of the Philippines ordering its front organizations to join 5,000
Metro Manila radicals and 25,000 more from the provinces in mass protests.10
By midnight of February 23, 2006, the President convened her security advisers and several cabinet members to assess the gravity of
the fermenting peace and order situation. She directed both the AFP and the PNP to account for all their men and ensure that the chain
of command remains solid and undivided. To protect the young students from any possible trouble that might break loose on the
streets, the President suspended classes in all levels in the entire National Capital Region.

For their part, petitioners cited the events that followed after the issuance of PP 1017 and G.O. No. 5.

Immediately, the Office of the President announced the cancellation of all programs and activities related to the 20th anniversary
celebration of Edsa People Power I; and revoked the permits to hold rallies issued earlier by the local governments. Justice Secretary
Raul Gonzales stated that political rallies, which to the President’s mind were organized for purposes of destabilization, are
cancelled.Presidential Chief of Staff Michael Defensor announced that "warrantless arrests and take-over of facilities, including media,
can already be implemented."11

Undeterred by the announcements that rallies and public assemblies would not be allowed, groups of protesters (members of Kilusang
Mayo Uno [KMU] and National Federation of Labor Unions-Kilusang Mayo Uno [NAFLU-KMU]), marched from various parts of Metro
Manila with the intention of converging at the EDSA shrine. Those who were already near the EDSA site were violently dispersed by
huge clusters of anti-riot police. The well-trained policemen used truncheons, big fiber glass shields, water cannons, and tear gas to
stop and break up the marching groups, and scatter the massed participants. The same police action was used against the protesters
marching forward to Cubao, Quezon City and to the corner of Santolan Street and EDSA. That same evening, hundreds of riot
policemen broke up an EDSA celebration rally held along Ayala Avenue and Paseo de Roxas Street in Makati City.12

According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the ground for the dispersal of their assemblies.

During the dispersal of the rallyists along EDSA, police arrested (without warrant) petitioner Randolf S. David, a professor at the
University of the Philippines and newspaper columnist. Also arrested was his companion, Ronald Llamas, president of party-list
Akbayan.

At around 12:20 in the early morning of February 25, 2006, operatives of the Criminal Investigation and Detection Group (CIDG) of the
PNP, on the basis of PP 1017 and G.O. No. 5, raided the Daily Tribune offices in Manila. The raiding team confiscated news stories by
reporters, documents, pictures, and mock-ups of the Saturday issue. Policemen from Camp Crame in Quezon City were stationed
inside the editorial and business offices of the newspaper; while policemen from the Manila Police District were stationed outside the
building.13

A few minutes after the search and seizure at the Daily Tribune offices, the police surrounded the premises of another pro-opposition
paper, Malaya, and its sister publication, the tabloid Abante.

The raid, according to Presidential Chief of Staff Michael Defensor, is "meant to show a ‘strong presence,’ to tell media outlets not to
connive or do anything that would help the rebels in bringing down this government." The PNP warned that it would take over any
media organization that would not follow "standards set by the government during the state of national emergency." Director General
Lomibao stated that "if they do not follow the standards – and the standards are - if they would contribute to instability in the
government, or if they do not subscribe to what is in General Order No. 5 and Proc. No. 1017 – we will recommend a ‘takeover.’"
National Telecommunications’ Commissioner Ronald Solis urged television and radio networks to "cooperate" with the government for
the duration of the state of national emergency. He asked for "balanced reporting" from broadcasters when covering the events
surrounding the coup attempt foiled by the government. He warned that his agency will not hesitate to recommend the closure of any
broadcast outfit that violates rules set out for media coverage when the national security is threatened.14

Also, on February 25, 2006, the police arrested Congressman Crispin Beltran, representing the Anakpawis Party and Chairman of
Kilusang Mayo Uno (KMU), while leaving his farmhouse in Bulacan. The police showed a warrant for his arrest dated 1985. Beltran’s
lawyer explained that the warrant, which stemmed from a case of inciting to rebellion filed during the Marcos regime, had long been
quashed. Beltran, however, is not a party in any of these petitions.

When members of petitioner KMU went to Camp Crame to visit Beltran, they were told they could not be admitted because of PP 1017
and G.O. No. 5. Two members were arrested and detained, while the rest were dispersed by the police.

Bayan Muna Representative Satur Ocampo eluded arrest when the police went after him during a public forum at the Sulo Hotel in
Quezon City. But his two drivers, identified as Roel and Art, were taken into custody.

Retired Major General Ramon Montaño, former head of the Philippine Constabulary, was arrested while with his wife and golfmates at
the Orchard Golf and Country Club in Dasmariñas, Cavite.

Attempts were made to arrest Anakpawis Representative Satur Ocampo, Representative Rafael Mariano, Bayan Muna Representative
Teodoro Casiño and Gabriela Representative Liza Maza. Bayan Muna Representative Josel Virador was arrested at the PAL Ticket
Office in Davao City. Later, he was turned over to the custody of the House of Representatives where the "Batasan 5" decided to stay
indefinitely.
Let it be stressed at this point that the alleged violations of the rights of Representatives Beltran, Satur Ocampo, et al., are not being
raised in these petitions.

On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of national emergency has ceased to exist.

In the interim, these seven (7) petitions challenging the constitutionality of PP 1017 and G.O. No. 5 were filed with this Court against the
above-named respondents. Three (3) of these petitions impleaded President Arroyo as respondent.

In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the grounds that (1) it encroaches on the emergency
powers of Congress; (2) itis a subterfuge to avoid the constitutional requirements for the imposition of martial law; and (3) it violates the
constitutional guarantees of freedom of the press, of speech and of assembly.

In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing Co., Inc. challenged the CIDG’s act of raiding the Daily
Tribune offices as a clear case of "censorship" or "prior restraint." They also claimed that the term "emergency" refers only to tsunami,
typhoon, hurricane and similar occurrences, hence, there is "absolutely no emergency" that warrants the issuance of PP 1017.

In G.R. No. 171485, petitioners herein are Representative Francis Joseph G. Escudero, and twenty one (21) other members of the
House of Representatives, including Representatives Satur Ocampo, Rafael Mariano, Teodoro Casiño, Liza Maza, and Josel Virador.
They asserted that PP 1017 and G.O. No. 5 constitute "usurpation of legislative powers"; "violation of freedom of expression" and "a
declaration of martial law." They alleged that President Arroyo "gravely abused her discretion in calling out the armed forces without
clear and verifiable factual basis of the possibility of lawless violence and a showing that there is necessity to do so."

In G.R. No. 171483,petitioners KMU, NAFLU-KMU, and their members averred that PP 1017 and G.O. No. 5 are unconstitutional
because (1) they arrogate unto President Arroyo the power to enact laws and decrees; (2) their issuance was without factual basis; and
(3) they violate freedom of expression and the right of the people to peaceably assemble to redress their grievances.

In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that PP 1017 and G.O. No. 5 are unconstitutional because
they violate (a) Section 415 of Article II, (b) Sections 1,16 2,17 and 418 of Article III, (c) Section 2319 of Article VI, and (d) Section 1720 of
Article XII of the Constitution.

In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP 1017 is an "arbitrary and unlawful exercise by the
President of her Martial Law powers." And assuming that PP 1017 is not really a declaration of Martial Law, petitioners argued that "it
amounts to an exercise by the President of emergency powers without congressional approval." In addition, petitioners asserted that
PP 1017 "goes beyond the nature and function of a proclamation as defined under the Revised Administrative Code."

And lastly, in G.R. No. 171424,petitionerLoren B. Legarda maintained that PP 1017 and G.O. No. 5 are "unconstitutional for being
violative of the freedom of expression, including its cognate rights such as freedom of the press and the right to access to information
on matters of public concern, all guaranteed under Article III, Section 4 of the 1987 Constitution." In this regard, she stated that these
issuances prevented her from fully prosecuting her election protest pending before the Presidential Electoral Tribunal.

In respondents’ Consolidated Comment, the Solicitor General countered that: first, the petitions should be dismissed for being moot;
second,petitioners in G.R. Nos. 171400 (ALGI), 171424 (Legarda), 171483 (KMU et al.), 171485 (Escudero et al.) and 171489 (Cadiz
et al.) have no legal standing; third, it is not necessary for petitioners to implead President Arroyo as respondent; fourth, PP 1017 has
constitutional and legal basis; and fifth, PP 1017 does not violate the people’s right to free expression and redress of grievances.

On March 7, 2006, the Court conducted oral arguments and heard the parties on the above interlocking issues which may be
summarized as follows:

A. PROCEDURAL:

1) Whether the issuance of PP 1021 renders the petitions moot and academic.

2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos. 171400 (ALGI), 171483 (KMU et al.), 171489 (Cadiz et al.), and
171424 (Legarda) have legal standing.

B. SUBSTANTIVE:

1) Whetherthe Supreme Court can review the factual bases of PP 1017.

2) Whether PP 1017 and G.O. No. 5 are unconstitutional.

a. Facial Challenge
 b. Constitutional Basis

c. As Applied Challenge

A. PROCEDURAL

First, we must resolve the procedural roadblocks.

I- Moot and Academic Principle

One of the greatest contributions of the American system to this country is the concept of judicial review enunciated in Marbury v.
Madison.21 This concept rests on the extraordinary simple foundation --

The Constitution is the supreme law. It was ordained by the people, the ultimate source of all political authority. It confers limited powers
on the national government. x x x If the government consciously or unconsciously oversteps these limitations there must be
some authority competent to hold it in control, to thwart its unconstitutional attempt, and thus to vindicate and preserve
inviolate the will of the people as expressed in the Constitution. This power the courts exercise. This is the beginning and the
end of the theory of judicial review.22

But the power of judicial review does not repose upon the courts a "self-starting capacity."23 Courts may exercise such power only when
the following requisites are present: first, there must be an actual case or controversy; second, petitioners have to raise a question of
constitutionality; third, the constitutional question must be raised at the earliest opportunity; and fourth, the decision of the constitutional
question must be necessary to the determination of the case itself.24

Respondents maintain that the first and second requisites are absent, hence, we shall limit our discussion thereon.

An actual case or controversy involves a conflict of legal right, an opposite legal claims susceptible of judicial resolution. It is "definite
and concrete, touching the legal relations of parties having adverse legal interest;" a real and substantial controversy admitting of
specific relief.25 The Solicitor General refutes the existence of such actual case or controversy, contending that the present petitions
were rendered "moot and academic" by President Arroyo’s issuance of PP 1021.

Such contention lacks merit.

A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events, 26 so that a
declaration thereon would be of no practical use or value.27 Generally, courts decline jurisdiction over such case28 or dismiss it on
ground of mootness.29

The Court holds that President Arroyo’s issuance of PP 1021 did not render the present petitions moot and academic. During the eight
(8) days that PP 1017 was operative, the police officers, according to petitioners, committed illegal acts in implementing it. Are PP 1017
and G.O. No. 5 constitutional or valid? Do they justify these alleged illegal acts? These are the vital issues that must be resolved
in the present petitions. It must be stressed that "an unconstitutional act is not a law, it confers no rights, it imposes no duties, it
affords no protection; it is in legal contemplation, inoperative."30

The "moot and academic" principle is not a magical formula that can automatically dissuade the courts in resolving a case. Courts will
decide cases, otherwise moot and academic, if: first, there is a grave violation of the Constitution; 31 second, the exceptional character of
the situation and the paramount public interest is involved;32 third, when constitutional issue raised requires formulation of controlling
principles to guide the bench, the bar, and the public;33 and fourth, the case is capable of repetition yet evading review.34

All the foregoing exceptions are present here and justify this Court’s assumption of jurisdiction over the instant petitions. Petitioners
alleged that the issuance of PP 1017 and G.O. No. 5 violates the Constitution. There is no question that the issues being raised affect
the public’s interest, involving as they do the people’s basic rights to freedom of expression, of assembly and of the press. Moreover,
the Court has the duty to formulate guiding and controlling constitutional precepts, doctrines or rules. It has the symbolic function of
educating the bench and the bar, and in the present petitions, the military and the police, on the extent of the protection given by
constitutional guarantees.35 And lastly, respondents’ contested actions are capable of repetition. Certainly, the petitions are subject to
judicial review.

In their attempt to prove the alleged mootness of this case, respondents cited Chief Justice Artemio V. Panganiban’s Separate Opinion
in Sanlakas v. Executive Secretary.36 However, they failed to take into account the Chief Justice’s very statement that an otherwise
"moot" case may still be decided "provided the party raising it in a proper case has been and/or continues to be prejudiced or damaged
as a direct result of its issuance." The present case falls right within this exception to the mootness rule pointed out by the Chief Justice.
II- Legal Standing

In view of the number of petitioners suing in various personalities, the Court deems it imperative to have a more than passing
discussion on legal standing or locus standi.

Locus standi is defined as "a right of appearance in a court of justice on a given question."37 In private suits, standing is governed by the
"real-parties-in interest" rule as contained in Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as amended. It provides that "every
action must be prosecuted or defended in the name of the real party in interest." Accordingly, the "real-party-in interest" is "the
party who stands to be benefited or injured by the judgment in the suit or the party entitled to the avails of the suit."38
Succinctly put, the plaintiff’s standing is based on his own right to the relief sought.

The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a "public right" in assailing an allegedly
illegal official action, does so as a representative of the general public. He may be a person who is affected no differently from any other
person. He could be suing as a "stranger," or in the category of a "citizen," or ‘taxpayer." In either case, he has to adequately show that
he is entitled to seek judicial protection. In other words, he has to make out a sufficient interest in the vindication of the public order and
the securing of relief as a "citizen" or "taxpayer.

Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in public actions. The distinction was first laid down in
Beauchamp v. Silk,39 where it was held that the plaintiff in a taxpayer’s suit is in a different category from the plaintiff in a citizen’s suit.
In the former, the plaintiff is affected by the expenditure of public funds, while in the latter, he is but the mere instrument of
the public concern. As held by the New York Supreme Court in People ex rel Case v. Collins:40 "In matter of mere public right,
however…the people are the real parties…It is at least the right, if not the duty, of every citizen to interfere and see that a
public offence be properly pursued and punished, and that a public grievance be remedied." With respect to taxpayer’s suits,
Terr v. Jordan41 held that "the right of a citizen and a taxpayer to maintain an action in courts to restrain the unlawful use of
public funds to his injury cannot be denied."

However, to prevent just about any person from seeking judicial interference in any official policy or act with which he disagreed with,
and thus hinders the activities of governmental agencies engaged in public service, the United State Supreme Court laid down the
more stringent "direct injury" test in Ex Parte Levitt,42 later reaffirmed in Tileston v. Ullman.43 The same Court ruled that for a private
individual to invoke the judicial power to determine the validity of an executive or legislative action, he must show that he has
sustained a direct injury as a result of that action, and it is not sufficient that he has a general interest common to all
members of the public.

This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera,44 it held that the person who impugns the validity of a
statute must have "a personal and substantial interest in the case such that he has sustained, or will sustain direct injury as a
result." The Vera doctrine was upheld in a litany of cases, such as, Custodio v. President of the Senate,45 Manila Race Horse Trainers’
Association v. De la Fuente,46 Pascual v. Secretary of Public Works47 and Anti-Chinese League of the Philippines v. Felix.48

However, being a mere procedural technicality, the requirement of locus standi may be waived by the Court in the exercise of its
discretion. This was done in the 1949 Emergency Powers Cases, Araneta v. Dinglasan,49 where the "transcendental importance" of
the cases prompted the Court to act liberally. Such liberality was neither a rarity nor accidental. In Aquino v. Comelec,50 this Court
resolved to pass upon the issues raised due to the "far-reaching implications" of the petition notwithstanding its categorical statement
that petitioner therein had no personality to file the suit. Indeed, there is a chain of cases where this liberal policy has been observed,
allowing ordinary citizens, members of Congress, and civic organizations to prosecute actions involving the constitutionality or validity of
laws, regulations and rulings.51

Thus, the Court has adopted a rule that even where the petitioners have failed to show direct injury, they have been allowed to sue
under the principle of "transcendental importance." Pertinent are the following cases:

(1) Chavez v. Public Estates Authority,52 where the Court ruled that the enforcement of the constitutional right to
information and the equitable diffusion of natural resources are matters of transcendental importance which clothe
the petitioner with locus standi;

(2) Bagong Alyansang Makabayan v. Zamora,53 wherein the Court held that "given the transcendental importance of the
issues involved, the Court may relax the standing requirements and allow the suit to prosper despite the lack of
direct injury to the parties seeking judicial review" of the Visiting Forces Agreement;

(3) Lim v. Executive Secretary,54 while the Court noted that the petitioners may not file suit in their capacity as taxpayers
absent a showing that "Balikatan 02-01" involves the exercise of Congress’ taxing or spending powers, it reiterated its ruling in
Bagong Alyansang Makabayan v. Zamora,55that in cases of transcendental importance, the cases must be settled
promptly and definitely and standing requirements may be relaxed.

By way of summary, the following rules may be culled from the cases decided by this Court. Taxpayers, voters, concerned citizens, and
legislators may be accorded standing to sue, provided that the following requirements are met:
 (1) the cases involve constitutional issues;

(2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is unconstitutional;

(3) for voters, there must be a showing of obvious interest in the validity of the election law in question;

(4) for concerned citizens, there must be a showing that the issues raised are of transcendental importance which must be
settled early; and

(5) for legislators, there must be a claim that the official action complained of infringes upon their prerogatives as legislators.

Significantly, recent decisions show a certain toughening in the Court’s attitude toward legal standing.

In Kilosbayan, Inc. v. Morato,56 the Court ruled that the status of Kilosbayan as a people’s organization does not give it the requisite
personality to question the validity of the on-line lottery contract, more so where it does not raise any issue of constitutionality.
Moreover, it cannot sue as a taxpayer absent any allegation that public funds are being misused. Nor can it sue as a concerned citizen
as it does not allege any specific injury it has suffered.

In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec,57 the Court reiterated the "direct injury" test with
respect to concerned citizens’ cases involving constitutional issues. It held that "there must be a showing that the citizen personally
suffered some actual or threatened injury arising from the alleged illegal official act."

In Lacson v. Perez,58 the Court ruled that one of the petitioners, Laban ng Demokratikong Pilipino (LDP), is not a real party-in-interest
as it had not demonstrated any injury to itself or to its leaders, members or supporters.

In Sanlakas v. Executive Secretary,59 the Court ruled that only the petitioners who are members of Congress have standing to sue, as
they claim that the President’s declaration of a state of rebellion is a usurpation of the emergency powers of Congress, thus
impairing their legislative powers. As to petitioners Sanlakas, Partido Manggagawa, and Social Justice Society, the Court declared
them to be devoid of standing, equating them with the LDP in Lacson.

Now, the application of the above principles to the present petitions.

The locus standi of petitioners in G.R. No. 171396, particularly David and Llamas, is beyond doubt. The same holds true with
petitioners in G.R. No. 171409, Cacho-Olivares and Tribune Publishing Co. Inc. They alleged "direct injury" resulting from "illegal
arrest" and "unlawful search" committed by police operatives pursuant to PP 1017. Rightly so, the Solicitor General does not question
their legal standing.

In G.R. No. 171485, the opposition Congressmen alleged there was usurpation of legislative powers. They also raised the issue of
whether or not the concurrence of Congress is necessary whenever the alarming powers incident to Martial Law are used. Moreover, it
is in the interest of justice that those affected by PP 1017 can be represented by their Congressmen in bringing to the attention of the
Court the alleged violations of their basic rights.

In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa v. Enriquez,60 Kapatiran Ng Mga Naglilingkod sa
Pamahalaan ng Pilipinas, Inc. v. Tan,61 Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform,62
Basco v. Philippine Amusement and Gaming Corporation,63 and Tañada v. Tuvera,64 that 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.

In G.R. No. 171483, KMU’s assertion that PP 1017 and G.O. No. 5 violated its right to peaceful assembly may be deemed sufficient to
give it legal standing. Organizations may be granted standing to assert the rights of their members.65 We take judicial notice of
the announcement by the Office of the President banning all rallies and canceling all permits for public assemblies following the
issuance of PP 1017 and G.O. No. 5.

In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the Integrated Bar of the Philippines (IBP) have no legal
standing, having failed to allege any direct or potential injury which the IBP as an institution or its members may suffer as a
consequence of the issuance of PP No. 1017 and G.O. No. 5. In Integrated Bar of the Philippines v. Zamora,66 the Court held that the
mere invocation by the IBP of its duty to preserve the rule of law and nothing more, while undoubtedly true, is not sufficient to clothe it
with standing in this case. This is too general an interest which is shared by other groups and the whole citizenry. However, in view of
the transcendental importance of the issue, this Court declares that petitioner have locus standi.

In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the instant petition as there are no allegations of illegal
disbursement of public funds. The fact that she is a former Senator is of no consequence. She can no longer sue as a legislator on the
allegation that her prerogatives as a lawmaker have been impaired by PP 1017 and G.O. No. 5. Her claim that she is a media
personality will not likewise aid her because there was no showing that the enforcement of these issuances prevented her from
pursuing her occupation. Her submission that she has pending electoral protest before the Presidential Electoral Tribunal is likewise of
no relevance. She has not sufficiently shown that PP 1017 will affect the proceedings or result of her case. But considering once more
the transcendental importance of the issue involved, this Court may relax the standing rules.

It must always be borne in mind that the question of locus standi is but corollary to the bigger question of proper exercise of judicial
power. This is the underlying legal tenet of the "liberality doctrine" on legal standing. It cannot be doubted that the validity of PP No.
1017 and G.O. No. 5 is a judicial question which is of paramount importance to the Filipino people. To paraphrase Justice Laurel, the
whole of Philippine society now waits with bated breath the ruling of this Court on this very critical matter. The petitions thus call for the
application of the "transcendental importance" doctrine, a relaxation of the standing requirements for the petitioners in the "PP 1017
cases."1avvphil.net

This Court holds that all the petitioners herein have locus standi.

Incidentally, it is not proper to implead President Arroyo as respondent. Settled is the doctrine that the President, during his tenure of
office or actual incumbency,67 may not be sued in any civil or criminal case, and there is no need to provide for it in the Constitution or
law. It will degrade the dignity of the high office of the President, the Head of State, if he can be dragged into court litigations while
serving as such. Furthermore, it is important that he be freed from any form of harassment, hindrance or distraction to enable him to
fully attend to the performance of his official duties and functions. Unlike the legislative and judicial branch, only one constitutes the
executive branch and anything which impairs his usefulness in the discharge of the many great and important duties imposed upon him
by the Constitution necessarily impairs the operation of the Government. However, this does not mean that the President is not
accountable to anyone. Like any other official, he remains accountable to the people 68 but he may be removed from office only in the
mode provided by law and that is by impeachment.69

B. SUBSTANTIVE

I. Review of Factual Bases

Petitioners maintain that PP 1017 has no factual basis. Hence, it was not "necessary" for President Arroyo to issue such Proclamation.

The issue of whether the Court may review the factual bases of the President’s exercise of his Commander-in-Chief power has reached
its distilled point - from the indulgent days of Barcelon v. Baker70 and Montenegro v. Castaneda71 to the volatile era of Lansang v.
Garcia,72 Aquino, Jr. v. Enrile,73 and Garcia-Padilla v. Enrile.74 The tug-of-war always cuts across the line defining "political questions,"
particularly those questions "in regard to which full discretionary authority has been delegated to the legislative or executive branch of
the government."75 Barcelon and Montenegro were in unison in declaring that the authority to decide whether an exigency has
arisen belongs to the President and his decision is final and conclusive on the courts. Lansang took the opposite view. There,
the members of the Court were unanimous in the conviction that the Court has the authority to inquire into the existence of factual
bases in order to determine their constitutional sufficiency. From the principle of separation of powers, it shifted the focus to the
system of checks and balances, "under which the President is supreme, x x x only if and when he acts within the sphere
allotted to him by the 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."76 In 1973, the unanimous Court of Lansang was divided in
Aquino v. Enrile.77 There, the Court was almost evenly divided on the issue of whether the validity of the imposition of Martial Law is a
political or justiciable question.78 Then came Garcia-Padilla v. Enrile which greatly diluted Lansang. It declared that there is a need to
re-examine the latter case, ratiocinating that "in times of war or national emergency, the President must be given absolute
control for the very life of the nation and the government is in great peril. The President, it intoned, is answerable only to his
conscience, the People, and God."79

The Integrated Bar of the Philippines v. Zamora80 -- a recent case most pertinent to these cases at bar -- echoed a principle similar to
Lansang. While the Court considered the President’s "calling-out" power as a discretionary power solely vested in his wisdom, it
stressed that "this does not prevent an examination of whether such power was exercised within permissible constitutional
limits or whether it was exercised in a manner constituting grave abuse of discretion."This ruling is mainly a result of the Court’s
reliance on Section 1, Article VIII of 1987 Constitution which fortifies the authority of the courts to determine in an appropriate action the
validity of the acts of the political departments. Under the new definition of judicial power, the courts are authorized 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." The latter part of the authority represents a broadening of judicial power to enable the courts of justice to review
what was before a forbidden territory, to wit, the discretion of the political departments of the government.81 It speaks of judicial
prerogative not only in terms of power but also of duty.82

As to how the Court may inquire into the President’s exercise of power, Lansang adopted the test that "judicial inquiry can go no further
than to satisfy the Court not that the President’s decision is correct," but that "the President did not act arbitrarily." Thus, the standard
laid down is not correctness, but arbitrariness.83 In Integrated Bar of the Philippines, this Court further ruled that "it is incumbent upon
the petitioner to show that the President’s decision is totally bereft of factual basis" and that if he fails, by way of proof, to
support his assertion, then "this Court cannot undertake an independent investigation beyond the pleadings."

Petitioners failed to show that President Arroyo’s exercise of the calling-out power, by issuing PP 1017, is totally bereft of factual basis.
A reading of the Solicitor General’s Consolidated Comment and Memorandum shows a detailed narration of the events leading to the
issuance of PP 1017, with supporting reports forming part of the records. Mentioned are the escape of the Magdalo Group, their
audacious threat of the Magdalo D-Day, the defections in the military, particularly in the Philippine Marines, and the reproving
statements from the communist leaders. There was also the Minutes of the Intelligence Report and Security Group of the Philippine
Army showing the growing alliance between the NPA and the military. Petitioners presented nothing to refute such events. Thus, absent
any contrary allegations, the Court is convinced that the President was justified in issuing PP 1017 calling for military aid.

Indeed, judging the seriousness of the incidents, President Arroyo was not expected to simply fold her arms and do nothing to prevent
or suppress what she believed was lawless violence, invasion or rebellion. However, the exercise of such power or duty must not stifle
liberty.

II. Constitutionality of PP 1017 and G.O. No. 5

Doctrines of Several Political Theorists
on the Power of the President in Times of Emergency

This case brings to fore a contentious subject -- the power of the President in times of emergency. A glimpse at the various political
theories relating to this subject provides an adequate backdrop for our ensuing discussion.

John Locke, describing the architecture of civil government, called upon the English doctrine of prerogative to cope with the problem of
emergency. In times of danger to the nation, positive law enacted by the legislature might be inadequate or even a fatal obstacle to the
promptness of action necessary to avert catastrophe. In these situations, the Crown retained a prerogative "power to act according to
discretion for the public good, without the proscription of the law and sometimes even against it."84 But Locke recognized that
this moral restraint might not suffice to avoid abuse of prerogative powers. Who shall judge the need for resorting to the
prerogative and how may its abuse be avoided? Here, Locke readily admitted defeat, suggesting that "the people have no other
remedy in this, as in all other cases where they have no judge on earth, but to appeal to Heaven."85

Jean-Jacques Rousseau also assumed the need for temporary suspension of democratic processes of government in time of
emergency. According to him:

The inflexibility of the laws, which prevents them from adopting themselves to circumstances, may, in certain cases, render them
disastrous and make them bring about, at a time of crisis, the ruin of the State…

It is wrong therefore to wish to make political institutions as strong as to render it impossible to suspend their operation. Even Sparta
allowed its law to lapse...

If the peril is of such a kind that the paraphernalia of the laws are an obstacle to their preservation, the method is to nominate a
supreme lawyer, who shall silence all the laws and suspend for a moment the sovereign authority. In such a case, there is no doubt
about the general will, and it clear that the people’s first intention is that the State shall not perish.86

Rosseau did not fear the abuse of the emergency dictatorship or "supreme magistracy" as he termed it. For him, it would more likely
be cheapened by "indiscreet use." He was unwilling to rely upon an "appeal to heaven." Instead, he relied upon a tenure of office of
prescribed duration to avoid perpetuation of the dictatorship.87

John Stuart Mill concluded his ardent defense of representative government: "I am far from condemning, in cases of extreme
necessity, the assumption of absolute power in the form of a temporary dictatorship."88

Nicollo Machiavelli’s view of emergency powers, as one element in the whole scheme of limited government, furnished an ironic
contrast to the Lockean theory of prerogative. He recognized and attempted to bridge this chasm in democratic political theory, thus:

Now, in a well-ordered society, it should never be necessary to resort to extra –constitutional measures; for although they may for a
time be beneficial, yet the precedent is pernicious, for if the practice is once established for good objects, they will in a little while be
disregarded under that pretext but for evil purposes. Thus, no republic will ever be perfect if she has not by law provided for everything,
having a remedy for every emergency and fixed rules for applying it.89

Machiavelli – in contrast to Locke, Rosseau and Mill – sought to incorporate into the constitution a regularized system of standby
emergency powers to be invoked with suitable checks and controls in time of national danger. He attempted forthrightly to meet the
problem of combining a capacious reserve of power and speed and vigor in its application in time of emergency, with effective
constitutional restraints.90

Contemporary political theorists, addressing themselves to the problem of response to emergency by constitutional democracies, have
employed the doctrine of constitutional dictatorship.91 Frederick M. Watkins saw "no reason why absolutism should not be used as a
means for the defense of liberal institutions," provided it "serves to protect established institutions from the danger of
permanent injury in a period of temporary emergency and is followed by a prompt return to the previous forms of political
life."92 He recognized the two (2) key elements of the problem of emergency governance, as well as all constitutional governance:
increasing administrative powers of the executive, while at the same time "imposing limitation upon that power."93 Watkins
placed his real faith in a scheme of constitutional dictatorship. These are the conditions of success of such a dictatorship: "The period
of dictatorship must be relatively short…Dictatorship should always be strictly legitimate in character…Final authority to
determine the need for dictatorship in any given case must never rest with the dictator himself…"94 and the objective of such an
emergency dictatorship should be "strict political conservatism."

Carl J. Friedrich cast his analysis in terms similar to those of Watkins.95 "It is a problem of concentrating power – in a government where
power has consciously been divided – to cope with… situations of unprecedented magnitude and gravity. There must be a broad grant
of powers, subject to equally strong limitations as to who shall exercise such powers, when, for how long, and to what end." 96 Friedrich,
too, offered criteria for judging the adequacy of any of scheme of emergency powers, to wit: "The emergency executive must be
appointed by constitutional means – i.e., he must be legitimate; he should not enjoy power to determine the existence of an
emergency; emergency powers should be exercised under a strict time limitation; and last, the objective of emergency action
must be the defense of the constitutional order."97

Clinton L. Rossiter, after surveying the history of the employment of emergency powers in Great Britain, France, Weimar, Germany and
the United States, reverted to a description of a scheme of "constitutional dictatorship" as solution to the vexing problems presented by
emergency.98 Like Watkins and Friedrich, he stated a priori the conditions of success of the "constitutional dictatorship," thus:

1) No general regime or particular institution of constitutional dictatorship should be initiated unless it is necessary or even
indispensable to the preservation of the State and its constitutional order…

2) …the decision to institute a constitutional dictatorship should never be in the hands of the man or men who will constitute
the dictator…

3) No government should initiate a constitutional dictatorship without making specific provisions for its termination…

4) …all uses of emergency powers and all readjustments in the organization of the government should be effected in pursuit of
constitutional or legal requirements…

5) … no dictatorial institution should be adopted, no right invaded, no regular procedure altered any more than is absolutely
necessary for the conquest of the particular crisis . . .

6) The measures adopted in the prosecution of the a constitutional dictatorship should never be permanent in character or
effect…

7) The dictatorship should be carried on by persons representative of every part of the citizenry interested in the defense of the
existing constitutional order. . .

8) Ultimate responsibility should be maintained for every action taken under a constitutional dictatorship. . .

9) The decision to terminate a constitutional dictatorship, like the decision to institute one should never be in the hands of the
man or men who constitute the dictator. . .

10) No constitutional dictatorship should extend beyond the termination of the crisis for which it was instituted…

11) …the termination of the crisis must be followed by a complete return as possible to the political and governmental
conditions existing prior to the initiation of the constitutional dictatorship…99

Rossiter accorded to legislature a far greater role in the oversight exercise of emergency powers than did Watkins. He would secure to
Congress final responsibility for declaring the existence or termination of an emergency, and he places great faith in the effectiveness of
congressional investigating committees.100

Scott and Cotter, in analyzing the above contemporary theories in light of recent experience, were one in saying that, "the suggestion
that democracies surrender the control of government to an authoritarian ruler in time of grave danger to the nation is not
based upon sound constitutional theory." To appraise emergency power in terms of constitutional dictatorship serves merely to
distort the problem and hinder realistic analysis. It matters not whether the term "dictator" is used in its normal sense (as applied to
authoritarian rulers) or is employed to embrace all chief executives administering emergency powers. However used, "constitutional
dictatorship" cannot be divorced from the implication of suspension of the processes of constitutionalism. Thus, they favored instead
the "concept of constitutionalism" articulated by Charles H. McIlwain:

A concept of constitutionalism which is less misleading in the analysis of problems of emergency powers, and which is consistent with
the findings of this study, is that formulated by Charles H. McIlwain. While it does not by any means necessarily exclude some
indeterminate limitations upon the substantive powers of government, full emphasis is placed upon procedural limitations, and
political responsibility. McIlwain clearly recognized the need to repose adequate power in government. And in discussing the
meaning of constitutionalism, he insisted that the historical and proper test of constitutionalism was the existence of adequate
processes for keeping government responsible. He refused to equate constitutionalism with the enfeebling of government by an
exaggerated emphasis upon separation of powers and substantive limitations on governmental power. He found that the really effective
checks on despotism have consisted not in the weakening of government but, but rather in the limiting of it; between which there is a
great and very significant difference. In associating constitutionalism with "limited" as distinguished from "weak" government,
McIlwain meant government limited to the orderly procedure of law as opposed to the processes of force. The two
fundamental correlative elements of constitutionalism for which all lovers of liberty must yet fight are the legal limits to
arbitrary power and a complete political responsibility of government to the governed.101

In the final analysis, the various approaches to emergency of the above political theorists –- from Lock’s "theory of prerogative," to
Watkins’ doctrine of "constitutional dictatorship" and, eventually, to McIlwain’s "principle of constitutionalism" --- ultimately aim to solve
one real problem in emergency governance, i.e., that of allotting increasing areas of discretionary power to the Chief Executive,
while insuring that such powers will be exercised with a sense of political responsibility and under effective limitations and
checks.

Our Constitution has fairly coped with this problem. Fresh from the fetters of a repressive regime, the 1986 Constitutional Commission,
in drafting the 1987 Constitution, endeavored to create a government in the concept of Justice Jackson’s "balanced power structure."102
Executive, legislative, and judicial powers are dispersed to the President, the Congress, and the Supreme Court, respectively. Each is
supreme within its own sphere. But none has the monopoly of power in times of emergency. Each branch is given a role to
serve as limitation or check upon the other. This system does not weaken the President, it just limits his power, using the language
of McIlwain. In other words, in times of emergency, our Constitution reasonably demands that we repose a certain amount of faith in the
basic integrity and wisdom of the Chief Executive but, at the same time, it obliges him to operate within carefully prescribed
procedural limitations.

a. "Facial Challenge"

Petitioners contend that PP 1017 is void on its face because of its "overbreadth." They claim that its enforcement encroached on both
unprotected and protected rights under Section 4, Article III of the Constitution and sent a "chilling effect" to the citizens.

A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.

First and foremost, the overbreadth doctrine is an analytical tool developed for testing "on their faces" statutes in free speech cases,
also known under the American Law as First Amendment cases.103

A plain reading of PP 1017 shows that it is not primarily directed to speech or even speech-related conduct. It is actually a call upon the
AFP to prevent or suppress all forms of lawless violence. In United States v. Salerno,104 the US Supreme Court held that "we have
not recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment" (freedom of speech).

Moreover, the overbreadth doctrine is not intended for testing the validity of a law that "reflects legitimate state interest in maintaining
comprehensive control over harmful, constitutionally unprotected conduct." Undoubtedly, lawless violence, insurrection and rebellion
are considered "harmful" and "constitutionally unprotected conduct." In Broadrick v. Oklahoma,105 it was held:

It remains a ‘matter of no little difficulty’ to determine when a law may properly be held void on its face and when ‘such summary action’
is inappropriate. But the plain import of our cases is, at the very least, that facial overbreadth adjudication is an exception to
our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected
behavior that it forbids the State to sanction moves from ‘pure speech’ toward conduct and that conduct –even if expressive –
falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive
controls over harmful, constitutionally unprotected conduct.

Thus, claims of facial overbreadth are entertained in cases involving statutes which, by their terms, seek to regulate only "spoken
words" and again, that "overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal
laws that are sought to be applied to protected conduct."106 Here, the incontrovertible fact remains that PP 1017 pertains to a
spectrum of conduct, not free speech, which is manifestly subject to state regulation.

Second, facial invalidation of laws is considered as "manifestly strong medicine," to be used "sparingly and only as a last resort,"
and is "generally disfavored;"107 The reason for this is obvious. Embedded in the traditional rules governing constitutional adjudication
is the principle that a person to whom a law may be applied will not be heard to challenge a law on the ground that it may conceivably
be applied unconstitutionally to others, i.e., in other situations not before the Court.108 A writer and scholar in Constitutional Law
explains further:

The most distinctive feature of the overbreadth technique is that it marks an exception to some of the usual rules of
constitutional litigation. Ordinarily, a particular litigant claims that a statute is unconstitutional as applied to him or her; if the
litigant prevails, the courts carve away the unconstitutional aspects of the law by invalidating its improper applications on a
case to case basis. Moreover, challengers to a law are not permitted to raise the rights of third parties and can only assert
their own interests. In overbreadth analysis, those rules give way; challenges are permitted to raise the rights of third parties;
and the court invalidates the entire statute "on its face," not merely "as applied for" so that the overbroad law becomes unenforceable
until a properly authorized court construes it more narrowly. The factor that motivates courts to depart from the normal adjudicatory
rules is the concern with the "chilling;" deterrent effect of the overbroad statute on third parties not courageous enough to bring suit. The
Court assumes that an overbroad law’s "very existence may cause others not before the court to refrain from constitutionally protected
speech or expression." An overbreadth ruling is designed to remove that deterrent effect on the speech of those third parties.

In other words, a facial challenge using the overbreadth doctrine will require the Court to examine PP 1017 and pinpoint its flaws and
defects, not on the basis of its actual operation to petitioners, but on the assumption or prediction that its very existence may cause
others not before the Court to refrain from constitutionally protected speech or expression. In Younger v. Harris,109 it was held that:

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute
is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the relative remoteness of the controversy,
the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of the required
line-by-line analysis of detailed statutes,...ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional
questions, whichever way they might be decided.

And third, a facial challenge on the ground of overbreadth is the most difficult challenge to mount successfully, since the challenger
must establish that there can be no instance when the assailed law may be valid. Here, petitioners did not even attempt to show
whether this situation exists.

Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness. This, too, is unwarranted.

Related to the "overbreadth" doctrine is the "void for vagueness doctrine" which holds that "a law is facially invalid if men of common
intelligence must necessarily guess at its meaning and differ as to its application."110 It is subject to the same principles
governing overbreadth doctrine. For one, it is also an analytical tool for testing "on their faces" statutes in free speech cases. And like
overbreadth, it is said that a litigant may challenge a statute on its face only if it is vague in all its possible applications. Again,
petitioners did not even attempt to show that PP 1017 is vague in all its application. They also failed to establish that men of
common intelligence cannot understand the meaning and application of PP 1017.

b. Constitutional Basis of PP 1017

Now on the constitutional foundation of PP 1017.

The operative portion of PP 1017 may be divided into three important provisions, thus:

First provision:

"by virtue of the power vested upon me by Section 18, Artilce VII … do hereby command the Armed Forces of the Philippines, to
maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well any act of insurrection or
rebellion"

Second provision:

"and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my
direction;"

Third provision:

"as provided in Section 17, Article XII of the Constitution do hereby declare a State of National Emergency."

First Provision: Calling-out Power

The first provision pertains to the President’s calling-out power. In Sanlakas v. Executive Secretary,111 this Court, through Mr. Justice
Dante O. Tinga, held that Section 18, Article VII of the Constitution reproduced as follows:

Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary,
he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or
rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas
corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The
Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation
or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the
same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall
persist and public safety requires it.

The Congress, if not in session, shall within twenty-four hours following such proclamation or suspension, convene in accordance with
its rules without need of a call.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual bases of the
proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision
thereon within thirty days from its filing.

A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative
assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to
function, nor automatically suspend the privilege of the writ.

The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly
connected with invasion.

During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days,
otherwise he shall be released.

grants the President, as Commander-in-Chief, a "sequence" of graduated powers. From the most to the least benign, these are: the
calling-out power, the power to suspend the privilege of the writ of habeas corpus, and the power to declare Martial Law. Citing
Integrated Bar of the Philippines v. Zamora,112 the Court ruled that the only criterion for the exercise of the calling-out power is that
"whenever it becomes necessary," the President may call the armed forces "to prevent or suppress lawless violence, invasion or
rebellion." Are these conditions present in the instant cases? As stated earlier, considering the circumstances then prevailing,
President Arroyo found it necessary to issue PP 1017. Owing to her Office’s vast intelligence network, she is in the best position to
determine the actual condition of the country.

Under the calling-out power, the President may summon the armed forces to aid him in suppressing lawless violence, invasion and
rebellion. This involves ordinary police action. But every act that goes beyond the President’s calling-out power is considered illegal or
ultra vires. For this reason, a President must be careful in the exercise of his powers. He cannot invoke a greater power when he
wishes to act under a lesser power. There lies the wisdom of our Constitution, the greater the power, the greater are the limitations.

It is pertinent to state, however, that there is a distinction between the President’s authority to declare a "state of rebellion" (in Sanlakas)
and the authority to proclaim a state of national emergency. While President Arroyo’s authority to declare a "state of rebellion"
emanates from her powers as Chief Executive, the statutory authority cited in Sanlakas was Section 4, Chapter 2, Book II of the
Revised Administrative Code of 1987, which provides:

SEC. 4. – Proclamations. – Acts of the President fixing a date or declaring a status or condition of public moment or interest, upon the
existence of which the operation of a specific law or regulation is made to depend, shall be promulgated in proclamations which shall
have the force of an executive order.

President Arroyo’s declaration of a "state of rebellion" was merely an act declaring a status or condition of public moment or interest, a
declaration allowed under Section 4 cited above. Such declaration, in the words of Sanlakas, is harmless, without legal significance,
and deemed not written. In these cases, PP 1017 is more than that. In declaring a state of national emergency, President Arroyo did not
only rely on Section 18, Article VII of the Constitution, a provision calling on the AFP to prevent or suppress lawless violence, invasion
or rebellion. She also relied on Section 17, Article XII, a provision on the State’s extraordinary power to take over privately-owned public
utility and business affected with public interest. Indeed, PP 1017 calls for the exercise of an awesome power. Obviously, such
Proclamation cannot be deemed harmless, without legal significance, or not written, as in the case of Sanlakas.

Some of the petitioners vehemently maintain that PP 1017 is actually a declaration of Martial Law. It is no so. What defines the
character of PP 1017 are its wordings. It is plain therein that what the President invoked was her calling-out power.

The declaration of Martial Law is a "warn[ing] to citizens that the military power has been called upon by the executive to assist in the
maintenance of law and order, and that, while the emergency lasts, they must, upon pain of arrest and punishment, not commit any
acts which will in any way render more difficult the restoration of order and the enforcement of law."113

In his "Statement before the Senate Committee on Justice" on March 13, 2006, Mr. Justice Vicente V. Mendoza,114 an authority in
constitutional law, said that of the three powers of the President as Commander-in-Chief, the power to declare Martial Law poses the
most severe threat to civil liberties. It is a strong medicine which should not be resorted to lightly. It cannot be used to stifle or persecute
critics of the government. It is placed in the keeping of the President for the purpose of enabling him to secure the people from harm
and to restore order so that they can enjoy their individual freedoms. In fact, Section 18, Art. VII, provides:
A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative
assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to
function, nor automatically suspend the privilege of the writ.

Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no more than a call by the President to the armed
forces to prevent or suppress lawless violence. As such, it cannot be used to justify acts that only under a valid declaration of Martial
Law can be done. Its use for any other purpose is a perversion of its nature and scope, and any act done contrary to its command is
ultra vires.

Justice Mendoza further stated that specifically, (a) arrests and seizures without judicial warrants; (b) ban on public assemblies; (c)
take-over of news media and agencies and press censorship; and (d) issuance of Presidential Decrees, are powers which can be
exercised by the President as Commander-in-Chief only where there is a valid declaration of Martial Law or suspension of the writ of
habeas corpus.

Based on the above disquisition, it is clear that PP 1017 is not a declaration of Martial Law. It is merely an exercise of President
Arroyo’s calling-out power for the armed forces to assist her in preventing or suppressing lawless violence.

Second Provision: "Take Care" Power

The second provision pertains to the power of the President to ensure that the laws be faithfully executed. This is based on Section 17,
Article VII which reads:

SEC. 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be
faithfully executed.

As the Executive in whom the executive power is vested, 115 the primary function of the President is to enforce the laws as well as to
formulate policies to be embodied in existing laws. He sees to it that all laws are enforced by the officials and employees of his
department. Before assuming office, he is required to take an oath or affirmation to the effect that as President of the Philippines, he
will, among others, "execute its laws."116 In the exercise of such function, the President, if needed, may employ the powers attached to
his office as the Commander-in-Chief of all the armed forces of the country, 117 including the Philippine National Police118 under the
Department of Interior and Local Government.119

Petitioners, especially Representatives Francis Joseph G. Escudero, Satur Ocampo, Rafael Mariano, Teodoro Casiño, Liza Maza, and
Josel Virador argue that PP 1017 is unconstitutional as it arrogated upon President Arroyo the power to enact laws and decrees in
violation of Section 1, Article VI of the Constitution, which vests the power to enact laws in Congress. They assail the clause "to
enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my
direction."

Petitioners’ contention is understandable. A reading of PP 1017 operative clause shows that it was lifted120 from Former President
Marcos’ Proclamation No. 1081, which partly reads:

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by virtue of the powers vested upon me by Article VII,
Section 10, Paragraph (2) of the Constitution, do hereby place the entire Philippines as defined in Article 1, Section 1 of the Constitution
under martial law and, in my capacity as their Commander-in-Chief, do hereby command the Armed Forces of the Philippines, to
maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well as any act of
insurrection or rebellion and to enforce obedience to all the laws and decrees, orders and regulations promulgated by me
personally or upon my direction.

We all know that it was PP 1081 which granted President Marcos legislative power. Its enabling clause states: "to enforce obedience
to all the laws and decrees, orders and regulations promulgated by me personally or upon my direction." Upon the other hand,
the enabling clause of PP 1017 issued by President Arroyo is: to enforce obedience to all the laws and to all decrees, orders and
regulations promulgated by me personally or upon my direction."

Is it within the domain of President Arroyo to promulgate "decrees"?

PP 1017 states in part: "to enforce obedience to all the laws and decrees x x x promulgated by me personally or upon my
direction."

The President is granted an Ordinance Power under Chapter 2, Book III of Executive Order No. 292 (Administrative Code of 1987). She
may issue any of the following:
Sec. 2. Executive Orders. — Acts of the President providing for rules of a general or permanent character in implementation or
execution of constitutional or statutory powers shall be promulgated in executive orders.

Sec. 3. Administrative Orders. — Acts of the President which relate to particular aspect of governmental operations in pursuance of his
duties as administrative head shall be promulgated in administrative orders.

Sec. 4. Proclamations. — Acts of the President fixing a date or declaring a status or condition of public moment or interest, upon the
existence of which the operation of a specific law or regulation is made to depend, shall be promulgated in proclamations which shall
have the force of an executive order.

Sec. 5. Memorandum Orders. — Acts of the President on matters of administrative detail or of subordinate or temporary interest which
only concern a particular officer or office of the Government shall be embodied in memorandum orders.

Sec. 6. Memorandum Circulars. — Acts of the President on matters relating to internal administration, which the President desires to
bring to the attention of all or some of the departments, agencies, bureaus or offices of the Government, for information or compliance,
shall be embodied in memorandum circulars.

Sec. 7. General or Special Orders. — Acts and commands of the President in his capacity as Commander-in-Chief of the Armed Forces
of the Philippines shall be issued as general or special orders.

President Arroyo’s ordinance power is limited to the foregoing issuances. She cannot issue decrees similar to those issued by Former
President Marcos under PP 1081. Presidential Decrees are laws which are of the same category and binding force as statutes because
they were issued by the President in the exercise of his legislative power during the period of Martial Law under the 1973
Constitution.121

This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants President Arroyo the authority to promulgate
"decrees." Legislative power is peculiarly within the province of the Legislature. Section 1, Article VI categorically states that "[t]he
legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of
Representatives." To be sure, neither Martial Law nor a state of rebellion nor a state of emergency can justify President Arroyo’s
exercise of legislative power by issuing decrees.

Can President Arroyo enforce obedience to all decrees and laws through the military?

As this Court stated earlier, President Arroyo has no authority to enact decrees. It follows that these decrees are void and, therefore,
cannot be enforced. With respect to "laws," she cannot call the military to enforce or implement certain laws, such as customs laws,
laws governing family and property relations, laws on obligations and contracts and the like. She can only order the military, under PP
1017, to enforce laws pertinent to its duty to suppress lawless violence.

Third Provision: Power to Take Over

The pertinent provision of PP 1017 states:

x x x and to enforce obedience to all the laws and to all decrees, orders, and regulations promulgated by me personally or upon my
direction; and as provided in Section 17, Article XII of the Constitution do hereby declare a state of national emergency.

The import of this provision is that President Arroyo, during the state of national emergency under PP 1017, can call the military not
only to enforce obedience "to all the laws and to all decrees x x x" but also to act pursuant to the provision of Section 17, Article XII
which reads:

Sec. 17. In times of national emergency, when the public interest so requires, the State may, during the emergency and under
reasonable terms prescribed by it, temporarily take over or direct the operation of any privately-owned public utility or business affected
with public interest.

What could be the reason of President Arroyo in invoking the above provision when she issued PP 1017?

The answer is simple. During the existence of the state of national emergency, PP 1017 purports to grant the President, without any
authority or delegation from Congress, to take over or direct the operation of any privately-owned public utility or business affected with
public interest.

This provision was first introduced in the 1973 Constitution, as a product of the "martial law" thinking of the 1971 Constitutional
Convention.122 In effect at the time of its approval was President Marcos’ Letter of Instruction No. 2 dated September 22, 1972
instructing the Secretary of National Defense to take over "the management, control and operation of the Manila Electric Company, the
Philippine Long Distance Telephone Company, the National Waterworks and Sewerage Authority, the Philippine National Railways, the
Philippine Air Lines, Air Manila (and) Filipinas Orient Airways . . . for the successful prosecution by the Government of its effort to
contain, solve and end the present national emergency."

Petitioners, particularly the members of the House of Representatives, claim that President Arroyo’s inclusion of Section 17, Article XII
in PP 1017 is an encroachment on the legislature’s emergency powers.

This is an area that needs delineation.

A distinction must be drawn between the President’s authority to declare "a state of national emergency" and to exercise emergency
powers. To the first, as elucidated by the Court, Section 18, Article VII grants the President such power, hence, no legitimate
constitutional objection can be raised. But to the second, manifold constitutional issues arise.

Section 23, Article VI of the Constitution reads:

SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall have the sole
power to declare the existence of a state of war.

(2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to
such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner
withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof.

It may be pointed out that the second paragraph of the above provision refers not only to war but also to "other national emergency."
If the intention of the Framers of our Constitution was to withhold from the President the authority to declare a "state of national
emergency" pursuant to Section 18, Article VII (calling-out power) and grant it to Congress (like the declaration of the existence of a
state of war), then the Framers could have provided so. Clearly, they did not intend that Congress should first authorize the President
before he can declare a "state of national emergency." The logical conclusion then is that President Arroyo could validly declare the
existence of a state of national emergency even in the absence of a Congressional enactment.

But the exercise of emergency powers, such as the taking over of privately owned public utility or business affected with public interest,
is a different matter. This requires a delegation from Congress.

Courts have often said that constitutional provisions in pari materia are to be construed together. Otherwise stated, different clauses,
sections, and provisions of a constitution which relate to the same subject matter will be construed together and considered in the light
of each other.123 Considering that Section 17 of Article XII and Section 23 of Article VI, previously quoted, relate to national
emergencies, they must be read together to determine the limitation of the exercise of emergency powers.

Generally, Congress is the repository of emergency powers. This is evident in the tenor of Section 23 (2), Article VI authorizing it to
delegate such powers to the President. Certainly, a body cannot delegate a power not reposed upon it. However, knowing that
during grave emergencies, it may not be possible or practicable for Congress to meet and exercise its powers, the Framers of our
Constitution deemed it wise to allow Congress to grant emergency powers to the President, subject to certain conditions, thus:

(1) There must be a war or other emergency.

(2) The delegation must be for a limited period only.

(3) The delegation must be subject to such restrictions as the Congress may prescribe.

(4) The emergency powers must be exercised to carry out a national policy declared by Congress.124

Section 17, Article XII must be understood as an aspect of the emergency powers clause. The taking over of private business affected
with public interest is just another facet of the emergency powers generally reposed upon Congress. Thus, when Section 17 states that
the "the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the
operation of any privately owned public utility or business affected with public interest," it refers to Congress, not the President.
Now, whether or not the President may exercise such power is dependent on whether Congress may delegate it to him pursuant to a
law prescribing the reasonable terms thereof. Youngstown Sheet & Tube Co. et al. v. Sawyer,125 held:

It is clear that if the President had authority to issue the order he did, it must be found in some provision of the Constitution. And it is not
claimed that express constitutional language grants this power to the President. The contention is that presidential power should be
implied from the aggregate of his powers under the Constitution. Particular reliance is placed on provisions in Article II which say that
"The executive Power shall be vested in a President . . . .;" that "he shall take Care that the Laws be faithfully executed;" and that he
"shall be Commander-in-Chief of the Army and Navy of the United States.
The order cannot properly be sustained as an exercise of the President’s military power as Commander-in-Chief of the Armed Forces.
The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day
fighting in a theater of war. Such cases need not concern us here. Even though "theater of war" be an expanding concept, we
cannot with faithfulness to our constitutional system hold that the Commander-in-Chief of the Armed Forces has the ultimate
power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job
for the nation’s lawmakers, not for its military authorities.

Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the
President. In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the
idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws
he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall
make laws which the President is to execute. The first section of the first article says that "All legislative Powers herein
granted shall be vested in a Congress of the United States. . ."126

Petitioner Cacho-Olivares, et al. contends that the term "emergency" under Section 17, Article XII refers to "tsunami," "typhoon,"
"hurricane"and"similar occurrences." This is a limited view of "emergency."

Emergency, as a generic term, connotes the existence of conditions suddenly intensifying the degree of existing danger to life or well-
being beyond that which is accepted as normal. Implicit in this definitions are the elements of intensity, variety, and perception. 127
Emergencies, as perceived by legislature or executive in the United Sates since 1933, have been occasioned by a wide range of
situations, classifiable under three (3) principal heads: a) economic,128 b) natural disaster,129 and c) national security.130

"Emergency," as contemplated in our Constitution, is of the same breadth. It may include rebellion, economic crisis, pestilence or
epidemic, typhoon, flood, or other similar catastrophe of nationwide proportions or effect.131 This is evident in the Records of the
Constitutional Commission, thus:

MR. GASCON. Yes. What is the Committee’s definition of "national emergency" which appears in Section 13, page 5? It reads:

When the common good so requires, the State may temporarily take over or direct the operation of any privately owned public utility or
business affected with public interest.

MR. VILLEGAS. What I mean is threat from external aggression, for example, calamities or natural disasters.

MR. GASCON. There is a question by Commissioner de los Reyes. What about strikes and riots?

MR. VILLEGAS. Strikes, no; those would not be covered by the term "national emergency."

MR. BENGZON. Unless they are of such proportions such that they would paralyze government service.132

xxxxxx

MR. TINGSON. May I ask the committee if "national emergency" refers to military national emergency or could this be economic
emergency?"

MR. VILLEGAS. Yes, it could refer to both military or economic dislocations.

MR. TINGSON. Thank you very much.133

It may be argued that when there is national emergency, Congress may not be able to convene and, therefore, unable to delegate to
the President the power to take over privately-owned public utility or business affected with public interest.

In Araneta v. Dinglasan,134 this Court emphasized that legislative power, through which extraordinary measures are exercised, remains
in Congress even in times of crisis.

"x x x

After all the criticisms that have been made against the efficiency of the system of the separation of powers, the fact remains that the
Constitution has set up this form of government, with all its defects and shortcomings, in preference to the commingling of powers in
one man or group of men. The Filipino people by adopting parliamentary government have given notice that they share the faith of
other democracy-loving peoples in this system, with all its faults, as the ideal. The point is, under this framework of government,
legislation is preserved for Congress all the time, not excepting periods of crisis no matter how serious. Never in the history of the
United States, the basic features of whose Constitution have been copied in ours, have specific functions of the legislative branch of
enacting laws been surrendered to another department – unless we regard as legislating the carrying out of a legislative policy
according to prescribed standards; no, not even when that Republic was fighting a total war, or when it was engaged in a life-and-death
struggle to preserve the Union. The truth is that under our concept of constitutional government, in times of extreme perils more than in
normal circumstances ‘the various branches, executive, legislative, and judicial,’ given the ability to act, are called upon ‘to perform the
duties and discharge the responsibilities committed to them respectively."

Following our interpretation of Section 17, Article XII, invoked by President Arroyo in issuing PP 1017, this Court rules that such
Proclamation does not authorize her during the emergency to temporarily take over or direct the operation of any privately owned public
utility or business affected with public interest without authority from Congress.

Let it be emphasized that while the President alone can declare a state of national emergency, however, without legislation, he has no
power to take over privately-owned public utility or business affected with public interest. The President cannot decide whether
exceptional circumstances exist warranting the take over of privately-owned public utility or business affected with public interest. Nor
can he determine when such exceptional circumstances have ceased. Likewise, without legislation, the President has no power to
point out the types of businesses affected with public interest that should be taken over. In short, the President has no absolute
authority to exercise all the powers of the State under Section 17, Article VII in the absence of an emergency powers act passed by
Congress.

c. "AS APPLIED CHALLENGE"

One of the misfortunes of an emergency, particularly, that which pertains to security, is that military necessity and the guaranteed rights
of the individual are often not compatible. Our history reveals that in the crucible of conflict, many rights are curtailed and trampled
upon. Here, the right against unreasonable search and seizure; the right against warrantless arrest; and the freedom of
speech, of expression, of the press, and of assembly under the Bill of Rights suffered the greatest blow.

Of the seven (7) petitions, three (3) indicate "direct injury."

In G.R. No. 171396, petitioners David and Llamas alleged that, on February 24, 2006, they were arrested without warrants on their way
to EDSA to celebrate the 20th Anniversary of People Power I. The arresting officers cited PP 1017 as basis of the arrest.

In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co., Inc. claimed that on February 25, 2006, the CIDG
operatives "raided and ransacked without warrant" their office. Three policemen were assigned to guard their office as a possible
"source of destabilization." Again, the basis was PP 1017.

And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that their members were "turned away and dispersed" when
they went to EDSA and later, to Ayala Avenue, to celebrate the 20th Anniversary of People Power I.

A perusal of the "direct injuries" allegedly suffered by the said petitioners shows that they resulted from the implementation, pursuant
to G.O. No. 5, of PP 1017.

Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis of these illegal acts? In general, does the illegal
implementation of a law render it unconstitutional?

Settled is the rule that courts are not at liberty to declare statutes invalid although they may be abused and misabused 135 and may
afford an opportunity for abuse in the manner of application.136 The validity of a statute or ordinance is to be determined from its
general purpose and its efficiency to accomplish the end desired, not from its effects in a particular case.137 PP 1017 is merely an
invocation of the President’s calling-out power. Its general purpose is to command the AFP to suppress all forms of lawless violence,
invasion or rebellion. It had accomplished the end desired which prompted President Arroyo to issue PP 1021. But there is nothing in
PP 1017 allowing the police, expressly or impliedly, to conduct illegal arrest, search or violate the citizens’ constitutional rights.

Now, may this Court adjudge a law or ordinance unconstitutional on the ground that its implementor committed illegal acts? The answer
is no. The criterion by which the validity of the statute or ordinance is to be measured is the essential basis for the exercise of power,
and not a mere incidental result arising from its exertion.138 This is logical. Just imagine the absurdity of situations when laws
maybe declared unconstitutional just because the officers implementing them have acted arbitrarily. If this were so, judging from the
blunders committed by policemen in the cases passed upon by the Court, majority of the provisions of the Revised Penal Code would
have been declared unconstitutional a long time ago.

President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP 1017. General orders are "acts and commands of the
President in his capacity as Commander-in-Chief of the Armed Forces of the Philippines." They are internal rules issued by the
executive officer to his subordinates precisely for the proper and efficient administration of law. Such rules and regulations create no
relation except between the official who issues them and the official who receives them.139 They are based on and are the product of, a
relationship in which power is their source, and obedience, their object.140 For these reasons, one requirement for these rules to be valid
is that they must be reasonable, not arbitrary or capricious.
G.O. No. 5 mandates the AFP and the PNP to immediately carry out the "necessary and appropriate actions and measures to
suppress and prevent acts of terrorism and lawless violence."

Unlike the term "lawless violence" which is unarguably extant in our statutes and the Constitution, and which is invariably associated
with "invasion, insurrection or rebellion," the phrase "acts of terrorism" is still an amorphous and vague concept. Congress has yet to
enact a law defining and punishing acts of terrorism.

In fact, this "definitional predicament" or the "absence of an agreed definition of terrorism" confronts not only our country, but the
international community as well. The following observations are quite apropos:

In the actual unipolar context of international relations, the "fight against terrorism" has become one of the basic slogans when it comes
to the justification of the use of force against certain states and against groups operating internationally. Lists of states "sponsoring
terrorism" and of terrorist organizations are set up and constantly being updated according to criteria that are not always known to the
public, but are clearly determined by strategic interests.

The basic problem underlying all these military actions – or threats of the use of force as the most recent by the United States against
Iraq – consists in the absence of an agreed definition of terrorism.

Remarkable confusion persists in regard to the legal categorization of acts of violence either by states, by armed groups such as
liberation movements, or by individuals.

The dilemma can by summarized in the saying "One country’s terrorist is another country’s freedom fighter." The apparent contradiction
or lack of consistency in the use of the term "terrorism" may further be demonstrated by the historical fact that leaders of national
liberation movements such as Nelson Mandela in South Africa, Habib Bourgouiba in Tunisia, or Ahmed Ben Bella in Algeria, to mention
only a few, were originally labeled as terrorists by those who controlled the territory at the time, but later became internationally
respected statesmen.

What, then, is the defining criterion for terrorist acts – the differentia specifica distinguishing those acts from eventually legitimate acts of
national resistance or self-defense?

Since the times of the Cold War the United Nations Organization has been trying in vain to reach a consensus on the basic issue of
definition. The organization has intensified its efforts recently, but has been unable to bridge the gap between those who associate
"terrorism" with any violent act by non-state groups against civilians, state functionaries or infrastructure or military installations, and
those who believe in the concept of the legitimate use of force when resistance against foreign occupation or against systematic
oppression of ethnic and/or religious groups within a state is concerned.

The dilemma facing the international community can best be illustrated by reference to the contradicting categorization of organizations
and movements such as Palestine Liberation Organization (PLO) – which is a terrorist group for Israel and a liberation movement for
Arabs and Muslims – the Kashmiri resistance groups – who are terrorists in the perception of India, liberation fighters in that of Pakistan
– the earlier Contras in Nicaragua – freedom fighters for the United States, terrorists for the Socialist camp – or, most drastically, the
Afghani Mujahedeen (later to become the Taliban movement): during the Cold War period they were a group of freedom fighters for the
West, nurtured by the United States, and a terrorist gang for the Soviet Union. One could go on and on in enumerating examples of
conflicting categorizations that cannot be reconciled in any way – because of opposing political interests that are at the roots of those
perceptions.

How, then, can those contradicting definitions and conflicting perceptions and evaluations of one and the same group and its actions be
explained? In our analysis, the basic reason for these striking inconsistencies lies in the divergent interest of states. Depending on
whether a state is in the position of an occupying power or in that of a rival, or adversary, of an occupying power in a given territory, the
definition of terrorism will "fluctuate" accordingly. A state may eventually see itself as protector of the rights of a certain ethnic group
outside its territory and will therefore speak of a "liberation struggle," not of "terrorism" when acts of violence by this group are
concerned, and vice-versa.

The United Nations Organization has been unable to reach a decision on the definition of terrorism exactly because of these conflicting
interests of sovereign states that determine in each and every instance how a particular armed movement (i.e. a non-state actor) is
labeled in regard to the terrorists-freedom fighter dichotomy. A "policy of double standards" on this vital issue of international affairs has
been the unavoidable consequence.

This "definitional predicament" of an organization consisting of sovereign states – and not of peoples, in spite of the emphasis in the
Preamble to the United Nations Charter! – has become even more serious in the present global power constellation: one superpower
exercises the decisive role in the Security Council, former great powers of the Cold War era as well as medium powers are increasingly
being marginalized; and the problem has become even more acute since the terrorist attacks of 11 September 2001 I the United
States.141
The absence of a law defining "acts of terrorism" may result in abuse and oppression on the part of the police or military. An illustration
is when a group of persons are merely engaged in a drinking spree. Yet the military or the police may consider the act as an act of
terrorism and immediately arrest them pursuant to G.O. No. 5. Obviously, this is abuse and oppression on their part. It must be
remembered that an act can only be considered a crime if there is a law defining the same as such and imposing the corresponding
penalty thereon.

So far, the word "terrorism" appears only once in our criminal laws, i.e., in P.D. No. 1835 dated January 16, 1981 enacted by President
Marcos during the Martial Law regime. This decree is entitled "Codifying The Various Laws on Anti-Subversion and Increasing The
Penalties for Membership in Subversive Organizations." The word "terrorism" is mentioned in the following provision: "That one who
conspires with any other person for the purpose of overthrowing the Government of the Philippines x x x by force, violence, terrorism, x
x x shall be punished by reclusion temporal x x x."

P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist Party of the Philippines) enacted by President Corazon
Aquino on May 5, 1985. These two (2) laws, however, do not define "acts of terrorism." Since there is no law defining "acts of
terrorism," it is President Arroyo alone, under G.O. No. 5, who has the discretion to determine what acts constitute terrorism. Her
judgment on this aspect is absolute, without restrictions. Consequently, there can be indiscriminate arrest without warrants, breaking
into offices and residences, taking over the media enterprises, prohibition and dispersal of all assemblies and gatherings unfriendly to
the administration. All these can be effected in the name of G.O. No. 5. These acts go far beyond the calling-out power of the President.
Certainly, they violate the due process clause of the Constitution. Thus, this Court declares that the "acts of terrorism" portion of G.O.
No. 5 is unconstitutional.

Significantly, there is nothing in G.O. No. 5 authorizing the military or police to commit acts beyond what are necessary and
appropriate to suppress and prevent lawless violence, the limitation of their authority in pursuing the Order. Otherwise, such acts
are considered illegal.

We first examine G.R. No. 171396 (David et al.)

The Constitution provides that "the right of the people to be secured in their persons, houses, papers and effects against unreasonable
search and seizure of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant
and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized."142 The
plain import of the language of the Constitution is that searches, seizures and arrests are normally unreasonable unless authorized by
a validly issued search warrant or warrant of arrest. Thus, the fundamental protection given by this provision is that between person and
police must stand the protective authority of a magistrate clothed with power to issue or refuse to issue search warrants or warrants of
arrest.143

In the Brief Account144 submitted by petitioner David, certain facts are established: first, he was arrested without warrant; second, the
PNP operatives arrested him on the basis of PP 1017; third, he was brought at Camp Karingal, Quezon City where he was
fingerprinted, photographed and booked like a criminal suspect; fourth,he was treated brusquely by policemen who "held his head and
tried to push him" inside an unmarked car; fifth, he was charged with Violation of Batas Pambansa Bilang No. 880145 and Inciting to
Sedition; sixth, he was detained for seven (7) hours; and seventh,he was eventually released for insufficiency of evidence.

Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:

Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an
offense.

(b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it; and

x x x.

Neither of the two (2) exceptions mentioned above justifies petitioner David’s warrantless arrest. During the inquest for the charges of
inciting to sedition and violation of BP 880, all that the arresting officers could invoke was their observation that some rallyists were
wearing t-shirts with the invective "Oust Gloria Now" and their erroneous assumption that petitioner David was the leader of the rally.146
Consequently, the Inquest Prosecutor ordered his immediate release on the ground of insufficiency of evidence. He noted that
petitioner David was not wearing the subject t-shirt and even if he was wearing it, such fact is insufficient to charge him with inciting to
sedition. Further, he also stated that there is insufficient evidence for the charge of violation of BP 880 as it was not even known
whether petitioner David was the leader of the rally.147

But what made it doubly worse for petitioners David et al. is that not only was their right against warrantless arrest violated, but also
their right to peaceably assemble.
Section 4 of Article III guarantees:

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.

"Assembly" means a right on the part of the citizens to meet peaceably for consultation in respect to public affairs. It is a necessary
consequence of our republican institution and complements the right of speech. 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. In other words, like other rights embraced in the freedom of expression, the right to assemble is not subject to previous
restraint or censorship. It may not be conditioned upon the prior issuance of a permit or authorization from the government authorities
except, of course, if the assembly is intended to be held in a public place, a permit for the use of such place, and not for the assembly
itself, may be validly required.

The ringing truth here is that petitioner David, et al. were arrested while they were exercising their right to peaceful assembly. They
were not committing any crime, neither was there a showing of a clear and present danger that warranted the limitation of that right. As
can be gleaned from circumstances, the charges of inciting to sedition and violation of BP 880 were mere afterthought. Even the
Solicitor General, during the oral argument, failed to justify the arresting officers’ conduct. In De Jonge v. Oregon,148 it was held that
peaceable assembly cannot be made a crime, thus:

Peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for peaceable political action cannot be
proscribed. Those who assist in the conduct of such meetings cannot be branded as criminals on that score. The question, if the rights
of free speech and peaceful assembly are not to be preserved, is not as to the auspices under which the meeting was 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. If the persons assembling have committed crimes elsewhere, if they have formed or are engaged in a conspiracy
against the public peace and order, they may be prosecuted for their conspiracy or other violations of valid laws. But it is a different
matter when the State, instead of prosecuting them for such offenses, seizes upon mere participation in a peaceable
assembly and a lawful public discussion as the basis for a criminal charge.

On the basis of the above principles, the Court likewise considers the dispersal and arrest of the members of KMU et al. (G.R. No.
171483) unwarranted. Apparently, their dispersal was done merely on the basis of Malacañang’s directive canceling all permits
previously issued by local government units. This is arbitrary. The wholesale cancellation of all permits to rally is a blatant disregard of
the principle that "freedom of assembly 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."149 Tolerance is the rule and limitation is the exception. Only upon
a showing that an assembly presents a clear and present danger that the State may deny the citizens’ right to exercise it. Indeed,
respondents failed to show or convince the Court that the rallyists committed acts amounting to lawless violence, invasion or rebellion.
With the blanket revocation of permits, the distinction between protected and unprotected assemblies was eliminated.

Moreover, under BP 880, the authority to regulate assemblies and rallies is lodged with the local government units. They have the
power to issue permits and to revoke such permits after due notice and hearing on the determination of the presence of clear and
present danger. Here, petitioners were not even notified and heard on the revocation of their permits. 150 The first time they learned of it
was at the time of the dispersal. Such absence of notice is a fatal defect. When a person’s right is restricted by government action, it
behooves a democratic government to see to it that the restriction is fair, reasonable, and according to procedure.

G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom of speech i.e., the freedom of the press. Petitioners’
narration of facts, which the Solicitor General failed to refute, established the following: first, the Daily Tribune’s offices were searched
without warrant;second, the police operatives seized several materials for publication; third, the search was conducted at about 1:00 o’
clock in the morning of February 25, 2006; fourth, the search was conducted in the absence of any official of the Daily Tribune except
the security guard of the building; and fifth, policemen stationed themselves at the vicinity of the Daily Tribune offices.

Thereafter, a wave of warning came from government officials. Presidential Chief of Staff Michael Defensor was quoted as saying that
such raid was "meant to show a ‘strong presence,’ to tell media outlets not to connive or do anything that would help the
rebels in bringing down this government." Director General Lomibao further stated that "if they do not follow the standards –and
the standards are if they would contribute to instability in the government, or if they do not subscribe to what is in General
Order No. 5 and Proc. No. 1017 – we will recommend a ‘takeover.’" National Telecommunications Commissioner Ronald Solis
urged television and radio networks to "cooperate" with the government for the duration of the state of national emergency. He warned
that his agency will not hesitate to recommend the closure of any broadcast outfit that violates rules set out for media
coverage during times when the national security is threatened.151

The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays down the steps in the conduct of search and seizure.
Section 4 requires that a search warrant be issued upon probable cause in connection with one specific offence to be determined
personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce. Section 8
mandates that the search of a house, room, or any other premise be made in the presence of the lawful occupant thereof or any
member of his family or in the absence of the latter, in the presence of two (2) witnesses of sufficient age and discretion residing in the
same locality. And Section 9 states that the warrant must direct that it be served in the daytime, unless the property is on the person
or in the place ordered to be searched, in which case a direction may be inserted that it be served at any time of the day or night. All
these rules were violated by the CIDG operatives.
Not only that, the search violated petitioners’ freedom of the press. The best gauge of a free and democratic society rests in the degree
of freedom enjoyed by its media. In the Burgos v. Chief of Staff152 this Court held that --

As heretofore stated, the premises searched were the business and printing offices of the "Metropolitan Mail" and the "We Forum"
newspapers. As a consequence of the search and seizure, these premises were padlocked and sealed, with the further result that
the printing and publication of said newspapers were discontinued.

Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the press guaranteed under the
fundamental law, and constitutes a virtual denial of petitioners' freedom to express themselves in print. This state of being is
patently anathematic to a democratic framework where a free, alert and even militant press is essential for the political
enlightenment and growth of the citizenry.

While admittedly, the Daily Tribune was not padlocked and sealed like the "Metropolitan Mail" and "We Forum" newspapers in the
above case, yet it cannot be denied that the CIDG operatives exceeded their enforcement duties. The search and seizure of materials
for publication, the stationing of policemen in the vicinity of the The Daily Tribune offices, and the arrogant warning of government
officials to media, are plain censorship. It is that officious functionary of the repressive government who tells the citizen that he may
speak only if allowed to do so, and no more and no less than what he is permitted to say on pain of punishment should he be so rash
as to disobey.153 Undoubtedly, the The Daily Tribune was subjected to these arbitrary intrusions because of its anti-government
sentiments. This Court cannot tolerate the blatant disregard of a constitutional right even if it involves the most defiant of our citizens.
Freedom to comment on public affairs is essential to the vitality of a representative democracy. It is the duty of the courts to be watchful
for the constitutional rights of the citizen, and against any stealthy encroachments thereon. The motto should always be obsta
principiis.154

Incidentally, during the oral arguments, the Solicitor General admitted that the search of the Tribune’s offices and the seizure of its
materials for publication and other papers are illegal; and that the same are inadmissible "for any purpose," thus:

JUSTICE CALLEJO:

You made quite a mouthful of admission when you said that the policemen, when inspected the Tribune for the purpose of gathering
evidence and you admitted that the policemen were able to get the clippings. Is that not in admission of the admissibility of these
clippings that were taken from the Tribune?

SOLICITOR GENERAL BENIPAYO:

Under the law they would seem to be, if they were illegally seized, I think and I know, Your Honor, and these are inadmissible for any
purpose.155

xxxxxxxxx

SR. ASSO. JUSTICE PUNO:

These have been published in the past issues of the Daily Tribune; all you have to do is to get those past issues. So why do you have
to go there at 1 o’clock in the morning and without any search warrant? Did they become suddenly part of the evidence of rebellion or
inciting to sedition or what?

SOLGEN BENIPAYO:

Well, it was the police that did that, Your Honor. Not upon my instructions.

SR. ASSO. JUSTICE PUNO:

Are you saying that the act of the policeman is illegal, it is not based on any law, and it is not based on Proclamation 1017.

SOLGEN BENIPAYO:

It is not based on Proclamation 1017, Your Honor, because there is nothing in 1017 which says that the police could go and inspect
and gather clippings from Daily Tribune or any other newspaper.

SR. ASSO. JUSTICE PUNO:

Is it based on any law?

SOLGEN BENIPAYO:

As far as I know, no, Your Honor, from the facts, no.

SR. ASSO. JUSTICE PUNO:

So, it has no basis, no legal basis whatsoever?

SOLGEN BENIPAYO:

Maybe so, Your Honor. Maybe so, that is why I said, I don’t know if it is premature to say this, we do not condone this. If the people
who have been injured by this would want to sue them, they can sue and there are remedies for this.156

Likewise, the warrantless arrests and seizures executed by the police were, according to the Solicitor General, illegal and cannot be
condoned, thus:

CHIEF JUSTICE PANGANIBAN:

There seems to be some confusions if not contradiction in your theory.

SOLICITOR GENERAL BENIPAYO:

I don’t know whether this will clarify. The acts, the supposed illegal or unlawful acts committed on the occasion of 1017, as I said, it
cannot be condoned. You cannot blame the President for, as you said, a misapplication of the law. These are acts of the police
officers, that is their responsibility.157

The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in every aspect and "should result in no constitutional or
statutory breaches if applied according to their letter."

The Court has passed upon the constitutionality of these issuances. Its ratiocination has been exhaustively presented. At this point,
suffice it to reiterate that PP 1017 is limited to the calling out by the President of the military to prevent or suppress lawless violence,
invasion or rebellion. When in implementing its provisions, pursuant to G.O. No. 5, the military and the police committed acts which
violate the citizens’ rights under the Constitution, this Court has to declare such acts unconstitutional and illegal.

In this connection, Chief Justice Artemio V. Panganiban’s concurring opinion, attached hereto, is considered an integral part of this
ponencia.

SUMMATION

In sum, the lifting of PP 1017 through the issuance of PP 1021 – a supervening event – would have normally rendered this case moot
and academic. However, while PP 1017 was still operative, illegal acts were committed allegedly in pursuance thereof. Besides, there is
no guarantee that PP 1017, or one similar to it, may not again be issued. Already, there have been media reports on April 30, 2006 that
allegedly PP 1017 would be reimposed "if the May 1 rallies" become "unruly and violent." Consequently, the transcendental issues
raised by the parties should not be "evaded;" they must now be resolved to prevent future constitutional aberration.

The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a call by the President for the AFP to prevent or
suppress lawless violence. The proclamation is sustained by Section 18, Article VII of the Constitution and the relevant jurisprudence
discussed earlier. However, PP 1017’s extraneous provisions giving the President express or implied power (1) to issue decrees; (2) to
direct the AFP to enforce obedience to all laws even those not related to lawless violence as well as decrees promulgated by the
President; and (3) to impose standards on media or any form of prior restraint on the press, are ultra vires and unconstitutional. The
Court also rules that under Section 17, Article XII of the Constitution, the President, in the absence of a legislation, cannot take over
privately-owned public utility and private business affected with public interest.

In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the President – acting as Commander-in-Chief – addressed
to subalterns in the AFP to carry out the provisions of PP 1017. Significantly, it also provides a valid standard – that the military and the
police should take only the "necessary and appropriate actions and measures to suppress and prevent acts of lawless
violence."But the words "acts of terrorism" found in G.O. No. 5 have not been legally defined and made punishable by Congress and
should thus be deemed deleted from the said G.O. While "terrorism" has been denounced generally in media, no law has been enacted
to guide the military, and eventually the courts, to determine the limits of the AFP’s authority in carrying out this portion of G.O. No. 5.

On the basis of the relevant and uncontested facts narrated earlier, it is also pristine clear that (1) the warrantless arrest of petitioners
Randolf S. David and Ronald Llamas; (2) the dispersal of the rallies and warrantless arrest of the KMU and NAFLU-KMU members; (3)
the imposition of standards on media or any prior restraint on the press; and (4) the warrantless search of the Tribune offices and the
whimsical seizures of some articles for publication and other materials, are not authorized by the Constitution, the law and
jurisprudence. Not even by the valid provisions of PP 1017 and G.O. No. 5.

Other than this declaration of invalidity, this Court cannot impose any civil, criminal or administrative sanctions on the individual police
officers concerned. They have not been individually identified and given their day in court. The civil complaints or causes of action
and/or relevant criminal Informations have not been presented before this Court. Elementary due process bars this Court from making
any specific pronouncement of civil, criminal or administrative liabilities.

It is well to remember that military power is a means to an end and substantive civil rights are ends in themselves. How to give
the military the power it needs to protect the Republic without unnecessarily trampling individual rights is one of the eternal
balancing tasks of a democratic state.During emergency, governmental action may vary in breadth and intensity from normal times,
yet they should not be arbitrary as to unduly restrain our people’s liberty.

Perhaps, the vital lesson that we must learn from the theorists who studied the various competing political philosophies is that, it is
possible to grant government the authority to cope with crises without surrendering the two vital principles of constitutionalism: the
maintenance of legal limits to arbitrary power, and political responsibility of the government to the governed.158

WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017 is CONSTITUTIONAL insofar as it constitutes a call by
President Gloria Macapagal-Arroyo on the AFP to prevent or suppress lawless violence. However, the provisions of PP 1017
commanding the AFP to enforce laws not related to lawless violence, as well as decrees promulgated by the President, are declared
UNCONSTITUTIONAL. In addition, the provision in PP 1017 declaring national emergency under Section 17, Article VII of the
Constitution is CONSTITUTIONAL, but such declaration does not authorize the President to take over privately-owned public utility or
business affected with public interest without prior legislation.

G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and the PNP should implement PP 1017, i.e. whatever
is "necessary and appropriate actions and measures to suppress and prevent acts of lawless violence." Considering that "acts
of terrorism" have not yet been defined and made punishable by the Legislature, such portion of G.O. No. 5 is declared
UNCONSTITUTIONAL.

The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and warrantless arrest of the KMU and NAFLU-KMU
members during their rallies, in the absence of proof that these petitioners were committing acts constituting lawless violence, invasion
or rebellion and violating BP 880; the imposition of standards on media or any form of prior restraint on the press, as well as the
warrantless search of the Tribune offices and whimsical seizure of its articles for publication and other materials, are declared
UNCONSTITUTIONAL.

No costs.

SO ORDERED
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-68474 February 11, 1986

NUCLEAR FREE PHILIPPINE COALITION, ET AL., petitioners,

vs.
NATIONAL POWER CORPORATION, ET AL., respondents.

G.R. No. 70632 February 11, 1986

LORENZO M. TAÑADA, ET AL., petitioners,

vs.
PHILIPPINE ATOMIC ENERGY COMMISSION, ET AL., respondents.

RESOLUTION

PLANA, J.:

I. In G.R. No. 70632, (1) petitioners question the competence of respondent PAEC Commissioners to pass judgment on the safety of
the Philippine Nuclear Power Plant-1 PNPP-1 in PAEC Licensing Proceedings No. 1-77 without however seeking their ouster from
office, although "proven competence" is one of the qualifications prescribed by law for PAEC Commissioners. (2) Petitioners also assail
the validity of the motion (application) filed by the National Power Corporation (NPC) for the conversion of its construction permit into an
operating license for PNPP-1 on the principal ground that it contained no information regarding the financial qualifications of NPC, its
source of nuclear fuel, and insurance coverage for nuclear damage. (3) Petitioners finally charge respondent PAEC Commissioners
with bias and prejudgment.

1. The first issue must be resolved against the petitioners. Where the validity of an appointment is not challenged in an appropriate
proceeding, the question of competence is not within the field of judicial inquiry. If not considered a qualification the absence of which
would vitiate the appointment, competence is a matter of judgment that is addressed solely to the appointing power.

2. As regards the legal sufficiency of the NPC motion for conversion, petitioners contend that the deficiencies they have indicated are
jurisdictional infirmities which cannot be cured. The Court believes however that said deficiencies may be remedied and supplied in the
course of the hearing before PAEC. For this purpose, respondent-applicant NPC may submit pertinent testimonies and documents
when the PAEC hearing is re-opened, subject to controversion and counterproof of herein petitioners.

3. There is merit in the charge of bias and prejudgment. The PAEC pamphlets- particularly Annexes "JJ", "KK" and "LL" of the petition
(G.R. 70632)-clearly indicate the pre-judgment that PNPP-1 is safe.

Exhibit "JJ" is an official PAEC 1985 pamphlet entitled "The Philippine Nuclear Power Plant-l." It gives an overview specifically of
PNPP-1, lauds the safety of nuclear power, and concludes with a statement of the benefits to be derived when the PNPP-1 start
operation.

. . .When the PNPP-1 starts operating, it will generate a power of 620 megawatts enough to supply 15 percent of the electricity needs in
Luzon. This is estimated to result in savings of US $ 160 million a year, representing the amount of oil displaced.

Aside from being a reliable source of electricity, nuclear power has an excellect safety record and has been found to result in lower
occupational and public risks than fossil fired (coal or oil) stations. (p. 6. Emphasis supplied.)

The second pamphlet (Exh. "KK") is entitled "NUCLEAR POWER-SAFE CLEAN ECONOMICAL AND AVAILABLE." On the surface, it
merely propagates the use of nuclear power in general. But its numerous specific references to the PNPP-1 "which will be operational
in 1985." and its advantages give credence to the charge that Exhibit "KK" was in reality designed to project PNPP-1 as safe, among
other

When Exhibit "KK" was published, PNPP-1 was the only nuclear plant under construction in the Philippines. It is the Philippine nuclear
plant specifically mentioned therein that was to be operational in 1985. Therefore, when the pamphlet states that nuclear power is
working now in other countries and "it should work for us too" because it is "safe" and economical", it is logical to conclude that the
reference is to no other than the nuclear power to be generated at the PNPP-1
Also worth quoting is the following passage in Exhibit "KK" which sweepingly vouch safes all nuclear power plants, including the PNPP-
1:

No member of the public has ever been injured during the last 25 years that commercial nuclear reactors have been
generating electricity. As is to be expected in any complex system as nuclear power plants, there have been failure of
equipment and human errors. However in every instance, the safety equipment designed into the nuclear reactor self
terminated the accident without injury to the operators or the public. The Three Mile Island Incident, serious as it was,
did not result in the loss of life nor did it result in the exposure of anyone beyond permissible limits.

The designers of nuclear plants assume failure to occur, and provide multiple safeguards protection against every
conceivable malfunction (P. 7, Emphasis supplied.)

The third pamphlet (Exh. "LL") is entitled NUCLEAR POWER PLANT and ENVIRONMENTAL SAFETY. Speaking specifically of the
PNPP-1 it categorically states that the Bataan nuclear plant will not adversely affect the public or the flora or fauna in the area. One of
the stated reasons in support of the conclusion is—

And environmentally, a nuclear power plant emits only insignificant amount of radioactivity to the environment. It does not cause
chemical pollution of air or water, it does not emit sulfur dioxide or nitrogen oxides like plants fired by fossil fuels such as coal and oil,
Besides, even coal fired plants may emits radioactive particles of uranium and thorium because these may be found naturally
associated with coal deposits.

Comparatively therefore, a nucelar power plant is the cleanest and the safest environmently no other technology in modern times has
been developed with so dominant concern for public safety as nuclear power. (p. 8)

Respondent PAEC Commissioners cannot escape responsibility for these official pamphlets. Exhibit "JJ" was published in 1985, when
respondent Commissioners had already been appointed to their present positions. Exhibits "KK" and "LL" were issued earlier, but the
majority of respondent Commissioners even then were already occupying positions of responsibility in the PAEC. Commissioner
Manuel Eugenio was Acting Chief of the PAEC Department on Nuclear Technology and Engineering from June, 1980 to July, 1984;
Commissioner Quirino Navarro was PAEC Chief Science Research Specialist from May, 1980 to September, 1984-, and Commissioner
Alejandro Ver Albano was PAEC Deputy Commissioner from March, 1980 to September, 1984. Additionally, the stubborn fact remains
unrebutted that Exhibits "J.J." "KK" and "LL" continued to be distributed by PAEC as late as March, 1985. In other words their official
distribution continued after the filing of NPC's motion for conversion on June 27, 1984 and even after PAEC had issued its order dated
February 26, 1985 formally admitting the said motion for conversion.

At any rate, even if it be assumed that there are some doubts regarding the conclusion that there has been a prejudgment of the safety
of PNPP-1 the doubts should be resolved in favor of a course of action that will assure an unquestionably objective inquiry, considering
the circumstances thereof and the number of people vitally interested therein.

Having thus prejudged the safety of the PNPP-1 respondent PAEC Commissioners would be acting with grave abuse of discretion
amounting to lack of jurisdiction were they to sit in judgment upon the safety of the plant, absent the requisite objectivity that must
characterize such an important inquiry.

The Court therefore Resolved to RESTRAIN respondent PAEC Commissioners from further acting in PAEC Licensing Proceedings No.
1-77.

II. In G.R. No. 68474, acting on the motion filed therein dated June 8, 1985 to order PAEC to reconsider its orders of May 31 and June
5, 1985, the urgent motion for mandatory injunction and/or restraining order dated August 3, 1985, the second urgent motion for
mandatory injunction dated August 12, 1985, and the various pleadings and other documents submitted by the parties relative thereto,
and considering the paramount need of a reasonable assurance that the operation of PNPP-1 will not pose an undue risk to the health
and safety of the people, which dictates that the conduct of the inquiry into the safety aspects of PNPP-1 be characterized by sufficient
latitude, the better to achieve the end in view, unfettered by technical rules of evidence (Republic Act 5207, section 34), and in keeping
with the requirements of due process in administrative proceedings, the Court Resolved to ORDER respondent PAEC (once
reconstituted) to re-open the hearing on PNPP-1 so as to give petitioners sufficient time to complete their cross-examination of the
expert witnesses on quality assurance, to cross-examine the witnesses that petitioners have failed to cross-examine on and after
August 9, 1985, and to complete the presentation of their evidence, for which purpose, respondent PAEC shall issue the necessary
subpoena and subpoena duces tecum to compel the attendance of relevant witnesses and/or the production of relevant documents.
For the said purposes, the PAEC may prescribe a time schedule which shall reasonably assure the parties sufficient latitude to
adequately present their case consistently with the requirements of dispatch. lt is understood that the PAEC may give NPC the
opportunity to correct or supply deficiencies in this application or evidence in support thereof.

Justices Teehankee, Concepcion Jr., Melencio-Herrera, De la Fuente and Cuevas concur.

Justices Escolin and Alampay took no part.

 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 159190 June 30, 2005

CAYETANO A. TEJANO, JR., petitioner,

vs.
THE HON. OMBUDSMAN and the HON. SANDIGANBAYAN, respondents.

DECISION

CHICO-NAZARIO, J.:

This petition for certiorari under Rule 65 of the Rules of Court, with application for temporary restraining order, seeks to nullify the
Ombudsman’s disapproval of the memorandum1 dated 03 November 1999 of Special Prosecutor Jesus A. Micael of the Office of the
Special Prosecutor recommending the dismissal of Criminal Case No. 21654, as well as the memorandum 2 dated 09 June 2003
denying petitioner’s motion for reconsideration.

The Facts

The instant petition stemmed from the report of Philippine National Bank (PNB) Resident Auditor Alexander A. Tan, dated 15 October
1992, on his investigation regarding an alleged unfunded withdrawal in the amount of P2.2 million by V&G Better Homes Subdivision
(V&G) under Savings Account No. 365-5355-6-4.

The report, as summarized by Special Prosecution Officer III Jesus A. Micael, is as follows:3

. . . [I]n the morning of 17 July 1992, Emilio P. Montesa (Bank Executive Officer of PNB Cebu) handed a note to Jane Rita Jecong
(Cashier) instructing her to include her cash requisition for the day from Central Bank – Cebu, the amount of P2.2 M at P1,000.00
denomination; that on 20 July 1992 at about past 10:00 A.M., Juanito Mata (Cashier III), upon the instruction of Cayetano A. Tejano Jr.
(Vice President and Branch Manager of PNB Cebu), took the P2.2 M from Ms. Jecong and delivered the same to Mr. Tejano; that at
about noontime of same day, Mr. Mara handed to Ms. Jecong a pre-signed withdrawal slip against SA No. 365-535506-4 under the
name of V & G Better Homes for the same amount to replace the cash withdrawn and to serve as cash-on-hand at the end of the day’s
transaction; that the withdrawal slip was approved by Mr. Tejano and was postdated 21 July 1992; that as of 20 July 1992 V & G Better
Homes SA No. 365-535506-4 has only P33,436.78; that in the afternoon of 20 July 1992 the amount of P2,336,563.32 (consisting of
P2,200,000.00 in cash; P100,000.00 in check; and P36,563.22 in withdrawal slip) was received by Teller Mary Ann Aznar as payment
for the loan of V & G Better Homes for which PNB Official Receipt No. 952981E was issued; that the transaction was recognized as an
increase in PNB Cebu Branch’s cash-on-hand and a decrease in the loan account of V & G Better Homes; that the PNB Cebu Credit
Committee approved the loan at the rate of 23% lower than the 26% interest rate on its first renewal and 27% on its second renewal;
that the loan proceeds was credited to the account of V & G Better Homes on 21 July 1992, the same day that the withdrawal slip of
P2.2 M was taken by Mr. Montesa from Ms. Jecong and given to Irene Abellanosa to be taken as her transaction for the day; and that
upon the instruction of Montesa, Savings Account No. 365-535506-4 of V & G Better Homes was debited and the withdrawal slip was
validated by Teller Abellanosa although no actual cash withdrawal was made.

The report of Resident Auditor Alexander A. Tan implicated Vice President Cayetano A. Tejano, Jr., the petitioner herein, Executive
Officer Emilio Montesa, and Supervising Branch Teller Jane Rita Jecong, all of the PNB, Cebu City Branch, including Juana dela Cruz
and Vicente dela Cruz of V&G, as persons involved in the irregular withdrawal of P2.2 million of PNB funds.

In an order dated 22 December 1992, the Office of the Deputy Ombudsman for the Visayas ordered Tejano, Montesa, Jecong, Juana
dela Cruz and Vicente dela Cruz to file their respective counter-affidavits.4

In a resolution dated 29 March 1993, Graft Investigation Officer Edgardo G. Canton recommended the filing of the proper information
for violation of Section 3(e) of Republic Act No. 3019, 5 as amended, against petitioner Cayetano A. Tejano, Jr., Juana dela Cruz and
Vicente dela Cruz of V&G.6 The case against Montesa and Jecong was dismissed for lack of evidence. The resolution was approved by
Deputy Ombudsman for Visayas Arturo C. Mojica and then Ombudsman Conrado M. Vasquez.

The resolution was thereafter referred for review to Special Prosecutor III Orlando I. Ines of the Office of the Special Prosecutor.

In a Memorandum7 dated 25 October 1994, Ines affirmed the resolution of Graft Investigation Officer Edgardo G. Canton.
On 28 October 1994, Deputy Special Prosecutor Jose De G. Ferrer recommended the approval of the memorandum of Special
Prosecution Officer Ines.

On 08 November 1994, Aniano A. Desierto, then the Special Prosecutor, concurred in the approval of Ferrer. 8 Ombudsman Conrado M.
Vasquez concurred thereto on 11 November 1994.

Subsequently, on 24 November 1994, an Information for violation of Section 3(e) of Rep. Act No. 3019, as amended, was filed before
the Sandiganbayan, and docketed as Criminal Case No. 21654.

On 08 December 1994, petitioner filed with the Sandiganbayan an Urgent Motion for a Period of Time to File Motion for Reinvestigation.

In an order dated9 12 December 1994, the Sandiganbayan granted the motion for reinvestigation.

On 22 December 1994, petitioner filed his motion for reinvestigation in the Office of the Special Prosecutor.

On 20 April 1995, the Sandiganbayan ordered the Office of the Special Prosecutor to conduct the reinvestigation.10 The reinvestigation
was assigned to Special Prosecution Officer III Jesus Micael.

Convinced that no probable cause existed to indict petitioner Tejano, and spouses Juana and Vicente dela Cruz, Special Prosecutor
Micael, in a memorandum11 dated 03 November 1999, recommended the dismissal of the case. The recommendation was approved by
Deputy Special Prosecutor Robert E. Kallos and concurred in by Special Prosecutor Leonardo P. Tamayo.

On 10 December 1999, Ombudsman Aniano A. Desierto, who earlier participated in the initial preliminary investigation as Special
Prosecutor, disapproved the recommendation for the dismissal of the case with the marginal note "assign the case to another
prosecutor to prosecute the case aggressively."

On 02 February 2000, Special Prosecutor Micael filed a Manifestation, to which was attached a copy of his memorandum, informing the
Sandiganbayan of the disapproval by Ombudsman Desierto of his recommendation to dismiss the case.

On 10 February 2000, petitioner filed a Motion for Reconsideration of the disapproval by Ombudsman Desierto of the recommendation
of Micael.

Apparently, petitioner’s motion for reconsideration was not resolved on the merits because on 27 June 2000, Special Prosecution
Officer III Joselito R. Ferrer filed a Motion to Set the Case for Arraignment alleging therein that the prosecution did not give due course
to the motion for reconsideration on the ground that it was the second motion which is prohibited under the Ombudsman Act of 1989.
He added that the results of the reinvestigation were already submitted to the respondent court before receiving the motion for
reconsideration.12

Petitioner manifested before the Sandiganbayan the Office of the Special Prosecutor’s failure to resolve his motion for reconsideration.
Thus, in a resolution13 dated 24 March 2003, the respondent court directed the Office of the Ombudsman to resolve the said motion.

In a memorandum14 dated 09 June 2003, Special Prosecutor Joselito R. Ferrer recommended the denial of the motion for
reconsideration filed by petitioner. Deputy Special Prosecutor Robert E. Kallos changed his previous position and recommended that
the memorandum for the dismissal of the motion for reconsideration be approved, with Special Prosecutor Dennis M. Villa-Ignacio
concurring in the denial.

On 14 July 2003, Ombudsman Simeon V. Marcelo, who succeeded Ombudsman Desierto when he retired, approved Joselito Ferrer’s
memorandum recommending the denial of the motion for reconsideration.

Petitioner thus filed the instant petition with prayer for the issuance of a temporary restraining order to enjoin the Sandiganbayan from
taking further action in Criminal Case No. 21654.

On 25 August 2003, the First Division of this Court issued the temporary restraining order prayed for.

On 28 July 2004, the instant petition was transferred to the Second Division of this Court.

Issues

Petitioner raises the following issues:

I
WHETHER OR NOT RESPONDENT OFFICE OF THE OMBUDSMAN COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT
DISAPPROVED THE EARLIER RECOMMENDATION FOR THE DISMISSAL OF THE CASE AGAINST ALL THE ACCUSED
WITHOUT ANY COGENT OR VERIFIABLE REASON AMOUNTING TO LACK OF JURISDICTION WHEN THEY:

1. THE OFFICE OF THE OMBUDSMAN ABUSED ITS DISCRETION IN THE DISAPPROVAL OF THE RESOLUTION DATED
NOVEMBER 3, 1999 – AGAINST ALL ACCUSED FOR LACK OF PROBABLE CAUSE AS MANDATED UNDER SECTION 13 R.A.
6770 IN RELATION TO SECTION 3, RULE 112 OF THE RULES ON CRIMINAL PROCEDURE.

2. THE OFFICE OF SPECIAL PROCECUTOR DID NOT DETERMINE THE EXISTENCE OF PROBABLE CAUSE IN A RESOLUTION
DENYING PETITIONER’S MOTION FOR RECONSIDERATION FOR APPROVAL BY THE NEW OMBUDSMAN.

II

WHETHER OR NOT THE CASE FILED AGAINST THE ACCUSED IS A CLEAR CASE OF PERSECUTION AND NOT
PROSECUTION CONTEMPLATED UNDER R.A. 3019, AS AMENDED, OTHERWISE KNOWN AS THE ANTI-GRAFT AND
CORRUPT PRACTICES ACT, REPUBLIC ACT NO. 1374 AND CHAPTER II, SECTION 2, TITLE VII, BOOK II OF THE REVISED
PENAL CODE.

III

WHETHER OR NOT THE HONORABLE OMBUDSMAN HAS JURISDICTION OVER THE CASE.

Ruling of the Court

Quite apart from the above, we find a focal issue apparently glossed over by the parties - whether or not Ombudsman Desierto
committed grave abuse of discretion in disapproving the 03 November 1999 memorandum of Special Prosecutor Jesus Micael
recommending the dismissal of Criminal Case No. 21654 against petitioner Tejano, and spouses Juana and Vicente dela Cruz of V&G
for violation of Section 3(e) of Rep. Act No. 3019, where he had earlier participated in the preliminary investigation of the said criminal
case recommending the filing of the information.

This Court has been consistent in holding that it will not interfere with the Ombudsman’s exercise of his constitutionally mandated
investigatory and prosecutory powers, and respect the initiative and independence inherent in the Ombudsman who "beholden to no
one, acts as the champion of the people and the preserver of the integrity of public service."15 Such discretionary power of the
Ombudsman is beyond the domain of this Court to review, save in cases where there is clear showing of grave abuse of discretion
amounting to lack or excess of jurisdiction of the latter.

Grave abuse of discretion is such capricious and whimsical exercise of judgment on the part of the public officer concerned which is
equivalent to an excess or lack of jurisdiction. The abuse of discretion must be so patent and gross as to amount to an evasion of
positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law as where the power is
exercised in an arbitrary and despotic manner by reason of passion or hostility.16

Ombudsman Desierto, in this case, committed grave abuse of discretion. Petitioner attributes partiality on the part of Ombudsman
Desierto for having participated in the reinvestigation of the instant case despite the fact that he earlier participated in the initial
preliminary investigation of the same when he was a Special Prosecutor by concurring in the recommendation for the filing of the
information before the Sandiganbayan.

We agree with the petitioner. Steadfastly, we have ruled that the officer who reviews a case on appeal should not be the same person
whose decision is under review. 17 In Zambales Chromite Mining Company v. Court of Appeals,18 the decision of the Secretary of
Agriculture and Natural Resources was set aside by this Court after it had been established that the case concerned an appeal of the
Secretary’s own previous decision, which he handed down while he was yet the incumbent Director of Mines. We have equally declared
void a decision rendered by the Second Division of the National Labor Relations Commission, because one of its members,
Commissioner Raul Aquino, participated in the review of the case which he had earlier decided on as a former labor arbiter. 19 Likewise,
this Court struck down a decision of Presidential Executive Assistance Jacobo Clave over a resolution of the Civil Service Commission,
in which he, then concurrently its Chairman, had earlier concurred.20

Having participated in the initial preliminary investigation of the instant case and having recommended the filing of an appropriate
information, it behooved Ombudsman Desierto to recuse himself from participating in the review of the same during the reinvestigation.
He should have delegated the review to his Deputies pursuant to Section 15 of Rep. Act No. 6770, which provides:

Sec. 15. Powers, Functions and Duties. – The Office of the Ombudsman shall have the following powers, functions and duties:

...
(10) Delegate to the Deputies, or its investigators or representatives such authority or duty as shall ensure the effective exercise or
performance of the powers, functions and duties herein or hereinafter provided; . . .

In earlier recommending the filing of information, then Special Prosecutor Desierto was already convinced, from that moment, that
probable cause exists to indict the accused. It becomes a farfetched possibility that in a subsequent review of the same, Ombudsman
Desierto would make a turnabout and take a position contradictory to his earlier finding.

Due process dictates that one called upon to resolve a dispute may not review his decision on appeal.21 We take our bearings from
Zambales Chromite Mining Co. v. Court of Appeals22 which succinctly explained that:

In order that the review of the decision of a subordinate officer might not turn out to be farce, the reviewing officer must perforce be
other than the officer whose decision is under review; otherwise, there could be no different view or there would be no real review of the
case. The decision of the reviewing officer would be a biased view; inevitably, it would be the same view since being human, he would
not admit that he was mistaken in his first view of the case.

Cojuangco, Jr. v. Presidential Commission on Good Government23 concedes the applicability of the prohibition on the reviewing officer
to handle a case he earlier decided, thus:

Where the circumstances do not inspire confidence in the objectivity and impartiality of the judge, such judge should inhibit voluntarily
or if he refuses, he should be prohibited from handling the case. A judge must not only be impartial but must also appear impartial as
an assurance to the parties that his decision will be just. His actuation must inspire that belief. This is an instance when appearance is
as important as reality.

The same rule of thumb should apply to an investigating officer conducting a preliminary investigation. This is the reason why under
Section 1679 of the former Revised Administrative Code, the Secretary of Justice, who has supervision over the prosecution arm of the
government, is given ample power to designate another prosecutor to handle the investigation and prosecution of a case when the
prosecutor handling the same is otherwise disqualified by personal interest, or is unable or fails to perform his duty. (Underlining
supplied)

The fact that the motion for reconsideration of Ombudsman Desierto’s disapproval of the 03 November 1999 memorandum of Special
Prosecutor Jesus Micael recommending the dismissal of Criminal Case No. 21654 was denied by another reviewing officer,
Ombudsman Marcelo, does not cure the infirmity of Ombudsman Desierto’s actuation. As stressed in Singson v. NLRC:24

. . . The infirmity of the resolution was not cured by the fact that the motion for reconsideration of the petitioner was denied by two
commissioners and without the participation of Commissioner Aquino. The right of petitioner to an impartial review of his appeal starts
from the time he filed his appeal. He is not only entitled to an impartial tribunal in the resolution of his motion for reconsideration.
Moreover, his right is to an impartial review of three commissioners. The denial of petitioner’s right to an impartial review of his appeal is
not an innocuous error. It negated his right to due process. (Underlining supplied)

With the foregoing conclusion, we deem it unnecessary to discuss the other issues raised by petitioner.

WHEREFORE, the Ombudsman’s disapproval of the memorandum dated 03 November 1999, where Prosecutor Jesus A. Micael of the
Office of the Special Prosecutor recommended the dismissal of Criminal Case No. 21654, as well as the memorandum dated 09 June
2003, which denied petitioner’s motion for reconsideration, are SET ASIDE. The case is remanded to the Office of the Ombudsman for
further proceedings. No costs.

SO ORDERED.

Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 148560 November 19, 2001

JOSEPH EJERCITO ESTRADA, Petitioner,

vs.
SANDIGANBAYAN (Third Division) and PEOPLE OF THE PHILIPPINES, Respondents.

BELLOSILLO, J.:

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

The sole end for which tnankind is warranted, individually or collectitlely, in interfering with the liberty of action of any of their
number, is self-protection. The only purpose for which power can be rightfully exercised over any mcl11ber of a civilized
cotnmunity, against his will, is to prevent harnl to others.

Parallel to individual liberty is the natural and illimitable right of the State to self-pteservation. With the end of maintaining the integrity
and cohesiveness of the body politic, it behooves the State to formulate a system of laws that would compel obeisance to its collecti"e
wisdom and inflict punishment for non-observance.

The movement from Mill's individual liberalism to unsystematic collectivism wrought changes in the social order, carrying with it a new
formulation of fundamental rights and duties more attuned to the imperatives of contemporary socio-political ideologies. In the process,
the web of rights and State impositions : became tangled and obscured, enmeshed in threads of multiple shades and colors, the skein
irregular and broken. Antagonism often outright collision, between the law as the expression of the will of the State, and the zealous
attempts by its members to preserve of their individuality and dignity, irievitably followed. It is when individual rights are pitted against
State authority that judicial conscience is put to its severest test.

Petitioner Joseph Ejercito Estrada, the highest-ranking official to be prosecuted under RA 7080 (An Act Defining and Penalizing the
Crime of Plunder),1 as amended by RA 7659,2 wishes to impress upon us that the, assailed law is so defectively fashioned that it
crosses that thin but distinct line which divides the valid from the constitutionally infirm. He therefore makes a stringent call for this Court
to subject the Plunder Law to the crucible of constitutionality-mainly because, according to him, (a) it suffers from the vice of
vagueness; (b) it dispenses with the "reasonable doubt" standard in criminal prosecutions; and, (c) it abolishes the element of mens rea
in crimes already punishable under The Revised Penal Code, all of which are purportedly clear violations of the fundamental rights of
the accused to due process and to be informed of the nature and cause of the accusation against him.

Specifically, the provisions of the Plunder Law claimed by petitioner to have transgressed constitutional boundaries are Secs. 1, par.
(d), 2 Clnd 4 which are reproduced hereunder:

Section 1. x x x x (d) "Ill-gotten wealth" means any asset, property, business, enterprise or material possession of any person
within the purview of Section Two (2) hereof, acquired by him directly or indirectly through dummies, nominees, agents,
subordinates and/or business associates by any combination or series of the following means or similar Schemes:

(1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury;

(2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks Or any other form of
pecuniary" benefit from any person and/or entity in connection with any government contract or project or by reason
of the office or position of the public office concerned;

(3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its
subdivisions, agencies or instrumentalities, or government "owned or controlled corporations and their subsidiaries;

(4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest
or participation including the promise of future employment in any business enterprise or undertaking;
 (5) By establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of
decrees and orders intended to benefit particular persons or special interests; or

(6) By taking advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or
themselves at the expense and to the damage and prejudice of the Filipino people anti the Republic of the
Philippines.

Section 2. Definition of the Crime of Plunder, Penalties. - Any public officer who, by himself or in connivance with members of
his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or
acquires ill-gotten wealth through a combination or series of overt or criminal acts as described in Section 1 (d) hereof, in
the aggregate amount or total value of at least fifty million pesos (P50,000,000.00) shall be guilty of the crime of plunder and
shall be punished by reclusion perpetua to death. Any person who participated with the said public officer in the commission of
an offense contributing to the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the
degree of participation and the attendance of mitigating and extenuating circumstances as provided by the Revised Penal
Code shall be considered by the court. The court shall declare any and all ill-gotten wealth and their interests and other
incomes and assets including the properties and shares of stocks derived from the deposit or investment thereof forfeited in
favor of the State (underscoring supplied).

Section 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall not be necessary to prove each and
every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or acquire
ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative
of the overall unlawful scheme or conspiracy (underscoring supplied).

On 4 Apri12001 the Office of the Ombudsman filed before the Sandiganbayan eight (8) separate Informations, docketed as: (a) Crim.
Case No.26558, for violation of RA 7080, as amended by RA 7659; (b) Crim. Cases Nos. 26559 to 26562, inclusive, for violation of
Secs. 3, par. (a), 3, par. (a), 3, par. (e) and 3, par. (e), of RA 3019 (Anti-Graft and Corrupt Practices Act), respectively; (c) Crim. Case
No. 26563, for violation of Sec. 7, par. (d), of RA 6713 (The Code of Conduct and Ethical Standards for Public Officials and
Employees); (d) Crim. Case No.26564, for Perjury (Art. 183 of The Revised Penal Code); and, (e) Crim. Case No.26565, for illegal Use
Of An Alias (CA No.142, as amended by RA 6085).1âwphi1.nêt

On 11 April 2001 petitioner filed an Omnibus Motion for the remand of the case to the Ombudsman for preliminary investigation with
respect to specification "d" of the charges in the Information in Crim. Case No.26558; and, for reconsideration/reinvestigation of the
offenses under specifications "a," "b," and "c" to give the accused an opportunity to file counter-affidavits and other documents
necessary to prove lack of probable cause. Noticeably, the grounds raised were only lack of preliminary investigation, reconsideration/
reinvestigation of offenses, and opportunity to prove lack of probable cause. The purported ambiguity of the charges and the
vagueness of the law under which they are charged were never raised in that Omnibus Motion thus indicating the explicitness and
comprehensibility of the Plunder Law.

On 25 April 2001 the Sandiganbayan, Third Division, issued a Resolution in Crim. Case No.26558 finding that "a probable cause for the
offense of PLUNDER exists to justify the issuance of warrants for the arrest of the accused." On 25 June 2001 petitioner's motion for
reconsideration was denied by that Sandiganbayan.

On 14 June 2001 petitioner moved to quash the Information Crim. Case No.26558 on the ground that the facts alleged therein, offense
since the law on which it was based was unconstitutional for vagueness, and that the Amended Information for Plunder charged more
than one (1) offense. On 21 June 2001 the Government filed its Opposition to the Motion to Quash, and five (5) days later or on 26
June 2001 petitioner submitted his Reply to the Opposition. On 9 July 2001 the Sandiganhayan denied petitioner's Motion to Quash.

As concisely delineated by this Court during the oral arguments on 18 September 2001, the issues for resolution in the instant petition
for certiorari are: (a) The Plunder Law is unconstitutional for being vague; (b) The Plunder Law requires less evidence for proving the
predicate crimes of plunder and therefore violates the rights of the accused to due process; and, (c) Whether Plunder as defined in RA
7080 is a malum prohibitum, and if so, whether it is within the power of Congress to so classify it.

Preliminarily, the whole gamut of legal concepts pertaining to the validity of legislation is predicated on the basic principle that a
legislative measure is presumed" to be in harmony with the Constitution.3 Courts invariably train their sights on this fundamental rule
whenever a legislative act is under a constitutional attack, for it is the postulate of constitutional adjudication. This strong predilection for
constitutionality takes its bearings on the idea that it is forbidden for one branch of the government. It to encroach upon the duties and
powers of another. Thus it has been said that the presumption is based on the deference the judicial branch accords to its coordinate
branch the legislature.

If there is any reasonable basis upon which the legislation may firmly rest, the courts must assume that the legislature is ever conscious
of the borders and edges of its plenary powers, and has passed the law with full knowledge of the facts and for the purpose of
promoting what is right and advancing the welfare of the majority. Hence in, determining whether the acts of the legislature are in tune
with the fundamental law, courts should proceed with judicial restraint and act with Qution and forbearance. Every intendment of the law
must be adjudged by the courts in favor of its constitutionality, invalidity being a measure of last resort. In construing therefore the
provisions of a statute, courts must first ascertain Whether an interpretation is fairly possible to sidestep the question of
constitutionality.
In La Union Credit Cooperative, Inc. v. Yaranon4 We held that as long as there is some basis for the decision of the court, the
constitutionality of the challenged law will not be touched and the case will be decided on other available grounds. Yet the force of the
presumption is not sufficient to catapult a fundamentally deficient or law into the safe environs of constitutionality. Of course, where the,
law clearly and palpably transgresses the hallowed domain of the organic law; it must be struck down on sight lest the positive
commands of the fundamental law be unduly eroded.

Verily, the onerous task of rebutting the presumption weighs heavily on the party challenging the validity of the.statute. He must
demonstrate beyond any tinge of doubt that there is indeed an infringement of the constitution, for absent such a showing, there can be
no finding of unconstitutionality. A doubt, even if well-founded, will hardly suffice. As tersely put by Justice Malcolm, "To doubt is to
sustain."5 And petitioner has miserably failed in the instant case to discharge his burden and overcome the presumption of
constitutionality of the Plunder Law.

As it is written, the Plunder Law contains ascertainable standards and well-defined parameters which would enable the accused to
determine the nature of his violation. Section 2 is sufficiently explicit in its description of the acts, conduct and conditions required or
forbidden, and prescribes the elements of the crime with reasonable certainty and particularity. Thus -

1, That the offender is a public officer who acts by himself or in Connivance with members of his family, relatives by affinity or i
coll.C;llllguinity, business associates, subordinates or other persons;

2, That he amassed, accumulated or acquired ill-gotten wealth through a combination or series of the following overt or
criminal acts: (a) through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury;
(b) by receiving, directly or indirectly, any commission, gift, share, percentage, kickback or any other form of pecuniary
benefits from any person and/or entity in connection with any government contract or project or by reason of the office or
position of the public officer; (c) by the illegal or fraudulent conveyance or disposition of assets belonging to the National
Government or any of its subdivisions, agencies or instrumentalities of Government owned or controlled corporations or their
subsidiaries; (d) by obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of
interest or participation including the promise of future employnlent in any business enterprise or undertaking; (e) by
establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and
orders intended to benefit particular persons or special interests; or (j) by' taking advantage of official position, authority,
relationship, connection or influence to unjustly enrich himself or themselves at the expense and to file damage and prejudice
of the Filipino people and the Republic of the Philippines; and,

3, That the aggregate anlount or total value of the ill-gotten wealth, amassed, accumulated or acquired is at least
P50,000,000.00.

As long as the law affords some comprehensible guide or rule that would inform those who are subject to it what conduct would render
thcm liable to its penalties, its validity will be sustained. It must sufficiently guide the judge in its application; the counsel, in defending
one charged with its violation; and more importantly, the accused, in identifying the realm of the proscribed conduct. Indeed, it can be
understood with little difficulty that what the assailed statute punishes is the act of a public officer in amassing or accumulating ill-gotten
wealth of at least P50,000,000.00 through a series or combination of acts enumerated in Sec. 1, par. (d), of the Plunder Law.

In fact, the amended Information itself closely tracks the language of the law, indicating with reasonable certainty the various elements
of the offense which petitioner is alleged to have committed:

"The undersigned Ombudsman, Prosecutor and OIC- Director, EPIB, Office of the Ombudsman, hereby accUses former
PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, Joseph Ejercito Estrada, a.k.a. 'ASIONG SALONGA' and a.k.a.
'JOSE VELARDIE,' together with Jose 'Jinggoy' Estrada, Charlie 'Atong' Ang, Edward Serapio, Yolanda T. Ricaforte, Alma
Alfaro, John DOES a.k.a. Eleuterio Tan QR Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and John & Jane
Does, of the crime of Plunder, defined and penalized under R.A. No.7080, as amended by Sec. 12 of R.A. No.7659,
committed as follows:

That during the period from June, 1998 to January 2001, in the Philippines, and within the jurisdiction of this Honorable Court,
accused Joseph Ejercito Estrada, THEN A PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES by himself AND/OR in
CONNIVANCE/ CONSPIRACY WITH HIS CO-AACUSED, WHO ARE MEMBERS OF HIS FAMILY RELATIVES By AFFINITY
OR CONSANGUINITY BUSINESS ASSOCIATES WlLORDINA TES AND/ R OTHER PERSONS BY TAKING UNDUE
ADVANTAGE OF HIS OFFICIAL POSITION AUTHORITY RELA TIONSHIP CONNECTION OR, OR INFLUENCE, did then
and there willfully, unlawfully and criminally amass, accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY ill-
gotten wealth in the aggregate amount or TOTAL VALUE of FOUR BILLION NINETY SEVEN MILLION EIGHT HUNDRED
FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS (P4,097,804,173.17), more
or less, THEREBY UNJUSTL Y ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE DAMAGE OF
THE FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES. through ANY OR A combination OR A series of overt
QR criminal acts, OR SIMILAR SCHEMES OR MEANS. described as follows:

(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES. MONEY IN THE AGGREGATE
AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545.000.000.00). MORE OR LESS. FROM
ILLEGAL GAMBLING IN THE FORM OF .c!IFT. SHARE. PERCENTAGE. KICKBACK OR ANY FORM OF
 PECUNIARY BENEFIT. BY HIMSELF AND/OR in connection with co-accused CHARLIE 'ATONG' ANG, Jose
'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND LANE DOES. in consideration OF
TOLERA TION OR PROTECTION OF ILLEGAL GAMBLING;

(b) by DIVERTING RECEIVING , misappropriating, converting OR misusing DIRECTLY OR INDIRECTLY. for HIS
OR THEIR PERSONAL gain and benefit, public funds in the amount of ONE HUNDRED THIRTY MILLION PESOS
(P130,000,000.00), more or ll'ss, representing a portion of the TWO HUNDRED MILLION PESOS (P200.000.000.00)
tobacco excise tax share allocated for the province of Ilocos Sur under R.A. No. 7171, by himself and/or in
connivance with co-accused Charlie 'Atong' Ang, Alma Alfaro, JOHN DOE a.k.a Eleuterio Ramos Tan or Mr. Uy, Jane
Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES & JANE DOES; (italic supplied).

(c) by directing, ordering and compelling, EQR HIS PERSONAL GAIN AND BENEFIT the Government Service
Insurance System (GSIS) TO PURCHASE 351.878.000 SHARES OF STOCKS. MORE OR LESS. and the Social
Security System (555), 329,855,000 SHARES OF STOCK. MORE OR LESS. OF THE BELLE CORPORA TION IN
THE AMOUNT OF MORE OR LESS ONE BILLION ONE HUNDRED TWO MILLION NINE HUNDRED SIXTY FIVE
THOUSAND SIX HUNDRED SEVEN PESOS AND FIFTY CENTAVOS (Pl.102.965.607.50) AND MORE OR LESS
SEVEN HUNDRED FORTY FOUR MILLION SIX HUNDRED TWELVE THOUSAND AND FOUR HUNDRED FIFTY
pesos (P744.612.450.00). RESPECTIVELY OR A TOTAL OF MORE OR LESS ONE BILLION EIGHT HUNDRED
FORTY SEVEN MILLION FIVE HUNDRED SEVENTY EIGHT THOUSAND FIFTY SEVEN PESOS AND FIFTY
CENTAVOS (Pl,847,578,057.50); AND BY COLLECTING OR RECEIVING, DIRECTLY OR INDIRECTLY, BY
HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES AND ,ANE DOES COMMISSIONS OR PERCENTAGES
BY REASON OF SAID PURCHASES OF SHARES OF STOCK IN THE AMOUNT OF ONE HUNDRED EIGHTY
NINE MILLION SEVEN HUNDRED THOUSAND PESOS {P189,700,000.00) MORE OR LESS FROM THE BELLE
CORPORATION WHICH BECAME PART OF THE DEPOSIT IN THE EOUIT ABLE-PCI BANK UNDER THE
ACCOUNT NAME 'JOSE VELARDE:'

(d) by unjustly enriching himself FROM COMMISSIONS GIFTS SHARES. PERCENTAGES. KICKBACKS OR ANY
FORM OF PECUNIARY BENEFITS IN CONNIVANCE WITH JOHN DOES AND JANE DOES. in the amount of
MORE OR LESS THREE BILLION TWO HUNDRED THIRTY THREE MILLION ONE HUNDRED FOUR THOUSAND
ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS (P3,233,104,173.17) AND
DEPOSITING THE SAME UNDER HIS ACCOUNT NAME 'JOSE VELARDE' AT THE EQUITABLE-PCI BANK."

We discern nothing in the foregoing that is vague or ambiguous as there is obviously none that will confuse petitioner in his defense.
Although subject to proof, these factual assertions clearly show that the elements of the crime are easily understood and provide
adequate contrast between the innocent and the prohibited acts. Upon such unequivocal assertions, petitioner is complete informed of
the accusations against him as to enable him to prepare for an intelligent defense.

Petitioner, however, bewails the failure of the law to provide for the statutory definition of the terms ,rcombination" and "series" in the
key phrase ,a combination or series of overt or criminal acts" found in Sec. 1, par. (d), and Sec. 2, and the word ,rpattem" in Sec. 4.
These omissions, according to petitioner, render the Plunder Law unconstitutional for being impermissibly vague and overbroad to be
informed of the nature and cause of the accusation against him, hence, violative of his fundamental right due process.

The rat ionalization seems to us to be pure sophistry. A statute is not rendered uncertain and void merely because general terms are
used therein, or beeause of the employment of terms without defining them; 6 much less do we have to define every word we use.
Besides, there is no positive constitutional or statutory command requiring the legislature to define each and every word in an
enactment. Congress is not restricted in the form of expression of its will, and its inability to so define the words employed in a statute
will not necessarily result in the vagueness or ambiguity of the law so long as the legislative will is clear, or at least, can be gathered
from the whole act, which is distinctly expressed in the Plunder Law."

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

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

Series -a number of things or events of the same class coming one after another in spatial and temporal succession.

That Cong'ress intended the words "combination" and "series" to be understood in their popular meanings is pristinely evident from the
legislative--deliberations on the bill which eventually became RA 7080 or the Plunder Law:
 DELIBERATIONS OF THE BICAMERAL COMMI1TEE ON JUSTICE, 7 May 1991

REP. ISIDRO: I am just intrigued again by our definition of plunder. We say THROUGH A COMBINATION OR
SERIES OF OVERT OR CRIMINAL ACTS AS MENTIONED IN SECTION ONE,HEREOF. Now when we say
combination, we actually mean to say, if there are hvo or more means, we mean to say that number one and two or
number one and something else are included, how about a series of the same act? For example, through
misappropriation, conversion, misuse, will these be included also?

REP.,GARCIA: Yeah, because we say a series.

REP. ISIDRO: Series.
REP, GARCIA: Yeah, we include series.
REP. ISIDRO: But we say we begin with a combination.
REP. GARCIA: Yes.
REP. ISIDRO: When we say combination, it seems that -
REP. GARCIA: Two.
REP. ISIDRO: Not only two but we seem to mean that two of the enumerated means not twice of one enumeration.
REP. GARCIA: No, no, not twice.
REP. ISIDRO: Not twice? .
REP. GARCIA: Yes. Combination is not twice -but combination, two acts.
REP. ISIDRO: So in other words, that's it. When we say combination, we mean, two different acts. It cannot be a
repetition of the same act.
REP. GARCIA: That be referred to seies, yeah.
REP. ISIDRO: No, no. Supposing one act is repeated, so there are two.
REP. GARCIA: A series
REP. ISIDRO: That's not series. Its a combination. Because when we say combination or series, we seem to say that
two or more, di ba?
REP. GARCIA: Yes, this distinguishes it really from ordinary crimes. That is why, I said, that is a very good
suggestion because if it is only one act, it may fall under ordinary crime but we have here a combination or series of
overt or criminal acts. So x x x x
REP. GARCIA: Series. One after the other eh di….
SEN. TANADA: So that wouldfall under the term "series?"
REP. GARCIA: Series, oo.
REP. ISIDRO: Now, if it is a combination, ano, two missappropriations….
REP. GARCIA: Its not... Two misappropriations will not be combination. Series.
REP. ISIDRO: So, it is not a combination?
REP. GARCIA: Yes.
REP. ISIDRO: When you say combination, two different?
REP. GARCIA: Yes.
SEN. TANADA: Two different.
REP. ISIDRO: Two different acts.
REP. GARCIA: For example, ha...
REP. ISIDRO: Now a series, meaning, repetition...

DELIBERATIONS ON SENATE BILL NO. 733, 6 June 1989

SENATOR MACEDA: In line with our interpellations that sometimes "one"l or maybe even "two" acts may already
result in such a big amount, on line 25, would the Sponsor consider deleting the words "a series of overt or," to read,
therefore: "or conspiracy COMMITTED by criminal acts such as." Remove the idea of necessitating "a series."
Anyway, the criminal acts are in the plural.

SENATOR TANADA: That would mean a combination of two or more of the acts mentioned in this.
THE PRESIDENT: Probably two or more would be….
SENATOR MACEDA: Yes, because "a series" implies several or many; two or more.
SENATOR TANADA: Accepted, Mr, President x x x x
THE PRESIDENT: If there is only one, then he has to be prosecuted under the particular crime. But when we say
"acts of plunder" there should be, at least, two or more.
SENATOR ROMULO: In other words, that is already covered by existing laws, Mr. President

Thus when the Plunder Law speaks of "combination," it is referring to at least two (2) acts falling under different categories of
enumerauon provided in Sec. 1, par. (d), e.g., raids on the public treasury in Sec. 1, par. (d), subpar. (1), and fraudulent conveyance of
assets belonging to the National Government under Sec. 1, par. (d), subpar. (3).

On the other hand, to constitute a "series" there must be two (2) or more overt or criminal acts falling under the same category of
enumeration found in Sec. 1, par. (d), say, misappropriation, malversation and raids on the public treasury, all of which fall under Sec,
1, par. (d), subpar. (1). Verily, had the legislature intended a technical or distinctive meaning for "combination" and "series," it would
have taken greater pains in specifically providing for it in the law.
As for "pattern," we agree with the observations of the Sandigabayan9 that this term is sufficiently defined in Sec. 4, in relation to Sec. 1,
par. (d), and Sec. 2 -

x x x x under Sec. 1 (d) of the law, a 'pattern' consists of at least a combination or series of overt or criminal acts
enumerated in subsections (1) to (6) of Sec. 1 (d). Secondly, pursuant to Sec. 2 of the law, the pattern of overt or criminal
acts is directed towards a common purpose or goal which is to enable the public officer to amass, accumulate or
acquire ill-gotten wealth. And thirdly, there must either be an 'overall unlawful scheme' or 'conspiracy' to achieve said
common goal. As commonly understood, the term 'overall unlawful schenle' indicates a 'general plan of action or method'
which the principal accused and public officer and others conniving with him follow to achieve the aforesaid common goal. In
the alternative, if there is no such overall scheme or where the schemes or methods used by multiple accused,vary, the overt
or criminal acts nlust form part of a conspiracy to attain a common goal.

Hence, it cannot plausibly be contended that the law does not give a fair warning and sufficient notice of what it seeks to penalize.
Under the circumstances, petitioner's reliance on the "void-for-vagueness" doctrine is manifestly misplaced. The doctrine has been
formulated in various ways, but is most commonly stated to the effect that a statute establishing a criminal offense must define the
offense with sufficient definiteness that persons of ordinary intelligence can understand what conduct is prohibited by the statute. It can
only be invoked against that specie of legislation that is utterly vague on its face, i.e., that which cannot be clarified either by a saving
clause or by construction.

A statute or act may be said to be vague when it lacks comprehensible standards that men of common intelligence must necessarily
guess at its meaning and differ in its application. In such instance, the statute is repugnant to the Constitution in two (2) respects - it
violates due process for failure to accord persons, especially the parties targeted by it, fair notice of what conduct to avoid; and, it
leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle. 10
But the doctrine does not apply as against legislations that are merely couched in imprecise language but which nonetheless specify a
standard though defectively phrased; or to those that are apparently ambiguous yet fairly applicable to certain types of activities. The
first may be "saved" by proper construction, while no challenge may be mounted as against the second whenever directed against such
activities.11 With more reason, the doctrine cannot be invoked where the assailed statute is clear and free from ambiguity, as in this
case.

The test in determining whether a criminal statute is void for uncertainty is whether the language conveys a sufficiently definite warning
as to the proscribed conduct when measured by common understanding and practice. 12 It must be stressed, however, that the
"vagueness" doctrine merely requires a reasonable degree of certainty for the statute to be upheld - not absolute precision or
mathematical exactitude, as petitioner seems to suggest. Flexibility, rather than meticulous specificity, is permissible as long as the
metes and bounds of the statute are clearly delineated. An act will not be held invalid merely because it might have been more explicit
in its wordings or detailed in its provisions, especially where, because of the nature of the act, it would be impossible to provide all the
details in advance as in all other statutes.

Moreover, we agree with, hence we adopt, the observations of Mr. Justice Vicente V. Mendoza during the deliberations of the Court
that the allegations that the Plunder Law is vague and overbroad do not justify a facial review of its validity -

The void-for-vagueness doctrine states that "a statute which either forbids or requires the doing of an act in terms so vague
that men of common intelligence must necessarily guess at its nleaning and differ as to its application, violates the first
essental of due process of law."13 The overbreadth doctrine, on the other hand decrees that "a governmental purpose may not
be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms."14

A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible "chilling effect"
upon protected speech. The theory is that "[w]hen statutes regulate or proscribe speech and no readily apparent construction
suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society of
constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the
person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow
specificity."15 The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the
possibility that the protected speech of others may be deferred and perceived grievances left to fester because of possible
inhibitory effects of overly broad statutes.

This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from their very
existence, and, if facial challerge is allowed for this reason alone, the State may well be prevented from enacting laws against
socially harmful conduct. In the area of criminal law, the law cannot take chances as in the area of free speech.

The overbreadth and vagueness doctrines then have special application only to free speech cases. They are inapt for testing
the validity of penal statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice Rehnquist, "we have not
recognized an 'overbreadth' doctrine outside the limited context of the First Amendment."16 In Broadrick v. Oklahoma,17 the
Court ruled that "claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to
regulate only spoken words" and, again, that "overbreadth claims, if entertained at all, have been curtailed when invoked
against ordinary criminal laws that are sought to be applied to protected conduct." For this reason, it has been held that "a
facial challenge to a legislative act is the most difficult challerge to mount successfully, since the challenger must establish that
no set of circumstances exists under which the Act would be valid."18 As for the vagueness doctrines it is said that a litigant
 may challenge a statute on its face only if it is vague in all its possible applications. "A plaintiff who engages in some conduct
that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others."19

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing "on their faces"
statutes in free speech cases or, as they are called in American law, First Amendment cases. They cannot be made to do
service when what is involved is a criminal statute. With respect to such statute, theestablished rule is that "one to whom
application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken
as applying to other persons or other situations in which its application might be unconstitutional." 20 As has been pointed out,
"vagueness challenges in the First Amendment context, like overbreadth challenges typically produce facial invalidation, while
statutes found vague as a matter of due process typically are invalidated [only] 'as applied' to a particular defendant."21
Consequently, there is no basis for petitioner's claim that this Court review the Anti-Plunder Law on its face and in its entirety.

Indeed, "on its face" invalidation of statutes results in striking them down entirely on the ground that they might be applied to
parties not before the Court whose activities are constitutionally protected.22 It constitutes a departure from the case and
controversy requirement of the Constitution and permits decisions to be made without concrete factual settings and in sterile
abstract contexts.23 But, as the U.S. Supreme Court pointed out in Younger v. Harris24

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies
before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the
relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the
speculative and amorphous nature of the required line-by-line analysis of detailed statutes, . . .ordinarily results in a
kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided.

For these reasons, "on its face" invalidation of statutes has been described as "manifestly strong medicine," to be employed
"sparingly and only as a last resort,"25 and is generally disfavored.26 In determining the constitutionality of a statute, therefore,
its provisions which are alleged to have been violated in a case must be examined in the light of the conduct with which the
defendant is charged.27

In light of the foregoing disquisition, it is evident that the purported ambiguity of the Plunder Law, so tenaciously claimed and argued at
length by petitioner, is more imagined than real. Ambiguity, where none exists, cannot be created by dissecting parts and words in the
statute to furnish support to critics who cavil at the want of scientific precision in the law. Every provision of the law should be construed
in relation and with reference to every other part. To be sure, it will take more than nitpicking to overturn the well-entrenched
presumption of constitutionality and validity of the Plunder Law. A fortiori, petitioner cannot feign ignorance of what the Plunder Law is
all about. Being one of the Senators who voted for its passage, petitioner must be aware that the law was extensively deliberated upon
by the Senate and its appropriate committees by reason of which he even registered his affirmative vote with full knowledge of its legal
implications and sound constitutional anchorage.

The parallel case of Gallego v. Sandiganbayan28 must be to illustrate and emphasize the point that courts are loathed to declare a
statute void for uncertainty unless the law itself is so imperfect and deficient in its details, and is susceptible of no reasonC1ble
construction that will support and give it effect. In that case, petitioners Gallego and Agoncillo challenged the constitutionality of Sec. 3,
par.(e), of The Anti-Graft and Corrupt Practices Act for being vague. Petitioners posited, among others, that the term "unwarranted" is
highly imprecise and elastic with no common law meaning or settled definition by prior judicial or administrative precedents; that, for its
vagueness, Sec. 3, par. (e), violates due process in that it does not give fair warning or sufficient notice of what it seeks to penalize.
Petitioners further argued that the Information charged them with three (3) distinct offenses to wit: (a) giving of "unwarranted" benefits
through manifest partiality; (b) giving of "unwarranted" benefits through evident bad faith; and, (c) giving of "unwarranted" benefits
through gross inexcusable negligence while in the discharge of their official function and that their right to be informed of the nature and
cause of the accusation against them was violated because they were left to guess which of the three (3) offenses, if not all, they were
being charged and prosecuted.

In dismissing the petition, this Court held that Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act does not suffer from the
constitutional defect of vagueness. The phrases "manifest partiality," "evident bad faith," and "gross and inexcusable negligence"
merely describe the different modes by which the offense penalized in Sec. 3, par. (e), of the statute may be committed, and the use of
all these in the same Information does not mean that the indictment charges three (3) distinct offenses.

The word 'unwarranted' is not uncertain. It seems lacking adeqllate or official support; unjustified; unauthorized (Webster,
Third International Dictionary, p. 2514); or without justification or adequate reason (Philadelphia Newspapers, Inc. v. US Dept.
of Justice, C.D. Pa., 405 F. Supp. 8, 12, cited in Words and Phrases, Permanent Edition, Vol. 43-A 1978, Cumulative AlVlual
Pocket Part, p. 19).

The assailed provisions of the Anti-Graft and Corrupt Practices Act consider a corrupt practice and make unlawful the act of
the public officer in:

x x x or giving any private party any unwarranted, benefits, advantage or preference in the discharge of his official,
administrative or judicial functions "1 through manifest partiality, evident bad faith or gross inexcusable negligence, x
x x (Section 3 [el, Rep. Act 3019, as amended).
 It is not at all difficult to comprehend that what the aforequoted penal provisions penalize is the act of a public officer, in the
discharge of his official, administrative or judicial functions, in giving any private party benefits, advantage or preference which
is unjustified, unauthorized or without justification or adequate reason, through manifest partiality, evident bad faith or gross
inexcusable negligence.

In other words, this Court found that there was nothing vague or ambiguous in the use of the term "unwarranted" in Sec. 3, par. (e), of
The Anti-Graft and Corrupt Practices Act, which was understood in its primary and general acceptation. Consequently, in that case,
petitioners' objection thereto was held inadequate to declare the section unconstitutional.

On the second issue, petitioner advances the highly stretched theory that Sec. 4 of the Plunder Law circumvents the immutable
obligation of the prosecution to prove beyond reasonable doubt the predicate acts constituting the crime of plunder when it requires
only proof of a pattern of overt or criminal acts showing unlawful scheme or conspiracy –

SEC. 4. Rule of Evidence. -For purposes of establishing the crime of plunder, it shall not be necessary to prove each and
every criminal act done by the accused in furtherance of the scheme or CO11S1'iracy to amass, accumulate or acquire ill-
gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the
overall unlawful scheme or conspiracy.

The running fault in this reasoning is obvious even to the simplistic mind. In a criminal prosecution for plunder, as in all other crimes, the
accused always has in his favor the presumption of innocence which is guaranteed by the Bill of Rights, and unless the State succeeds
in demonstrating by proof beyond reasonable doubt that culpability lies, the accused is entitled to an acquittal. 29 The use of the
"reasonable doubt" standard is indispensable to command the respect and confidence of the community in the application of criminal
law .It is critical that the moral force of criminal law be not diluted by a standard of proof that leaves people in doubt whether innocent
men are being condemned. It is also important in our free society that every individual going about his ordinary affairs has confidence
that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost
certainty. This "reasonable doubt" standard has acquired such exalted stature in the realm of constitutional law as it gives life to the
Due Process Clause which protects the accused against conviction except upon proof beyond reasonable doubt of every fact
necessary to constitute the crime with which he is charged. 30 The following exchanges between Rep. Rodolfo Albano and Rep. Pablo
Garcia on this score during the deliberations in the floor of the House of Representatives are elucidating -

DELIBERATIONS OF THE HOUSE OF REPRESENTATIVES ON RA 7080, 9 October 1990

MR. ALBANO: Now, Mr. Speaker, it is also elementary in our criminal law that what is alleged in the information must
be proven beyond reasonable doubt. If we will prove only one act and find him guilty of the other acts enumerated in
the information, does that not work against the right of the accused especially so if the amount committed, say, by
falsification is less than PIOO million, but the totality of the crime committed is PIOO million since there is
malversation, bribery, falsification of public document, coercion, theft ?

MR. GARCIA: Mr. Speaker, not everything alleged in the information needs to be proved beyond reasonable doubt.
What is required to be proved beyond reasonable doubt is every element of the crime charged. For example, Mr.
Speaker, there is an enumeration of the things taken by the robber in the information -three pairs of pants, pieces of
jewelry. These need not be proved beyond reasonable doubt, but these will not prevent the conviction of a crime for
which he was charged just because, say, instead of 3 pairs of diamond earrings the prosecution proved two. Now,
what is required to be proved beyond reasonable doubt is the element of the offense.

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

MR. GARCIA: With due respect, Mr. Speaker, for purposes of proving an essential element of the crime, there is a
need to prove that ele111ent beyond reasonable doubt. For example, one essential element of the crime is that the
amount involved is P100 million. Now, in a series of defalcations and other acts of corruption in the enumeration the
total amount would be PIIO orPI20 million, but there are certain acts that could not be proved, so, we will sum up the
amounts involved in those transactions which were proved. Now, if the amount involved in these transactions, proved
beyond reasonable doubt, is P100 million, then there is a crime of plunder (underscoring supplied).

It is thus plain from the foregoing that the legislature did not in any manner refashion the standard quantum of proof in the
crime of plunder. The burden still remains with the prosecution to prove beyond any iota of doubt every fact or element
necessary to constitute the crime.

The thesis that Sec. 4 does away with proof of each and every component of the crime suffers from a dismal misconception of
the import of that provision. What the prosecution needs to prove beyond reasonable doubt is only a number of acts sufficient
to form a combination or series which would constitute a pattern and involving an amount of at least P50,000,000.00. There is
no need to prove each and every other act alleged in the Information to have been committed by the accused in furtherance of
the overall unlawful scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth. To illustrate, supposing that the
accused is charged, in an Information for plunder with having committed fifty (50) raids on the public treasury. The prosecution
need not prove all these fifty (50) raids, it being sufficient to prove by pattern at least two (2) of the raids beyond reasonable
doubt provided only that they amounted to at least P50,000,000.00.31

A reading of Sec. 2 in conjunction with Sec. 4, brings us to the logical conclusion that "pattern of overt or criminal acts
indicative of the overall unlawful scheme or conspiracy" inheres in the very acts of accumulating, acquiring or amassing hidden
wealth. Stated othewise, such pattern arises where the prosecution is able to prove beyond reasonable doubt the predicate
acts as defined in Sec. 1, par. (d). Pattern is merely a by-product of the proof of the predicate acts. , This conclusion is
consistent with reason and common sense. There would be no other explanation for a combination or series of overt acts or
criminal acts to stash P50,000,000.00 or more, than "a scheme or conspiracy to amass, accumulate or acquire ill gotten
wealth." The prosecution is therefore not required to make a deliberate and conscious effort to prove pattern as it necessarily
follows with the establishment of a series or combination of the predicate acts.

Relative to petitioner's contentions on the purported defect of Sec. 4 is his submission that "pattern" is "a very important
element of the crime of plunder;" and that Sec. 4 is "two pronged, (as) it contains a rule of evidence and a substantive element
of the crime," such that without it the accused cannot be convicted of plunder -

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

We do not subscribe to petitioner's stand. Primarily, all the essential elements of plunder can be culled and understood from its
definition in Sec. 2, in relation to Sec. 1, par. (d), and "pattern" is not one of them. Moreover, the epigraph and opening clause
of Sec. 4 is clear and unequivocal:

SEC. 4. Rule of Evidence. -For purposes of establishing the crime of plunder x x x x

It purports to do no more than prescribe a rule of procedure for the prosecution of a criminal case for plunder. Being a
purely procedural measure, Sec. 4 does not define or establish any substantive right in favor of the accused but only
operates in furtherance of a remedy. It is only a means to an end, an aid to substantive law. Indubitably, even without
invoking Sec. 4, a conviction for plunder may be had, for what is crucial for the prosecution is to present sufficient
evidence to engender that moral certitude exacted by the fundamental law to prove the guilt of the accused beyond
reasonable doubt. Thus, even granting for the sake of argument that Sec. 4 is flawed and vitiated for the reasons
advanced by petitioner, it may simply be severed from the rest of the provisions without necessarily resulting in the
demise of the law; after all, the existing rules on evidence can supplant Sec. 4 more than enough. Besides, Sec. 7 of
RA 7080 provides for a separability clause -

Sec. 7. Separability of Provisions. -If any provisions of this Act or the application thereof to any person or
circumstance is held invalid, the remaining provisions of this Act and the application of such provisions to
other persons or circumstances shall not be affected thereby.

Implicit in the foregoing section is that to avoid the whole act from being declared invalid as a result of the nullity of
some of its provisions, assuming that to be the case although it is not really so, all the provisions thereof should
accordingly be treated independently of each other, especially if by doing so, the objectives of the statute can best be
achieved.

As regards the third issue, again we agree with Justice Mendoza that plunder is a malum in se which requires proof
of criminal intent. Thus, he says, in his Concurring Opinion -
x x x Precisely because the constitutive crimes are mala in se the element of mens rea must be proven in a
prosecution for plunder. It is noteworthy that the amended information alleges that the crime of plunder was
committed "willfully, unlawfully and criminally." It thus alleges guilty knowledge on the part of petitioner.

In support of his contention that the statute eliminates the requirement of mens rea and that is the reason he
claims the statute is void, petitioner cites the following remarks of Senator Tañada made during the
deliberation on S.B. No.733:

SENATOR TAÑADA ...And the evidence that will be required to convict him would not be evidence
for each and every individual criminal act but only evidence sufficient to establish the conspiracy or
scheme to commit this crime of plunder.33

However, Senator Tañada was discussing §4 as shown by the succeeding portion of the transcript quoted
by petitioner:

SENATOR ROMULO: And, Mr. President, the Gentleman feels that it is contained in Section 4,
Rule of Evidence, which, in the Gentleman's view, would provide for a speedier and faster process
of attending to this kind of cases?

SENATOR TAÑADA: Yes, Mr. President… 34

Senator Tañada was only saying that where the charge is conspiracy to commit plunder, the prosecution
need not prove each and every criminal act done to further the scheme or conspiracy, it being enough if it
proves beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme
or conspiracy. As far as the acts constituting the pattern are concerned, however, the elements of the crime
must be proved and the requisite mens rea must be shown.

Indeed, §2 provides that -

Any person who participated with the said public officer in the commission of an offense
contributing to the, crime of plunder shall likewise be punished for such offense. In the imposition of
penalties,-the degree of participation and the attendance of mitigating and extenuating
circumstances, as provided by the Revised Penal Code, shall be considered by the court.

The application of mitigating and extenuating circumstances in the Revised Penal Code to prosecutions
under the Anti-Plunder Law indicates quite clearly that mens rea is an element of plunder since the degree
of responsibility of the offender is determined by his criminal intent. It is true that §2 refers to "any person
who participates with the said public officer in the commission of an offense contributing to the crime of
plunder." There is no reason to believe, however, that it does not apply as well to the public officer as
principal in the crime. As Justice Holmes said: "We agree to all the generalities about not supplying criminal
laws with what they omit, but there is no canon against using common sense in construing laws as saying
what they obviously mean."35

Finally, any doubt as to whether the crime of plunder is a malum in se must be deemed to have been
resolved in the affirmative by the decision of Congress in 1993 to include it among the heinous crimes
punishable by reclusion perpetua to death. Other heinous crimes are punished with death as a straight
penalty in R.A. No.7659. Referring to these groups of heinous crimes, this Court held in People v.
Echegaray:36

The evil of a crime may take various forms. There are crimes that are, by their very nature,
despicable, either because life was callously taken or the victim is treated like an animal and utterly
dehumanized as to completely disrupt the normal course of his or her growth as a human being. ...
Seen in this light, the capital crimes of kidnapping and i. serious illegal detention for ransom
resulting in the death of the victim or the victim is raped, tortured, or subjected to dehumanizing
acts; destructive arson resulting in death; and drug offenses involving minors or resulting in the
death of the victim in the case of other crimes; as well as murder, rape, pi1rricide, infanticide,
kidnapping and serious illegal detention, where the victim is detained for more than three days or
serious physical injuries were inflicted on the victim or threats to kill him were made or the victim is
a minor, robbery with homicide, rape or intentional mutilation, destructive arson, and carnapping
where the owner, driver or occupant of the carnapped vehicle is killed or raped , which are
penalized by reclusion perpetua to death, are clearly heinous by their very nature.

There are crimes however in which the abomination lies in the significance and implications of the
subject criminal acts in the scheme of the larger socio-political and economic context in which the
state finds itself to be struggling to develop and provide for its poor and underprivileged masses.
 Reeling from decades of corrupt tyrannical rule that bankrupted the government and impoverished
the population, the Philippine Government must muster the political will to dismantle the culture of
corruption, dishonesty, greed and syndicated criminality that so deeply entrenched itself in the
structures of society and the psyche of the populace. [With the government] terribly lacking the
money to provide even the most basic services to its people, any form of misappropriation or
misapplication of government funds translates to an actual threat to the very existence of
government, and in turn, the very survival of the people it governs over. Viewed in this context. no
less heinous are the effects and repercussions of crimes like qualified bribery, destructive arson
resulting in death, and drug offenses involving government officials, employees or officers, that
their perpetrators must not be allowed to cause further destruction and damage to society .

The legislative declaration in R.A. No.7659 that plunder is a heinous offense implies that it is a malum in se.
For when the acts punished are inherently immoral or inherently wrong, they are mala in se37 and it does not
matter that such acts are punished in a special law, especially since in the case of plunder the predicate
crimes are mainly mala in se. Indeed, it would be absurd to treat prosecutions for plunder as though they are
mere prosecutions for violations of the Bouncing Check Law (B.P. BIg. 22) or of an ordinance against
jaywalking, without regard to the inherent wrongness of the acts.

To clinch, petitioner likewise assails the validity of RA 7659, the amendatory law of RA 7080, on constitutional grounds. Suffice it to say
however that it is now too late in the day for him to resurrect this long dead issue, the same having been eternally consigned by People
v. Echegaray38 to the archives of jurisprudential history. The declaration of the Court therein that RA 7659 is constitutionally valid stands
as a declaration of the State, and becomes, by necessary effect, assimilated in the Constitution now as an integral part of
it.1âwphi1.nêt

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

These are times that try men's souls. In the checkered history of this nation, few issues of national importance can equal the amount of
interest and passion generated by petitioner's ignominious fall from the highest office, and his eventual prosecution and trial under a
virginal statute. This continuing saga has driven a wedge of dissension among our people that may linger for a long time. Only by
responding to the clarion call for patriotism, to rise above factionalism and prejudices, shall we emerge triumphant in the midst of
ferment.

PREMISES CONSIDERED, this Court holds that RA 7080 otherwise known as the Plunder Law, as amended by RA 7659, is
CONSTITUTIONAL. Consequently, the petition to declare the law unconstitutional is DISMISSED for lack of merit.

SO ORDERED.

CONCURRED. Davide Jr, CJ., Bellosillo, Buena, De Leon Jr., Melo, Mendoz, Panganiban, Puno, Quisumbing, and, Vitug, J.

DISSENTED. Kapunan, Pardo, Ynaes-Santiago, and Sandoval-Gutierrez

ABSTAINED. Carpio, J.