G.R. No.

L-2068 October 20, 1948 But we made it clear that the "defendant can not, as a matter of right, compel the
complaint and his witnesses to repeat in his presence what they had said at the
DOMINADOR B. BUSTOS, Petitioner, vs. ANTONIO G. LUCERO, Judge of First preliminary examination before the issuance of the order of arrest." We called
Instance of Pampanga, Respondent. attention to the fact that "the constitutional right of an accused to be confronted by
the witnesses against him does not apply to preliminary hearings' nor will the
TUASON, J.: chanrobles virtual law library absence of a preliminary examination be an infringement of his right to confront
witnesses." As a matter of fact, preliminary investigation may be done away with
entirely without infringing the constitutional right of an accused under the due
The petitioner herein, an accused in a criminal case, filed a motion with the Court of
process clause to a fair trial.
First Instance of Pampanga after he had been bound over to that court for trial,
praying that the record of the case be remanded to the justice of the peace court of
Masantol, the court of origin, in order that the petitioner might cross-examine the The foregoing decision was rendered by a divided court. The minority went farther
complainant and her witnesses in connection with their testimony, on the strength than the majority and denied even any discretion on the part of the justice of the
of which warrant was issued for the arrest of the accused. The motion was denied peace or judge holding the preliminary investigation to compel the complainant and
and that denial is the subject matter of this proceeding. his witnesses to testify anew. Upon the foregoing considerations, the present
petition is dismissed with costs against the petitioner.
According to the memorandum submitted by the petitioner's attorney to the Court
of First Instance in support of his motion, the accused, assisted by counsel, appeared Moran, C.J., Paras, Pablo, Bengzon, and Briones, JJ., concur.
at the preliminary investigation. In that investigation, the justice of the peace
informed him of the charges and asked him if he pleaded guilty or not guilty, upon
which he entered the plea of not guilty. "Then his counsel moved that the
complainant present her evidence so that she and her witnesses could be examined
and cross-examined in the manner and form provided by law." The fiscal and the
private prosecutor objected, invoking section 11 of rule 108, and the objection was
sustained. "In view thereof, the accused's counsel announced his intention to
renounce his right to present evidence," and the justice of the peace forwarded the
case to the court of first instance.

Leaving aside the question whether the accused, after renouncing his right to present
evidence, and by reason of that waiver he was committed to the corresponding court
for trial, is estopped, we are of the opinion that the respondent judge did not act in
excess of his jurisdiction or in abuse of discretion in refusing to grant the accused's
motion to return the record for the purpose set out therein. In Dequito and Saling
Buhay vs. Arellano, G.R. No. L-1336, recently promulgated, in which case the
respondent justice of the peace had allowed the accused, over the complaint's
objection, to recall the complainant and her witnesses at the preliminary
investigation so that they might be cross-examined, we sustained the justice of the
peace's order. We said that section 11 of Rule 108 does not curtail the sound
discretion of the justice of the peace on the matter. We said that "while section 11
of Rule 108 defines the bounds of the defendant's right in the preliminary
investigation, there is nothing in it or any other law restricting the authority, inherent
in a court of justice, to pursue a course of action reasonably calculated to bring out
the truth."chnrobles virtual law library
[G.R. No. 9726. December 8, 1914. ] countries in all of which both languages are spoken and written, having as such the
supervision and control of said newspaper, did then and there willfully, feloniously,
THE UNITED STATES, Plaintiff-Appellee, v. CARSON TAYLOR, Defendant-Appellant. maliciously, and with intent to impeach the honesty, virtue, and reputation of one
Ramon Sotelo as member of the bar of the Philippine Islands and as a private
C. W O’Brien, for Appellant. individual, and to expose him to public hatred, contempt and ridicule, compose,
print, edit, publish, and circulate and procure to be composed, printed, edited,
Solicitor-General Corpus, for Appellee. published, and circulated in said newspaper’s issue of the above mentioned date,
September 25, 1913, a certain false and malicious defamation and libel in the English
SYLLABUS language of and concerning the said Ramon Sotelo, which reads as follows. :

1. LIBEL AND SLANDER; PUBLICATION; EDITOR, AUTHOR, PROPRIETOR, MANAGER. — "‘OWNERS FIRED BUILDING TO COLLECT INSURANCE. — CRIMINAL CHARGES
Section 6 of the Libel Law (Act No. 277) provides a punishment only for the "author, FOLLOW CIVIL SUIT.
editor, or proprietor," for the publication of a libel in a newspaper. In the present
case no person was represented to be either the "author, the editor, or the "‘Conspiracy divulged in three sworn statements made by members of the party after
proprietor" of the newspaper in which the alleged libel was published. The proof a family disagreement. Sensational statement sworn to. Mystery of Calle O’Donnell
shows that the defendant was the "manager." There was not a word of proof showing fire solved and papers served.
that as "manager" he was the author of the article published or the editor or the
proprietor of the newspaper. The "manager" of a newspaper may be the author of "‘Conspiracy to defraud the insurance company.
the articles published or the editor or the publisher of the newspaper. His exact
relation to the newspaper or publication is a matter of proof. He can not avoid "‘The building was fired to collect the amount of insurance.
responsibility as the "author, editor, or proprietor" by using some other term or
word, when, as a matter of fact, he is the "author, editor, or proprietor." The "author, "‘The movable furniture of value was removed before the fire.
editor, or proprietor" of a newspaper or publication can not avoid responsibility by
simply calling himself the "manager" or "printer." He can not wear the toga of "‘The full amount of the insurance was collected, and the conspiracy was a success.
"author, editor, or proprietor" and hide his responsibility by giving himself some
other name. While the terms "author, editor, and proprietor" of a newspaper are "‘The above is the gist of the sworn statements of Vicente Sotelo and Eugenio Martin
terms well defined, the particular words "author, editor, or proprietor" are not in connection with the fire that destroyed house No. 2157 Calle O’Donnell on April
material or important, further than they are words which are intended to show the 4.
relation of the responsible party to the publication. That relation may as well exist
under some other name or denomination. "‘The case in question is a sensational one to say .he least, and the court is being
petitioned to set aside the ruling and cite the parties to show cause why they should
DECISION not be cited to answer charges of conspiracy to defraud.

JOHNSON, J. : "‘On April 4, 1913, the house located at 2157 Calle O’Donnell was destroyed by fire.
The house was insured for P5,000, the contents for an additional P5,000, with the
This was an action for criminal libel. West of Scotland Insurance Association, of which Lutz & Co. are the local agents, with
an additional P1,500 with Smith, Bell & Co.
The complaint alleged:
"‘The full amount of the insurance on the property was paid by the agents of the
"That on the 25th day of September, 1913, the said Carson Taylor, being then and insurance companies and the matter apparently dropped from the records.
there the acting editor and proprietor, manager, printer, and publisher in the city of
Manila, Philippine Islands, of a certain daily bilingual newspaper, edited in the English "‘Then there was internal trouble and information began to leak out which resulted
and Spanish languages, and known as the ’Manila Daily Bulletin,’ a paper of large in sensational statements to the effect that the destruction of the property had been
circulation throughout the Philippine Islands, as well as in the United States and other an act of incendiarism in order to collect the insurance. Then there was an
investigation started and it resulted in sworn statements of the three persons above
mentioned.
"‘Notarial returns were made yesterday by the sheriff, based on the sworn
statements and the parties are cited to appear in court and show cause.
read the same; that the statements and allegations made in said paragraph are
wholly false and untrue, thus impeaching the honesty, virtue and reputation of the
said offended party as a member of the bar of the Philippine Islands and as a private
individual, and exposing him to public hatred, contempt and ridicule. Contrary to
law."cralaw virtua1aw library

"‘The investigation also showed that the furniture, which was supposed to be in the Upon said complaint the defendant was arrested, arraigned, plead not guilty, was
house at the time of the conflagration and which was paid for by the insurance tried, found guilty of the crime charged, and sentenced by the Honorable George N.
agents, sworn statements having been made that it was destroyed in the fire, was in Hurd, judge, to pay a fine of P200. From that sentence the defendant appealed to this
a certain house in Montalban, where it was identified upon the sworn statements of court and made the following assignment of error:
the above mentioned. Implicated in the charges of conspiracy and fraud is the name
of the attorney for the plaintiff who made affidavit as to the burning of the house "First. The court erred in finding that the defendant was responsible for and guilty of
and against whom criminal proceedings will be brought as well as against the original the alleged libel.
owners.
"Second. The court erred in finding that the defendant was the proprietor and
"‘Attorney Burke, who represents Lutz & Co. in the proceedings, was seen last night publisher of the ’Manila Daily Bulletin.’
and asked for a statement as to the case. Mr. Burke refused to talk on the case and
stated that when it came to trial it would be time enough to obtain the facts. "Third. The court erred in finding that the alleged libelous article was libelous per se.

"‘The present action came before the court on a motion of Attorney Burke to set "Fourth. The court erred in holding that the article was libelous, while finding that
aside the judgment, which, in the original case, gave the owners of the property there was no malice.
judgment for the amount of the insurance.
"Fifth. The court erred in finding that the alleged libelous article referred to attorney
"‘Attorney Burke filed the sworn statements with the court and the notarial returns Ramon Sotelo.
to the same were made yesterday afternoon, the sworn statements as to the burning
of the house being in the hands of the sheriff. "Sixth. The court erred in finding that Ramon Sotelo was attorney for the plaintiffs in
case No. 10191, when the alleged libel was published."
"‘It was stated yesterday that a criminal action would follow the civil proceedings
instituted to recover the funds in the case entitled on the court records, Maria After a careful examination of the record and the arguments presented by the
Mortera de Eceiza and Manuel Eceiza versus the west of Scotland Association, appellant, we deem it necessary to discuss only the first and second assignments of
Limited, No. 10191 on the court records. error.

"‘It might be stated also that Eugenio Martin was one of the plaintiffs in the recent In the Philippine Islands there exist no crimes such as are known in the United States
suit brought against Ex Governor W. Cameron Forbes for lumber supplied for his and England as common law crimes. No act constitutes a crime here unless it is made
Boston home.’ so by law. Libel is made a crime here by Act No. 277 of the United States Philippine
Commission. Said Act (No. 277) not only defines the crime of libel and prescribes the
"That in this article is contained the following paragraph. to wit: particular conditions necessary to constitute it, but it also names the persons who
may be guilty of such crime. In the present case the complaint alleges that the
"‘ . . .Implicated in the charges of conspiracy and fraud is the name of the attorney defendant was, at the time of the publication of said alleged article "the acting editor,
for the plaintiff who made affidavit as to the burning of the house and against whom proprietor, manager, printer, publisher, etc. etc. of a certain bilingual newspaper,
criminal proceedings will be brought as well as against the original owners,’ by which etc., known as the ’Manila Daily Bulletin,’ a paper of large circulation throughout the
the said accused meant to refer and did refer to the said Ramon Sotelo, who then Philippine Islands, as well as in the United States and other countries."
and there was the attorney for the plaintiff in the case aforesaid, No. 10191 of the
Court of First Instance of the city of Manila, and so was understood by the public who It will be noted that the complaint charges the defendant as "the acting editor,
proprietor, manager, printer, and publisher." From an examination of said Act No.
277, we find that section 6 provides that: "Every author, editor, or proprietor of any
book, newspaper, or serial publication is chargeable with the publication of any
words contained in any part of said book or number of each newspaper or serial as
fully as if he were the author of the same."
By an examination of said article, with reference to the persons who may be liable
for the publication of a libel in a newspaper, we find that it only provides for the
punishment of "the author, editor, or proprietor." It would follow, therefore, that
unless the proof shows that the defendant in the present case is the "author, editor,
or proprietor" of the newspaper in which the libel was published, he can not be held
liable.
In the present case the Solicitor-General in his brief said that — "No person is
represented to be either the ’author, editor, or proprietor.’" That statement of the
Solicitor-General is fully sustained by the record. There is not a word of proof in the
record showing that the defendant was either the "author, the editor, or the
proprietor." The proof shows that the defendant was the "manager." He must,
therefore, be acquitted of the crime charged against him, unless it is shown by the
proof that he, as "manager" of the newspaper, was in some way directly responsible
for the writing, editing, or publishing of the matter contained in said alleged libelous
article. The prosecution presented the newspaper, the "Manila Daily Bulletin," for the
purpose of showing the relation which the defendant had to it. That was the only
proof presented by the prosecution to show the relation which the defendant had to
the publication of the libel in question. From an examination of the editorial page of
said exhibit, we find that it shows that the "Manila Daily Bulletin" is owned by the
"Bulletin Publishing Company," and that the defendant was its manager. There is not
a word of proof in the record which shows what relation the manager had to the
publication of said newspaper. We might, by a series of presumptions and
assumptions, conclude that the manager of a newspaper has some direct
responsibility with its publication. We believe, however, that such presumptions and
assumptions, in the absence of a single letter of proof relating thereto, would be
unwarranted and unjustified. The prosecuting attorney had an opportunity to
present proof upon that question. Either because he had no proof or because no such
proof was obtainable, he presented none. It certainly is not a difficult matter to
ascertain who is the real person responsible for the publication of a newspaper which
is published daily and has a wide circulation in a particular community. No question
was asked the defendant concerning his particular relation to the publication of the
newspaper in question. We do not desire to be understood in our conclusions here
as holding that the "manager" or the "printer" may not, under certain conditions and
proper proof, be held to be the "author, editor, or proprietor" of a newspaper. He
may denominate himself as "manager" or "printer" simply, and be at the same time
the "author, editor, or proprietor" of the newspaper. He can not avoid responsibility
by using some other term or word, indicating his relation to the newspaper or the
publication, when, as a matter of fact, he is the "author, the editor, or the proprietor"
of the same. His real relation to the said publication is a matter of proof. The Solicitor-
General, in his brief, says that the defendant used the word "manager" with the hope
of evading legal responsibility, as the Libel Law places the responsibility for publishing
a libel, on "every author, editor, or proprietor of any book, etc." Had the prosecuting
attorney in the trial of the cause believed that the defendant, even though he called
himself the "manager" was, in fact, the "author, editor, or proprietor" of said
publication, he should have presented some proof supporting that contention.
Neither do we desire to be understood as holding that simply because a person
connected with the publication of a newspaper who calls himself the "manager" or
"printer" may not, in fact and at the same time, be the "author, editor, or proprietor."
The "author, editor, or proprietor" can not avoid responsibility for the writing and
publication of a libelous article, by simply calling himself the "manager" or the
"printer" of a newspaper. That, however, is a question of proof. The burden is upon
the prosecution to show that the defendant is, by whatever name he may call himself,
in truth and in fact, the "author, editor, or proprietor" of a newspaper. The courts
cannot assume, in the absence of proof, that one who called himself "manager" was
in fact the "author, editor, or proprietor." We might assume, perhaps, that the
’’manager" of a newspaper plays an important part in the publication of the same by
virtue of the general signification of the word "manager." Men can not, however, be
sentenced upon the basis of a mere assumption. There must be some proof. The
word "manage" has been defined by Webster to mean "to have under control and
direction; to conduct; to guide; to administer; to treat; to handle." Webster defines
"manager" to be "one who manages; a conductor or director; as, the manager of a
theater." A manager, as that word is generally understood, we do not believe includes
the idea of ownership. Generally speaking it means one who is representing another
as an agent. That being true, his powers and duties and obligations are generally
defined by contract. He may have expressed as well as implied powers, but whatever
his powers and duties are they must be dependent upon the nature of the business
and the terms of his contract. There is no fixed rule which indicates particularly and
definitely his duties, powers and obligations. An examination into the character of
the business and the contract of his employment must be made for the purpose of
ascertaining definitely what his duties and obligations are. His exact relation is always
a matter of proof. It is incumbent upon the prosecution in a case like the present, to
show that whatever title, name or designation the defendant may bear, he was, in
fact, the "author, the editor, or the proprietor" of the newspaper. If he was in fact
the "author, editor, or proprietor," he can not escape responsibility by calling himself
the "manager" or "printer." It is the relation which he bears to the publication and
not the name or title which he has assumed, which is important in an investigation.
He can not wear the toga of author or editor and hide his responsibility by giving
himself some other name. While the terms "author, editor, and proprietor" of a
newspaper are terms well defined, the particular words "author, editor, or
proprietor" are not material or important, further than that they are words which are
intended to show the relation of the responsible party to the publication. That
relation may as well exist under some other name or denomination.

For the foregoing reasons. therefore, there being no proof whatever in the record
showing that the defendant was the "author, the editor, or the proprietor" of the
newspaper in question, the sentence of the lower court must be reversed, the
complaint dismissed and the defendant discharged from the custody of the law, with
costs de officio. So ordered.

Arellano, C.J., Moreland, Trent and Araullo, JJ., concur.

G.R. No. 180016 April 29, 2014
LITO CORPUZ, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
PERALTA, J.:
This is to resolve the Petition for Review on Certiorari, under Rule 45 of the Rules of
Court, dated November 5, 2007, of petitioner Lito Corpuz (petitioner), seeking to
reverse and set aside the Decision1 dated March 22, 2007 and Resolution2 dated
September 5, 2007 of the Court of Appeals (CA), which affirmed with modification
the Decision3 dated July 30, 2004 of the Regional Trial Court (RTC), Branch 46, San
Fernando City, finding the petitioner guilty beyond reasonable doubt of the crime of
Estafa under Article 315, paragraph (1), sub-paragraph (b) of the Revised Penal Code.
The antecedent facts follow.
Private complainant Danilo Tangcoy and petitioner met at the Admiral Royale Casino
in Olongapo City sometime in 1990. Private complainant was then engaged in the
business of lending money to casino players and, upon hearing that the former had
some pieces of jewelry for sale, petitioner approached him on May 2, 1991 at the
same casino and offered to sell the said pieces of jewelry on commission basis.
Private complainant agreed, and as a consequence, he turned over to petitioner the
following items: an 18k diamond ring for men; a woman's bracelet; one (1) men's
necklace and another men's bracelet, with an aggregate value of ₱98,000.00, as
evidenced by a receipt of even date. They both agreed that petitioner shall remit the
proceeds of the sale, and/or, if unsold, to return the same items, within a period of
60 days. The period expired without petitioner remitting the proceeds of the sale or
returning the pieces of jewelry. When private complainant was able to meet
petitioner, the latter promised the former that he will pay the value of the said items
entrusted to him, but to no avail.
Thus, an Information was filed against petitioner for the crime of estafa, which reads
as follows:
That on or about the fifth (5th) day of July 1991, in the City of Olongapo, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, after
having received from one Danilo Tangcoy, one (1) men's diamond ring, 18k, worth
₱45,000.00; one (1) three-baht men's bracelet, 22k, worth ₱25,000.00; one (1) two-
baht ladies' bracelet, 22k, worth ₱12,000.00, or in the total amount of Ninety-Eight
Thousand Pesos (₱98,000.00), Philippine currency, under expressed obligation on the
part of said accused to remit the proceeds of the sale of the said items or to return
the same, if not sold, said accused, once in possession of the said items, with intent
to defraud, and with unfaithfulness and abuse of confidence, and far from complying
with his aforestated obligation, did then and there wilfully, unlawfully and feloniously
misappropriate, misapply and convert to his own personal use and benefit the
aforesaid jewelries (sic) or the proceeds of the sale thereof, and despite repeated
demands, the accused failed and refused to return the said items or to remit the
amount of Ninety- Eight Thousand Pesos (₱98,000.00), Philippine currency, to the
damage and prejudice of said Danilo Tangcoy in the aforementioned amount.
CONTRARY TO LAW.
On January 28, 1992, petitioner, with the assistance of his counsel, entered a plea of
not guilty. Thereafter, trial on the merits ensued.
The prosecution, to prove the above-stated facts, presented the lone testimony of
Danilo Tangcoy. On the other hand, the defense presented the lone testimony of
petitioner, which can be summarized, as follows:
Petitioner and private complainant were collecting agents of Antonio Balajadia, who
is engaged in the financing business of extending loans to Base employees. For every
collection made, they earn a commission. Petitioner denied having transacted any
business with private complainant.
However, he admitted obtaining a loan from Balajadia sometime in 1989 for which
he was made to sign a blank receipt. He claimed that the same receipt was then dated
May 2, 1991 and used as evidence against him for the supposed agreement to sell
the subject pieces of jewelry, which he did not even see.
After trial, the RTC found petitioner guilty beyond reasonable doubt of the crime
charged in the Information. The dispositive portion of the decision states:
WHEREFORE, finding accused LITO CORPUZ GUILTY beyond reasonable doubt of the
felony of Estafa under Article 315, paragraph one (1), subparagraph (b) of the Revised
Penal Code;
there being no offsetting generic aggravating nor ordinary mitigating circumstance/s
to vary the penalty imposable;
accordingly, the accused is hereby sentenced to suffer the penalty of deprivation of
liberty consisting of an imprisonment under the Indeterminate Sentence Law of
FOUR (4) YEARS AND TWO (2) MONTHS of Prision Correccional in its medium period
AS MINIMUM, to FOURTEEN (14) YEARS AND EIGHT (8) MONTHS of Reclusion
Temporal in its minimum period AS MAXIMUM; to indemnify private complainant
Danilo Tangcoy the amount of ₱98,000.00 as actual damages, and to pay the costs of
suit.
SO ORDERED.
The case was elevated to the CA, however, the latter denied the appeal of petitioner
and affirmed the decision of the RTC, thus:
WHEREFORE, the instant appeal is DENIED. The assailed Judgment dated July 30,
2004 of the RTC of San Fernando City (P), Branch 46, is hereby AFFIRMED with
MODIFICATION on the imposable prison term, such that accused-appellant shall
suffer the indeterminate penalty of 4 years and 2 months of prision correccional, as
minimum, to 8 years of prision mayor, as maximum, plus 1 year for each additional
₱10,000.00, or a total of 7 years. The rest of the decision stands.
SO ORDERED.
Petitioner, after the CA denied his motion for reconsideration, filed with this Court
the present petition stating the following grounds:
A. THE HONORABLE COURT OF APPEALS ERRED IN CONFIRMING THE ADMISSION
AND APPRECIATION BY THE LOWER COURT OF PROSECUTION EVIDENCE, INCLUDING
ITS EXHIBITS, WHICH ARE MERE MACHINE COPIES, AS THIS VIOLATES THE BEST
EVIDENCE RULE;
B. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S
FINDING THAT THE CRIMINAL INFORMATION FOR ESTAFA WAS NOT FATALLY
DEFECTIVE ALTHOUGH THE SAME DID NOT CHARGE THE OFFENSE UNDER ARTICLE
315 (1) (B) OF THE REVISED PENAL CODE IN THAT -
1. THE INFORMATION DID NOT FIX A PERIOD WITHIN WHICH THE SUBJECT
[PIECES OF] JEWELRY SHOULD BE RETURNED, IF UNSOLD, OR THE MONEY
TO BE REMITTED, IF SOLD;
2. THE DATE OF THE OCCURRENCE OF THE CRIME ALLEGED IN THE
INFORMATION AS OF 05 JULY 1991 WAS MATERIALLY DIFFERENT FROM THE
ONE TESTIFIED TO BY THE PRIVATE COMPLAINANT WHICH WAS 02 MAY
1991;
C. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S
FINDING THAT DEMAND TO RETURN THE SUBJECT [PIECES OF] JEWELRY, IF UNSOLD,
OR REMIT THE PROCEEDS, IF SOLD – AN ELEMENT OF THE OFFENSE – WAS PROVED;
D. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S
FINDING THAT THE PROSECUTION'S CASE WAS PROVEN BEYOND REASONABLE
DOUBT ALTHOUGH -
1. THE PRIVATE COMPLAINANT TESTIFIED ON TWO (2) VERSIONS OF THE
INCIDENT;
2. THE VERSION OF THE PETITIONER – ACCUSED IS MORE
STRAIGHTFORWARD AND LOGICAL, CONSISTENT WITH HUMAN
EXPERIENCE;
3. THE EQUIPOISE RULE WAS NOT APPRECIATED IN AND APPLIED TO THIS
CASE;
4. PENAL STATUTES ARE STRICTLY CONSTRUED AGAINST THE STATE.
In its Comment dated May 5, 2008, the Office of the Solicitor General (OSG) stated
the following counter-arguments:
The exhibits were properly admitted inasmuch as petitioner failed to object to their
admissibility.
The information was not defective inasmuch as it sufficiently established the
designation of the offense and the acts complained of.
The prosecution sufficiently established all the elements of the crime charged.
This Court finds the present petition devoid of any merit.
The factual findings of the appellate court generally are conclusive, and carry even
more weight when said court affirms the findings of the trial court, absent any
showing that the findings are totally devoid of support in the records, or that they
are so glaringly erroneous as to constitute grave abuse of discretion.4 Petitioner is of
the opinion that the CA erred in affirming the factual findings of the trial court. He
now comes to this Court raising both procedural and substantive issues.
According to petitioner, the CA erred in affirming the ruling of the trial court, Moreover, the said date is also near the due date within which accused-appellant
admitting in evidence a receipt dated May 2, 1991 marked as Exhibit "A" and its should have delivered the proceeds or returned the said [pieces of jewelry] as
submarkings, although the same was merely a photocopy, thus, violating the best testified upon by Tangkoy, hence, there was sufficient compliance with the rules.
evidence rule. However, the records show that petitioner never objected to the Accused-appellant, therefore, cannot now be allowed to claim that he was not
admissibility of the said evidence at the time it was identified, marked and testified properly apprised of the charges proferred against him.7
upon in court by private complainant. The CA also correctly pointed out that
petitioner also failed to raise an objection in his Comment to the prosecution's formal It must be remembered that petitioner was convicted of the crime of Estafa under
offer of evidence and even admitted having signed the said receipt. The established Article 315, paragraph 1 (b) of the RPC, which reads:
doctrine is that when a party failed to interpose a timely objection to evidence at the
time they were offered in evidence, such objection shall be considered as waived. 5 ART. 315. Swindling (estafa). – Any person who shall defraud another by any of the
means mentioned hereinbelow.
Another procedural issue raised is, as claimed by petitioner, the formally defective
Information filed against him. He contends that the Information does not contain the 1. With unfaithfulness or abuse of confidence, namely:
period when the pieces of jewelry were supposed to be returned and that the date
when the crime occurred was different from the one testified to by private
xxxx
complainant. This argument is untenable. The CA did not err in finding that the
Information was substantially complete and in reiterating that objections as to the
(b) By misappropriating or converting, to the prejudice of another, money, goods, or
matters of form and substance in the Information cannot be made for the first time
any other personal property received by the offender in trust or on commission, or
on appeal. It is true that the gravamen of the crime of estafa under Article 315,
for administration, or under any other obligation involving the duty to make delivery
paragraph 1, subparagraph (b) of the RPC is the appropriation or conversion of money
of or to return the same, even though such obligation be totally or partially
or property received to the prejudice of the owner6 and that the time of occurrence
guaranteed by a bond; or by denying having received such money, goods, or other
is not a material ingredient of the crime, hence, the exclusion of the period and the
property; x x x
wrong date of the occurrence of the crime, as reflected in the Information, do not
make the latter fatally defective. The CA ruled:
The elements of estafa with abuse of confidence are as follows: (a) that money, goods
or other personal property is received by the offender in trust, or on commission, or
x x x An information is legally viable as long as it distinctly states the statutory
for administration, or under any other obligation involving the duty to make delivery
designation of the offense and the acts or omissions constitutive thereof. Then
Section 6, Rule 110 of the Rules of Court provides that a complaint or information is of, or to return the same; (b) that there be misappropriation or conversion of such
money or property by the offender or denial on his part of such receipt; (c) that such
sufficient if it states the name of the accused;
misappropriation or conversion or denial is to the prejudice of another; and (d) that
there is a demand made by the offended party on the offender. 8
the designation of the offense by the statute; the acts or omissions complained of as
constituting the offense; the name of the offended party; the approximate time of
Petitioner argues that the last element, which is, that there is a demand by the
the commission of the offense, and the place wherein the offense was committed. In
offended party on the offender, was not proved. This Court disagrees. In his
the case at bar, a reading of the subject Information shows compliance with the
foregoing rule. That the time of the commission of the offense was stated as " on or testimony, private complainant narrated how he was able to locate petitioner after
almost two (2) months from the time he gave the pieces of jewelry and asked
about the fifth (5th) day of July, 1991" is not likewise fatal to the prosecution's cause
petitioner about the same items with the latter promising to pay them. Thus:
considering that Section 11 of the same Rule requires a statement of the precise time
only when the same is a material ingredient of the offense. The gravamen of the
crime of estafa under Article 315, paragraph 1 (b) of the Revised Penal Code (RPC) is PROS. MARTINEZ
the appropriation or conversion of money or property received to the prejudice of
the offender. Thus, aside from the fact that the date of the commission thereof is not q Now, Mr. Witness, this was executed on 2 May 1991, and this transaction could
an essential element of the crime herein charged, the failure of the prosecution to have been finished on 5 July 1991, the question is what happens (sic) when the
specify the exact date does not render the Information ipso facto defective. deadline came?
a I went looking for him, sir. a No, sir.9

q For whom? No specific type of proof is required to show that there was demand.10 Demand need
not even be formal; it may be verbal. 11 The specific word "demand" need not even
a Lito Corpuz, sir. be used to show that it has indeed been made upon the person charged, since even
a mere query as to the whereabouts of the money [in this case, property], would be
q Were you able to look (sic) for him? tantamount to a demand.12 As expounded in Asejo v. People:13

a I looked for him for a week, sir. With regard to the necessity of demand, we agree with the CA that demand under
this kind of estafa need not be formal or written. The appellate court observed that
the law is silent with regard to the form of demand in estafa under Art. 315 1(b), thus:
q Did you know his residence?

When the law does not qualify, We should not qualify. Should a written demand be
a Yes, sir.
necessary, the law would have stated so. Otherwise, the word "demand" should be
interpreted in its general meaning as to include both written and oral demand. Thus,
q Did you go there?
the failure of the prosecution to present a written demand as evidence is not fatal.

a Yes, sir.
In Tubb v. People, where the complainant merely verbally inquired about the money
entrusted to the accused, we held that the query was tantamount to a demand, thus:
q Did you find him?
x x x [T]he law does not require a demand as a condition precedent to the existence
a No, sir. of the crime of embezzlement. It so happens only that failure to account, upon
demand for funds or property held in trust, is circumstantial evidence of
q Were you able to talk to him since 5 July 1991? misappropriation. The same way, however, be established by other proof, such as
that introduced in the case at bar.14
a I talked to him, sir.
In view of the foregoing and based on the records, the prosecution was able to prove
q How many times? the existence of all the elements of the crime. Private complainant gave petitioner
the pieces of jewelry in trust, or on commission basis, as shown in the receipt dated
a Two times, sir. May 2, 1991 with an obligation to sell or return the same within sixty (60) days, if
unsold. There was misappropriation when petitioner failed to remit the proceeds of
q What did you talk (sic) to him? those pieces of jewelry sold, or if no sale took place, failed to return the same pieces
of jewelry within or after the agreed period despite demand from the private
complainant, to the prejudice of the latter.
a About the items I gave to (sic) him, sir.

Anent the credibility of the prosecution's sole witness, which is questioned by

q Referring to Exhibit A-2?
a Yes, sir, and according to him he will take his obligation and I asked him where the
items are and he promised me that he will pay these amount, sir.
q Up to this time that you were here, were you able to collect from him partially or
full?
petitioner, the same is unmeritorious. Settled is the rule that in assessing the
credibility of witnesses, this Court gives great respect to the evaluation of the trial
court for it had the unique opportunity to observe the demeanor of witnesses and
their deportment on the witness stand, an opportunity denied the appellate courts,
which merely rely on the records of the case.15 The assessment by the trial court is
even conclusive and binding if not tainted with arbitrariness or oversight of some fact
or circumstance of weight and influence, especially when such finding is affirmed by
the CA.16 Truth is established not by the number of witnesses, but by the quality of
their testimonies, for in determining the value and credibility of evidence, the
witnesses are to be weighed not numbered.17
As regards the penalty, while this Court's Third Division was deliberating on this case,
the question of the continued validity of imposing on persons convicted of crimes
involving property came up. The legislature apparently pegged these penalties to the
value of the money and property in 1930 when it enacted the Revised Penal Code.
Since the members of the division reached no unanimity on this question and since
the issues are of first impression, they decided to refer the case to the Court en banc
for consideration and resolution. Thus, several amici curiae were invited at the
behest of the Court to give their academic opinions on the matter. Among those that
graciously complied were Dean Jose Manuel Diokno, Dean Sedfrey M. Candelaria,
Professor Alfredo F. Tadiar, the Senate President, and the Speaker of the House of
Representatives. The parties were later heard on oral arguments before the Court en
banc, with Atty. Mario L. Bautista appearing as counsel de oficio of the petitioner.
After a thorough consideration of the arguments presented on the matter, this Court
finds the following:
There seems to be a perceived injustice brought about by the range of penalties that
the courts continue to impose on crimes against property committed today, based
on the amount of damage measured by the value of money eighty years ago in 1932.
However, this Court cannot modify the said range of penalties because that would
constitute judicial legislation. What the legislature's perceived failure in amending
the penalties provided for in the said crimes cannot be remedied through this Court's
decisions, as that would be encroaching upon the power of another branch of the
government. This, however, does not render the whole situation without any
remedy. It can be appropriately presumed that the framers of the Revised Penal Code
(RPC) had anticipated this matter by including Article 5, which reads:
ART. 5. Duty of the court in connection with acts which should be repressed but which
are not covered by the law, and in cases of excessive penalties. - Whenever a court
has knowledge of any act which it may deem proper to repress and which is not
punishable by law, it shall render the proper decision, and shall report to the Chief
Executive, through the Department of Justice, the reasons which induce the court to
believe that said act should be made the subject of penal legislation.
In the same way, the court shall submit to the Chief Executive, through the
Department of Justice, such statement as may be deemed proper, without
suspending the execution of the sentence, when a strict enforcement of the
provisions of this Code would result in the imposition of a clearly excessive penalty,
taking into consideration the degree of malice and the injury caused by the offense. 18
The first paragraph of the above provision clearly states that for acts bourne out of a
case which is not punishable by law and the court finds it proper to repress, the
remedy is to render the proper decision and thereafter, report to the Chief Executive,
through the Department of Justice, the reasons why the same act should be the
subject of penal legislation. The premise here is that a deplorable act is present but
is not the subject of any penal legislation, thus, the court is tasked to inform the Chief
Executive of the need to make that act punishable by law through legislation. The
second paragraph is similar to the first except for the situation wherein the act is
already punishable by law but the corresponding penalty is deemed by the court as
excessive. The remedy therefore, as in the first paragraph is not to suspend the
execution of the sentence but to submit to the Chief Executive the reasons why the
court considers the said penalty to be non-commensurate with the act committed.
Again, the court is tasked to inform the Chief Executive, this time, of the need for a
legislation to provide the proper penalty.
In his book, Commentaries on the Revised Penal Code,19 Guillermo B. Guevara opined
that in Article 5, the duty of the court is merely to report to the Chief Executive, with
a recommendation for an amendment or modification of the legal provisions which
it believes to be harsh. Thus:
This provision is based under the legal maxim "nullum crimen, nulla poena sige lege,"
that is, that there can exist no punishable act except those previously and specifically
provided for by penal statute.
No matter how reprehensible an act is, if the law-making body does not deem it
necessary to prohibit its perpetration with penal sanction, the Court of justice will be
entirely powerless to punish such act.
Under the provisions of this article the Court cannot suspend the execution of a
sentence on the ground that the strict enforcement of the provisions of this Code
would cause excessive or harsh penalty. All that the Court could do in such
eventuality is to report the matter to the Chief Executive with a recommendation for
an amendment or modification of the legal provisions which it believes to be harsh. 20
Anent the non-suspension of the execution of the sentence, retired Chief Justice
Ramon C. Aquino and retired Associate Justice Carolina C. Griño-Aquino, in their
book, The Revised Penal Code,21 echoed the above-cited commentary, thus:
The second paragraph of Art. 5 is an application of the humanitarian principle that
justice must be tempered with mercy. Generally, the courts have nothing to do with
the wisdom or justness of the penalties fixed by law. "Whether or not the penalties
prescribed by law upon conviction of violations of particular statutes are too severe
or are not severe enough, are questions as to which commentators on the law may
fairly differ; but it is the duty of the courts to enforce the will of the legislator in all 2. The penalty of prision correccional in its medium and maximum periods,
cases unless it clearly appears that a given penalty falls within the prohibited class of if the value of the thing stolen is more than 6,000 pesos but does not exceed
excessive fines or cruel and unusual punishment." A petition for clemency should be 12,000 pesos.
addressed to the Chief Executive.22
3. The penalty of prision correccional in its minimum and medium periods,
There is an opinion that the penalties provided for in crimes against property be if the value of the property stolen is more than 200 pesos but does not
based on the current inflation rate or at the ratio of ₱1.00 is equal to ₱100.00 . exceed 6,000 pesos.
However, it would be dangerous as this would result in uncertainties, as opposed to
the definite imposition of the penalties. It must be remembered that the economy 4. Arresto mayor in its medium period to prision correccional in its minimum
fluctuates and if the proposed imposition of the penalties in crimes against property period, if the value of the property stolen is over 50 pesos but does not
be adopted, the penalties will not cease to change, thus, making the RPC, a self- exceed 200 pesos.
amending law. Had the framers of the RPC intended that to be so, it should have
provided the same, instead, it included the earlier cited Article 5 as a remedy. It is 5. Arresto mayor to its full extent, if such value is over 5 pesos but does not
also improper to presume why the present legislature has not made any moves to exceed 50 pesos.
amend the subject penalties in order to conform with the present times. For all we
know, the legislature intends to retain the same penalties in order to deter the
6. Arresto mayor in its minimum and medium periods, if such value does not
further commission of those punishable acts which have increased tremendously
exceed 5 pesos.
through the years. In fact, in recent moves of the legislature, it is apparent that it
aims to broaden the coverage of those who violate penal laws. In the crime of
7. Arresto menor or a fine not exceeding 200 pesos, if the theft is committed
Plunder, from its original minimum amount of ₱100,000,000.00 plundered, the
under the circumstances enumerated in paragraph 3 of the next preceding
legislature lowered it to ₱50,000,000.00. In the same way, the legislature lowered
article and the value of the thing stolen does not exceed 5 pesos. If such
the threshold amount upon which the Anti-Money Laundering Act may apply, from
value exceeds said amount, the provision of any of the five preceding
₱1,000,000.00 to ₱500,000.00.
subdivisions shall be made applicable.
It is also worth noting that in the crimes of Theft and Estafa, the present penalties do
8. Arresto menor in its minimum period or a fine not exceeding 50 pesos,
not seem to be excessive compared to the proposed imposition of their
when the value of the thing stolen is not over 5 pesos, and the offender shall
corresponding penalties. In Theft, the provisions state that:
have acted under the impulse of hunger, poverty, or the difficulty of earning
a livelihood for the support of himself or his family.
Art. 309. Penalties. — Any person guilty of theft shall be punished by:
In a case wherein the value of the thing stolen is ₱6,000.00, the above-provision
1. The penalty of prision mayor in its minimum and medium periods, if the
states that the penalty is prision correccional in its minimum and medium periods (6
value of the thing stolen is more than 12,000 pesos but does not exceed
months and 1 day to 4 years and 2 months). Applying the proposal, if the value of the
22,000 pesos, but if the value of the thing stolen exceeds the latter amount
thing stolen is ₱6,000.00, the penalty is imprisonment of arresto mayor in its medium
the penalty shall be the maximum period of the one prescribed in this
period to prision correccional minimum period (2 months and 1 day to 2 years and 4
paragraph, and one year for each additional ten thousand pesos, but the
months). It would seem that under the present law, the penalty imposed is almost
total of the penalty which may be imposed shall not exceed twenty years. In
the same as the penalty proposed. In fact, after the application of the Indeterminate
such cases, and in connection with the accessory penalties which may be
Sentence Law under the existing law, the minimum penalty is still lowered by one
imposed and for the purpose of the other provisions of this Code, the
degree; hence, the minimum penalty is arresto mayor in its medium period to
penalty shall be termed prision mayor or reclusion temporal, as the case
maximum period (2 months and 1 day to 6 months), making the offender qualified
may be.
for pardon or parole after serving the said minimum period and may even apply for
probation. Moreover, under the proposal, the minimum penalty after applying the
Indeterminate Sentence Law is arresto menor in its maximum period to arresto
mayor in its minimum period (21 days to 2 months) is not too far from the minimum
period under the existing law. Thus, it would seem that the present penalty imposed
under the law is not at all excessive. The same is also true in the crime of Estafa.23
Moreover, if we apply the ratio of 1:100, as suggested to the value of the thing stolen
in the crime of Theft and the damage caused in the crime of Estafa, the gap between
the minimum and the maximum amounts, which is the basis of determining the
proper penalty to be imposed, would be too wide and the penalty imposable would
no longer be commensurate to the act committed and the value of the thing stolen
or the damage caused:
I. Article 309, or the penalties for the crime of Theft, the value would be modified but
the penalties are not changed:
1. ₱12,000.00 to ₱22,000.00 will become ₱1,200,000.00 to ₱2,200,000.00,
punished by prision mayor minimum to prision mayor medium (6 years and
1 day to 10 years).
2. ₱6,000.00 to ₱12,000.00 will become ₱600,000.00 to ₱1,200,000.00,
punished by prision correccional medium and to prision correccional
maximum (2 years, 4 months and 1 day to 6 years).24
3. ₱200.00 to ₱6,000.00 will become ₱20,000.00 to ₱600,000.00, punishable
by prision correccional minimum to prision correccional medium (6 months
and 1 day to 4 years and 2 months).
4. ₱50.00 to ₱200.00 will become ₱5,000.00 to ₱20,000.00, punishable by
arresto mayor medium to prision correccional minimum (2 months and 1
day to 2 years and 4 months).
5. ₱5.00 to ₱50.00 will become ₱500.00 to ₱5,000.00, punishable by arresto
mayor (1 month and 1 day to 6 months).
6. ₱5.00 will become ₱500.00, punishable by arresto mayor minimum to
arresto mayor medium.
x x x x.
II. Article 315, or the penalties for the crime of Estafa, the value would also be
modified but the penalties are not changed, as follows:
1st. ₱12,000.00 to ₱22,000.00, will become ₱1,200,000.00 to
₱2,200,000.00, punishable by prision correccional maximum to prision
mayor minimum (4 years, 2 months and 1 day to 8 years).25
2nd. ₱6,000.00 to ₱12,000.00 will become ₱600,000.00 to ₱1,200,000.00,
punishable by prision correccional minimum to prision correccional medium
(6 months and 1 day to 4 years and 2 months).26
3rd. ₱200.00 to ₱6,000.00 will become ₱20,000.00 to ₱600,000.00,
punishable by arresto mayor maximum to prision correccional minimum (4
months and 1 day to 2 years and 4 months).
4th. ₱200.00 will become ₱20,000.00, punishable by arresto mayor
maximum (4 months and 1 day to 6 months).
An argument raised by Dean Jose Manuel I. Diokno, one of our esteemed amici
curiae, is that the incremental penalty provided under Article 315 of the RPC violates
the Equal Protection Clause.
The equal protection clause requires equality among equals, which is determined
according to a valid classification. The test developed by jurisprudence here and
yonder is that of reasonableness,27 which has four requisites:
(1) The classification rests on substantial distinctions;
(2) It is germane to the purposes of the law;
(3) It is not limited to existing conditions only; and
(4) It applies equally to all members of the same class. 28
According to Dean Diokno, the Incremental Penalty Rule (IPR) does not rest on
substantial distinctions as ₱10,000.00 may have been substantial in the past, but it is
not so today, which violates the first requisite; the IPR was devised so that those who
commit estafa involving higher amounts would receive heavier penalties; however,
this is no longer achieved, because a person who steals ₱142,000.00 would receive
the same penalty as someone who steals hundreds of millions, which violates the
second requisite; and, the IPR violates requisite no. 3, considering that the IPR is
limited to existing conditions at the time the law was promulgated, conditions that
no longer exist today.
Assuming that the Court submits to the argument of Dean Diokno and declares the JUSTICE PERALTA:
incremental penalty in Article 315 unconstitutional for violating the equal protection
clause, what then is the penalty that should be applied in case the amount of the For every One Hundred Thousand (₱100,000.00) Pesos in excess of Twenty-Two
thing subject matter of the crime exceeds ₱22,000.00? It seems that the proposition Thousand (₱22,000.00) Pesos you were suggesting an additional penalty of one (1)
poses more questions than answers, which leads us even more to conclude that the year, did I get you right?
appropriate remedy is to refer these matters to Congress for them to exercise their
inherent power to legislate laws. DEAN DIOKNO:

Even Dean Diokno was of the opinion that if the Court declares the IPR Yes, Your Honor, that is, if the court will take the route of statutory interpretation.
unconstitutional, the remedy is to go to Congress. Thus:
JUSTICE PERALTA:
xxxx
Ah ...
JUSTICE PERALTA:
DEAN DIOKNO:
Now, your position is to declare that the incremental penalty should be struck down
as unconstitutional because it is absurd.
If the Court will say that they can go beyond the literal wording of the law...

DEAN DIOKNO:
JUSTICE PERALTA:

Absurd, it violates equal protection, Your Honor, and cruel and unusual punishment.
But if we de ... (interrupted)

JUSTICE PERALTA:
DEAN DIOKNO:

Then what will be the penalty that we are going to impose if the amount is more than
....then....
Twenty-Two Thousand (₱22,000.00) Pesos.
JUSTICE PERALTA:
DEAN DIOKNO:
Ah, yeah. But if we declare the incremental penalty as unsconstitutional, the court
Well, that would be for Congress to ... if this Court will declare the incremental
cannot fix the amount ...
penalty rule unconstitutional, then that would ... the void should be filled by
Congress.
DEAN DIOKNO:
JUSTICE PERALTA:
No, Your Honor.
But in your presentation, you were fixing the amount at One Hundred Thousand
JUSTICE PERALTA:
(₱100,000.00) Pesos ...

... as the equivalent of one, as an incremental penalty in excess of Twenty-Two

DEAN DIOKNO:
Thousand (₱22,000.00) Pesos.
Well, my presen ... (interrupted)
DEAN DIOKNO:
No, Your Honor. DEAN DIOKNO:

JUSTICE PERALTA: Thank you.

The Court cannot do that. x x x x29

DEAN DIOKNO: Dean Diokno also contends that Article 315 of the Revised Penal Code constitutes
cruel and unusual punishment. Citing Solem v. Helm, 30 Dean Diokno avers that the
Could not be. United States Federal Supreme Court has expanded the application of a similar
Constitutional provision prohibiting cruel and unusual punishment, to the duration
JUSTICE PERALTA: of the penalty, and not just its form. The court therein ruled that three things must
be done to decide whether a sentence is proportional to a specific crime, viz.; (1)
Compare the nature and gravity of the offense, and the harshness of the penalty; (2)
The only remedy is to go to Congress...
Compare the sentences imposed on other criminals in the same jurisdiction, i.e.,
whether more serious crimes are subject to the same penalty or to less serious
DEAN DIOKNO:
penalties; and (3) Compare the sentences imposed for commission of the same crime
in other jurisdictions.
Yes, Your Honor.
However, the case of Solem v. Helm cannot be applied in the present case, because
JUSTICE PERALTA: in Solem what respondent therein deemed cruel was the penalty imposed by the
state court of South Dakota after it took into account the latter’s recidivist statute
... and determine the value or the amount. and not the original penalty for uttering a "no account" check. Normally, the
maximum punishment for the crime would have been five years imprisonment and a
DEAN DIOKNO: $5,000.00 fine. Nonetheless, respondent was sentenced to life imprisonment
without the possibility of parole under South Dakota’s recidivist statute because of
Yes, Your Honor. his six prior felony convictions. Surely, the factual antecedents of Solem are different
from the present controversy.
JUSTICE PERALTA:
With respect to the crime of Qualified Theft, however, it is true that the imposable
That will be equivalent to the incremental penalty of one (1) year in excess of Twenty- penalty for the offense is high. Nevertheless, the rationale for the imposition of a
Two Thousand (₱22,000.00) Pesos. higher penalty against a domestic servant is the fact that in the commission of the
crime, the helper will essentially gravely abuse the trust and confidence reposed
upon her by her employer. After accepting and allowing the helper to be a member
DEAN DIOKNO:
of the household, thus entrusting upon such person the protection and safekeeping
of the employer’s loved ones and properties, a subsequent betrayal of that trust is so
Yes, Your Honor. repulsive as to warrant the necessity of imposing a higher penalty to deter the
commission of such wrongful acts.
JUSTICE PERALTA:
There are other crimes where the penalty of fine and/or imprisonment are
The amount in excess of Twenty-Two Thousand (₱22,000.00) Pesos. dependent on the subject matter of the crime and which, by adopting the proposal,
may create serious implications. For example, in the crime of Malversation, the
Thank you, Dean. penalty imposed depends on the amount of the money malversed by the public
official, thus:
Art. 217. Malversation of public funds or property; Presumption of malversation. —
Any public officer who, by reason of the duties of his office, is accountable for public
funds or property, shall appropriate the same or shall take or misappropriate or shall
consent, through abandonment or negligence, shall permit any other person to take
such public funds, or property, wholly or partially, or shall otherwise be guilty of the
misappropriation or malversation of such funds or property, shall suffer:
1. The penalty of prision correccional in its medium and maximum periods,
if the amount involved in the misappropriation or malversation does not
exceed two hundred pesos.
2. The penalty of prision mayor in its minimum and medium periods, if the
amount involved is more than two hundred pesos but does not exceed six
thousand pesos.
3. The penalty of prision mayor in its maximum period to reclusion temporal
in its minimum period, if the amount involved is more than six thousand
pesos but is less than twelve thousand pesos.
4. The penalty of reclusion temporal, in its medium and maximum periods,
if the amount involved is more than twelve thousand pesos but is less than
twenty-two thousand pesos. If the amount exceeds the latter, the penalty
shall be reclusion temporal in its maximum period to reclusion perpetua.
In all cases, persons guilty of malversation shall also suffer the penalty of perpetual
special disqualification and a fine equal to the amount of the funds malversed or
equal to the total value of the property embezzled.
The failure of a public officer to have duly forthcoming any public funds or property
with which he is chargeable, upon demand by any duly authorized officer, shall be
prima facie evidence that he has put such missing funds or property to personal use.
The above-provisions contemplate a situation wherein the Government loses money
due to the unlawful acts of the offender. Thus, following the proposal, if the amount
malversed is ₱200.00 (under the existing law), the amount now becomes ₱20,000.00
and the penalty is prision correccional in its medium and maximum periods (2 years
4 months and 1 day to 6 years). The penalty may not be commensurate to the act of
embezzlement of ₱20,000.00 compared to the acts committed by public officials
punishable by a special law, i.e., Republic Act No. 3019 or the Anti-Graft and Corrupt
Practices Act, specifically Section 3,31 wherein the injury caused to the government is
not generally defined by any monetary amount, the penalty (6 years and 1 month to
15 years)32 under the Anti-Graft Law will now become higher. This should not be the
case, because in the crime of malversation, the public official takes advantage of his
public position to embezzle the fund or property of the government entrusted to him.
The said inequity is also apparent in the crime of Robbery with force upon things
(inhabited or uninhabited) where the value of the thing unlawfully taken and the act
of unlawful entry are the bases of the penalty imposable, and also, in Malicious
Mischief, where the penalty of imprisonment or fine is dependent on the cost of the
damage caused.
In Robbery with force upon things (inhabited or uninhabited), if we increase the value
of the thing unlawfully taken, as proposed in the ponencia, the sole basis of the
penalty will now be the value of the thing unlawfully taken and no longer the element
of force employed in entering the premises. It may likewise cause an inequity
between the crime of Qualified Trespass to Dwelling under Article 280, and this kind
of robbery because the former is punishable by prision correccional in its medium
and maximum periods (2 years, 4 months and 1 day to 6 years) and a fine not
exceeding ₱1,000.00 (₱100,000.00 now if the ratio is 1:100) where entrance to the
premises is with violence or intimidation, which is the main justification of the
penalty. Whereas in the crime of Robbery with force upon things, it is punished with
a penalty of prision mayor (6 years and 1 day to 12 years) if the intruder is unarmed
without the penalty of Fine despite the fact that it is not merely the illegal entry that
is the basis of the penalty but likewise the unlawful taking.
Furthermore, in the crime of Other Mischiefs under Article 329, the highest penalty
that can be imposed is arresto mayor in its medium and maximum periods (2 months
and 1 day to 6 months) if the value of the damage caused exceeds ₱1,000.00, but
under the proposal, the value of the damage will now become ₱100,000.00 (1:100),
and still punishable by arresto mayor (1 month and 1 day to 6 months). And, if the
value of the damaged property does not exceed ₱200.00, the penalty is arresto
menor or a fine of not less than the value of the damage caused and not more than
₱200.00, if the amount involved does not exceed ₱200.00 or cannot be estimated.
Under the proposal, ₱200.00 will now become ₱20,000.00, which simply means that
the fine of ₱200.00 under the existing law will now become ₱20,000.00. The amount
of Fine under this situation will now become excessive and afflictive in nature despite
the fact that the offense is categorized as a light felony penalized with a light penalty
under Article 26 of the RPC.33 Unless we also amend Article 26 of the RPC, there will
be grave implications on the penalty of Fine, but changing the same through Court
decision, either expressly or impliedly, may not be legally and constitutionally
feasible.
There are other crimes against property and swindling in the RPC that may also be
affected by the proposal, such as those that impose imprisonment and/or Fine as a
penalty based on the value of the damage caused, to wit: Article 311 (Theft of the
property of the National Library and National Museum), Article 312 (Occupation of
real property or usurpation of real rights in property), Article 313 (Altering
boundaries or landmarks), Article 316 (Other forms of swindling), Article 317
(Swindling a minor), Article 318 (Other deceits), Article 328 (Special cases of malicious
mischief) and Article 331 (Destroying or damaging statues, public monuments or
paintings). Other crimes that impose Fine as a penalty will also be affected, such as:
Article 213 (Frauds against the public treasury and similar offenses), Article 215
(Prohibited Transactions),
Article 216 (Possession of prohibited interest by a public officer), Article 218 (Failure
of accountable officer to render accounts), Article 219 (Failure of a responsible public
officer to render accounts before leaving the country).
In addition, the proposal will not only affect crimes under the RPC. It will also affect
crimes which are punishable by special penal laws, such as Illegal Logging or Violation
of Section 68 of Presidential Decree No. 705, as amended. 34The law treats cutting,
gathering, collecting and possessing timber or other forest products without license
as an offense as grave as and equivalent to the felony of qualified theft. 35 Under the
law, the offender shall be punished with the penalties imposed under Articles 309
and 31036 of the Revised Penal Code, which means that the penalty imposable for the
offense is, again, based on the value of the timber or forest products involved in the
offense. Now, if we accept the said proposal in the crime of Theft, will this particular
crime of Illegal Logging be amended also in so far as the penalty is concerned because
the penalty is dependent on Articles 309 and 310 of the RPC? The answer is in the
negative because the soundness of this particular law is not in question.
With the numerous crimes defined and penalized under the Revised Penal Code and
Special Laws, and other related provisions of these laws affected by the proposal, a
thorough study is needed to determine its effectivity and necessity. There may be
some provisions of the law that should be amended; nevertheless, this Court is in no
position to conclude as to the intentions of the framers of the Revised Penal Code by
merely making a study of the applicability of the penalties imposable in the present
times. Such is not within the competence of the Court but of the Legislature which is
empowered to conduct public hearings on the matter, consult legal luminaries and
who, after due proceedings, can decide whether or not to amend or to revise the
questioned law or other laws, or even create a new legislation which will adopt to
the times.
Admittedly, Congress is aware that there is an urgent need to amend the Revised
Penal Code. During the oral arguments, counsel for the Senate informed the Court
that at present, fifty-six (56) bills are now pending in the Senate seeking to amend
the Revised Penal Code,37 each one proposing much needed change and updates to
archaic laws that were promulgated decades ago when the political, socio-economic,
and cultural settings were far different from today’s conditions.
Verily, the primordial duty of the Court is merely to apply the law in such a way that
it shall not usurp legislative powers by judicial legislation and that in the course of
such application or construction, it should not make or supervise legislation, or under
the guise of interpretation, modify, revise, amend, distort, remodel, or rewrite the
law, or give the law a construction which is repugnant to its terms.38 The Court should
apply the law in a manner that would give effect to their letter and spirit, especially
when the law is clear as to its intent and purpose. Succinctly put, the Court should
shy away from encroaching upon the primary function of a co-equal branch of the
Government; otherwise, this would lead to an inexcusable breach of the doctrine of
separation of powers by means of judicial legislation.
Moreover, it is to be noted that civil indemnity is, technically, not a penalty or a Fine;
hence, it can be increased by the Court when appropriate. Article 2206 of the Civil
Code provides:
Art. 2206. The amount of damages for death caused by a crime or quasi-delict shall
be at least three thousand pesos, even though there may have been mitigating
circumstances. In addition:
(1) The defendant shall be liable for the loss of the earning capacity of the
deceased, and the indemnity shall be paid to the heirs of the latter; such
indemnity shall in every case be assessed and awarded by the court, unless
the deceased on account of permanent physical disability not caused by the
defendant, had no earning capacity at the time of his death;
(2) If the deceased was obliged to give support according to the provisions
of Article 291, the recipient who is not an heir called to the decedent's
inheritance by the law of testate or intestate succession, may demand
support from the person causing the death, for a period not exceeding five
years, the exact duration to be fixed by the court;
(3) The spouse, legitimate and illegitimate descendants and ascendants of
the deceased may demand moral damages for mental anguish by reason of
the death of the deceased.
In our jurisdiction, civil indemnity is awarded to the offended party as a kind of
monetary restitution or compensation to the victim for the damage or infraction that
was done to the latter by the accused, which in a sense only covers the civil aspect.
Precisely, it is civil indemnity. Thus, in a crime where a person dies, in addition to the
penalty of imprisonment imposed to the offender, the accused is also ordered to pay
the victim a sum of money as restitution. Clearly, this award of civil indemnity due to
the death of the victim could not be contemplated as akin to the value of a thing that
is unlawfully taken which is the basis in the imposition of the proper penalty in certain
crimes. Thus, the reasoning in increasing the value of civil indemnity awarded in some
offense cannot be the same reasoning that would sustain the adoption of the
suggested ratio. Also, it is apparent from Article 2206 that the law only imposes a
minimum amount for awards of civil indemnity, which is ₱3,000.00. The law did not
provide for a ceiling. Thus, although the minimum amount for the award cannot be
changed, increasing the amount awarded as civil indemnity can be validly modified
and increased when the present circumstance warrants it. Corollarily, moral damages
under Article 222039 of the Civil Code also does not fix the amount of damages that
can be awarded. It is discretionary upon the court, depending on the mental anguish
or the suffering of the private offended party. The amount of moral damages can, in
relation to civil indemnity, be adjusted so long as it does not exceed the award of civil
indemnity.
In addition, some may view the penalty provided by law for the offense committed
as tantamount to cruel punishment. However, all penalties are generally harsh, being
punitive in nature. Whether or not they are excessive or amount to cruel punishment
is a matter that should be left to lawmakers. It is the prerogative of the courts to
apply the law, especially when they are clear and not subject to any other
interpretation than that which is plainly written.
Similar to the argument of Dean Diokno, one of Justice Antonio Carpio’s opinions is
that the incremental penalty provision should be declared unconstitutional and that
the courts should only impose the penalty corresponding to the amount of
₱22,000.00, regardless if the actual amount involved exceeds ₱22,000.00. As
suggested, however, from now until the law is properly amended by Congress, all
crimes of Estafa will no longer be punished by the appropriate penalty. A conundrum
in the regular course of criminal justice would occur when every accused convicted
of the crime of estafa will be meted penalties different from the proper penalty that
should be imposed. Such drastic twist in the application of the law has no legal basis
and directly runs counter to what the law provides.
It should be noted that the death penalty was reintroduced in the dispensation of
criminal justice by the Ramos Administration by virtue of Republic Act No. 7659 40 in
December 1993. The said law has been questioned before this Court. There is,
arguably, no punishment more cruel than that of death. Yet still, from the time the
death penalty was re-imposed until its lifting in June 2006 by Republic Act No.
9346,41 the Court did not impede the imposition of the death penalty on the ground
that it is a "cruel punishment" within the purview of Section 19 (1), 42 Article III of the
Constitution. Ultimately, it was through an act of Congress suspending the imposition
of the death penalty that led to its non-imposition and not via the intervention of the
Court.
Even if the imposable penalty amounts to cruel punishment, the Court cannot declare
the provision of the law from which the proper penalty emanates unconstitutional in
the present action. Not only is it violative of due process, considering that the State
and the concerned parties were not given the opportunity to comment on the subject
matter, it is settled that the constitutionality of a statute cannot be attacked
collaterally because constitutionality issues must be pleaded directly and not
collaterally,43 more so in the present controversy wherein the issues never touched
upon the constitutionality of any of the provisions of the Revised Penal Code.
Besides, it has long been held that the prohibition of cruel and unusual punishments
is generally aimed at the form or character of the punishment rather than its severity
in respect of duration or amount, and applies to punishments which public sentiment
has regarded as cruel or obsolete, for instance, those inflicted at the whipping post,
or in the pillory, burning at the stake, breaking on the wheel, disemboweling, and the
like. Fine and imprisonment would not thus be within the prohibition. 44
It takes more than merely being harsh, excessive, out of proportion, or severe for a
penalty to be obnoxious to the Constitution. The fact that the punishment authorized
by the statute is severe does not make it cruel and unusual. Expressed in other terms,
it has been held that to come under the ban, the punishment must be "flagrantly and
plainly oppressive," "wholly disproportionate to the nature of the offense as to shock
the moral sense of the community."45
Cruel as it may be, as discussed above, it is for the Congress to amend the law and
adapt it to our modern time.
The solution to the present controversy could not be solved by merely adjusting the
questioned monetary values to the present value of money based only on the current
inflation rate. There are other factors and variables that need to be taken into
consideration, researched, and deliberated upon before the said values could be
accurately and properly adjusted. The effects on the society, the injured party, the
accused, its socio-economic impact, and the likes must be painstakingly evaluated
and weighed upon in order to arrive at a wholistic change that all of us believe should
be made to our existing law. Dejectedly, the Court is ill-equipped, has no resources,
and lacks sufficient personnel to conduct public hearings and sponsor studies and
surveys to validly effect these changes in our Revised Penal Code. This function clearly
and appropriately belongs to Congress. Even Professor Tadiar concedes to this
conclusion, to wit:
xxxx
JUSTICE PERALTA: JUSTICE PERALTA:

Yeah, Just one question. You are suggesting that in order to determine the value of Yeah, but ...
Peso you have to take into consideration several factors.
PROFESSOR TADIAR:
PROFESSOR TADIAR:
And I don’t think it is within the power of the Supreme Court to pass upon and peg
Yes. the value to One Hundred (₱100.00) Pesos to ...

JUSTICE PERALTA: JUSTICE PERALTA:

Per capita income. Yeah.

PROFESSOR TADIAR: PROFESSOR TADIAR:

Per capita income. ... One (₱1.00.00) Peso in 1930.

JUSTICE PERALTA: JUSTICE PERALTA:

Consumer price index. That is legislative in nature.

PROFESSOR TADIAR: PROFESSOR TADIAR:

Yeah. That is my position that the Supreme Court ...

JUSTICE PERALTA: JUSTICE PERALTA:

Inflation ... Yeah, okay.

PROFESSOR TADIAR: PROFESSOR TADIAR:

Yes. ... has no power to utilize the power of judicial review to in order to adjust, to make
the adjustment that is a power that belongs to the legislature.
JUSTICE PERALTA:
JUSTICE PERALTA:
... and so on. Is the Supreme Court equipped to determine those factors?
Thank you, Professor.
PROFESSOR TADIAR:
PROFESSOR TADIAR:
There are many ways by which the value of the Philippine Peso can be determined
utilizing all of those economic terms. Thank you.46
Finally, the opinion advanced by Chief Justice Maria Lourdes P. A. Sereno echoes the
view that the role of the Court is not merely to dispense justice, but also the active
duty to prevent injustice. Thus, in order to prevent injustice in the present
controversy, the Court should not impose an obsolete penalty pegged eighty three
years ago, but consider the proposed ratio of 1:100 as simply compensating for
inflation. Furthermore, the Court has in the past taken into consideration "changed
conditions" or "significant changes in circumstances" in its decisions.
Similarly, the Chief Justice is of the view that the Court is not delving into the validity
of the substance of a statute. The issue is no different from the Court’s adjustment
of indemnity in crimes against persons, which the Court had previously adjusted in
light of current times, like in the case of People v. Pantoja.47 Besides, Article 10 of the
Civil Code mandates a presumption that the lawmaking body intended right and
justice to prevail.
With due respect to the opinions and proposals advanced by the Chief Justice and my
Colleagues, all the proposals ultimately lead to prohibited judicial legislation. Short
of being repetitious and as extensively discussed above, it is truly beyond the powers
of the Court to legislate laws, such immense power belongs to Congress and the Court
should refrain from crossing this clear-cut divide. With regard to civil indemnity, as
elucidated before, this refers to civil liability which is awarded to the offended party
as a kind of monetary restitution. It is truly based on the value of money. The same
cannot be said on penalties because, as earlier stated, penalties are not only based
on the value of money, but on several other factors. Further, since the law is silent as
to the maximum amount that can be awarded and only pegged the minimum sum,
increasing the amount granted as civil indemnity is not proscribed. Thus, it can be
adjusted in light of current conditions.
Now, with regard to the penalty imposed in the present case, the CA modified the
ruling of the RTC. The RTC imposed the indeterminate penalty of four (4) years and
two (2) months of prision correccional in its medium period, as minimum, to fourteen
(14) years and eight (8) months of reclusion temporal in its minimum period, as
maximum. However, the CA imposed the indeterminate penalty of four (4) years and
two (2) months of prision correccional, as minimum, to eight (8) years of prision
mayor, as maximum, plus one (1) year for each additional ₱10,000.00, or a total of
seven (7) years.
In computing the penalty for this type of estafa, this Court's ruling in Cosme, Jr. v.
People48 is highly instructive, thus:
With respect to the imposable penalty, Article 315 of the Revised Penal Code
provides:
ART. 315 Swindling (estafa). - Any person who shall defraud another by any of the
means mentioned hereinbelow shall be punished by:
1st. The penalty of prision correccional in its maximum period to prision mayor in its
minimum period, if the amount of the fraud is over 12,000 but does not exceed
22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this
paragraph shall be imposed in its maximum period, adding one year for each
additional 10,000 pesos; but the total penalty which may be imposed shall not exceed
twenty years. In such case, and in connection with the accessory penalties which may
be imposed and for the purpose of the other provisions of this Code, the penalty shall
be termed prision mayor or reclusion temporal, as the case may be.
The penalty prescribed by Article 315 is composed of only two, not three, periods, in
which case, Article 65 of the same Code requires the division of the time included in
the penalty into three equal portions of time included in the penalty prescribed,
forming one period of each of the three portions. Applying the latter provisions, the
maximum, medium and minimum periods of the penalty prescribed are:
Maximum - 6 years, 8 months, 21 days to 8 years
Medium - 5 years, 5 months, 11 days to 6 years, 8 months, 20 days
Minimum - 4 years, 2 months, 1 day to 5 years, 5 months, 10 days49
To compute the maximum period of the prescribed penalty, prisión correccional
maximum to prisión mayor minimum should be divided into three equal portions of
time each of which portion shall be deemed to form one period in accordance with
Article 6550 of the RPC.51 In the present case, the amount involved is ₱98,000.00,
which exceeds ₱22,000.00, thus, the maximum penalty imposable should be within
the maximum period of 6 years, 8 months and 21 days to 8 years of prision mayor.
Article 315 also states that a period of one year shall be added to the penalty for
every additional ₱10,000.00 defrauded in excess of ₱22,000.00, but in no case shall
the total penalty which may be imposed exceed 20 years.
Considering that the amount of ₱98,000.00 is ₱76,000.00 more than the ₱22,000.00
ceiling set by law, then, adding one year for each additional ₱10,000.00, the
maximum period of 6 years, 8 months and 21 days to 8 years of prision mayor
minimum would be increased by 7 years. Taking the maximum of the prescribed
penalty, which is 8 years, plus an additional 7 years, the maximum of the
indeterminate penalty is 15 years.
Applying the Indeterminate Sentence Law, since the penalty prescribed by law for
the estafa charge against petitioner is prision correccional maximum to prision mayor
minimum, the penalty next lower would then be prision correccional in its minimum
and medium periods.

Thus, the minimum term of the indeterminate sentence should be anywhere from 6
months and 1 day to 4 years and 2 months.

One final note, the Court should give Congress a chance to perform its primordial
duty of lawmaking. The Court should not pre-empt Congress and usurp its inherent
powers of making and enacting laws. While it may be the most expeditious approach,
a short cut by judicial fiat is a dangerous proposition, lest the Court dare trespass on
prohibited judicial legislation.

WHEREFORE, the Petition for Review on Certiorari dated November 5, 2007 of

petitioner Lito Corpuz is hereby DENIED. Consequently, the Decision dated March 22,
2007 and Resolution dated September 5, 2007 of the Court of Appeals, which
affirmed with modification the Decision dated July 30, 2004 of the Regional Trial
Court, Branch 46, San Fernando City, finding petitioner guilty beyond reasonable
doubt of the crime of Estafa under Article 315, paragraph (1), sub-paragraph (b) of
the Revised Penal Code, are hereby AFFIRMED with MODIFICATION that the penalty
imposed is the indeterminate penalty of imprisonment ranging from THREE (3)
YEARS, TWO (2) MONTHS and ELEVEN DAYS of prision correccional, as minimum, to
FIFTEEN (15) YEARS of reclusion temporal as maximum.

Pursuant to Article 5 of the Revised Penal Code, let a Copy of this Decision be
furnished the President of the Republic of the Philippines, through the Department
of Justice.

Also, let a copy of this Decision be furnished the President of the Senate and the
Speaker of the House of Representatives.

SO ORDERED.
G.R. No. 169364 September 18, 2009 2. Any person found loitering about public or semi-public buildings or places
or tramping or wandering about the country or the streets without visible
PEOPLE OF THE PHILIPPINES, Petitioner, means of support;
vs.
EVANGELINE SITON y SACIL and KRYSTEL KATE SAGARANO y 3. Any idle or dissolute person who lodges in houses of ill fame; ruffians or
MEFANIA, Respondents. pimps and those who habitually associate with prostitutes;

DECISION 4. Any person who, not being included in the provisions of other articles of
this Code, shall be found loitering in any inhabited or uninhabited place
YNARES-SANTIAGO, J.: belonging to another without any lawful or justifiable purpose;

If a man is called to be a street sweeper, he should sweep streets even as 5. Prostitutes.

Michelangelo painted, or Beethoven composed music, or Shakespeare wrote poetry.
He should sweep streets so well that all the hosts of Heaven and Earth will pause to For the purposes of this article, women who, for money or profit, habitually indulge
say, here lived a great street sweeper who did his job well. in sexual intercourse or lascivious conduct, are deemed to be prostitutes.

– Martin Luther King, Jr.
Assailed in this petition for review on certiorari is the July 29, 2005 Order 1 of Branch
11, Davao City Regional Trial Court in Special Civil Case No. 30-500-2004 granting
respondents’ Petition for Certiorari and declaring paragraph 2 of Article 202 of the
Revised Penal Code unconstitutional.
Respondents Evangeline Siton and Krystel Kate Sagarano were charged with vagrancy
pursuant to Article 202 (2) of the Revised Penal Code in two separate Informations
dated November 18, 2003, docketed as Criminal Case Nos. 115,716-C-2003 and
115,717-C-2003 and raffled to Branch 3 of the Municipal Trial Court in Cities, Davao
City. The Informations, read:
That on or about November 14, 2003, in the City of Davao, Philippines, and within
the jurisdiction of this Honorable Court, the above-mentioned accused, willfully,
unlawfully and feloniously wandered and loitered around San Pedro and Legaspi
Streets, this City, without any visible means to support herself nor lawful and
justifiable purpose.2
Article 202 of the Revised Penal Code provides:
Art. 202. Vagrants and prostitutes; penalty. — The following are vagrants:
1. Any person having no apparent means of subsistence, who has the
physical ability to work and who neglects to apply himself or herself to some
lawful calling;
Any person found guilty of any of the offenses covered by this articles shall be
punished by arresto menor or a fine not exceeding 200 pesos, and in case of
recidivism, by arresto mayor in its medium period to prision correccional in its
minimum period or a fine ranging from 200 to 2,000 pesos, or both, in the discretion
of the court.
Instead of submitting their counter-affidavits as directed, respondents filed separate
Motions to Quash3 on the ground that Article 202 (2) is unconstitutional for being
vague and overbroad.
In an Order4 dated April 28, 2004, the municipal trial court denied the motions and
directed respondents anew to file their respective counter-affidavits. The municipal
trial court also declared that the law on vagrancy was enacted pursuant to the State’s
police power and justified by the Latin maxim "salus populi est suprem(a) lex," which
calls for the subordination of individual benefit to the interest of the greater number,
thus:
Our law on vagrancy was enacted pursuant to the police power of the State. An
authority on police power, Professor Freund describes laconically police power "as
the power of promoting public welfare by restraining and regulating the use of liberty
and property." (Citations omitted). In fact the person’s acts and acquisitions are
hemmed in by the police power of the state. The justification found in the Latin
maxim, salus populi est supreme (sic) lex" (the god of the people is the Supreme Law).
This calls for the subordination of individual benefit to the interests of the greater
number.In the case at bar the affidavit of the arresting police officer, SPO1 JAY PLAZA
with Annex "A" lucidly shows that there was a prior surveillance conducted in view
of the reports that vagrants and prostitutes proliferate in the place where the two
accused (among other women) were wandering and in the wee hours of night and
soliciting male customer. Thus, on that basis the prosecution should be given a
leeway to prove its case. Thus, in the interest of substantial justice, both prosecution
and defense must be given their day in Court: the prosecution proof of the crime, and
the author thereof; the defense, to show that the acts of the accused in the
indictment can’t be categorized as a crime.5
The municipal trial court also noted that in the affidavit of the arresting police officer,
SPO1 Jay Plaza, it was stated that there was a prior surveillance conducted on the
two accused in an area reported to be frequented by vagrants and prostitutes who
solicited sexual favors. Hence, the prosecution should be given the opportunity to
prove the crime, and the defense to rebut the evidence.1avvphi1
Respondents thus filed an original petition for certiorari and prohibition with the
Regional Trial Court of Davao City,6directly challenging the constitutionality of the
anti-vagrancy law, claiming that the definition of the crime of vagrancy under Article
202 (2), apart from being vague, results as well in an arbitrary identification of
violators, since the definition of the crime includes in its coverage persons who are
otherwise performing ordinary peaceful acts. They likewise claimed that Article 202
(2) violated the equal protection clause under the Constitution because it
discriminates against the poor and unemployed, thus permitting an arbitrary and
unreasonable classification.
The State, through the Office of the Solicitor General, argued that pursuant to the
Court’s ruling in Estrada v. Sandiganbayan,7 the overbreadth and vagueness
doctrines apply only to free speech cases and not to penal statutes. It also asserted
that Article 202 (2) must be presumed valid and constitutional, since the respondents
failed to overcome this presumption.
On July 29, 2005, the Regional Trial Court issued the assailed Order granting the
petition, the dispositive portion of which reads:
WHEREFORE, PRESCINDING FROM THE FOREGOING, the instant Petition is hereby
GRANTED. Paragraph 2 of Article 202 of the Revised Penal Code is hereby declared
unconstitutional and the Order of the court a quo, dated April 28, 2004, denying the
petitioners’ Motion to Quash is set aside and the said court is ordered to dismiss the
subject criminal cases against the petitioners pending before it.
SO ORDERED.8
In declaring Article 202 (2) unconstitutional, the trial court opined that the law is
vague and it violated the equal protection clause. It held that the "void for vagueness"
doctrine is equally applicable in testing the validity of penal statutes.
Citing Papachristou v. City of Jacksonville,9 where an anti vagrancy ordinance was
struck down as unconstitutional by the Supreme Court of the United States, the trial
court ruled:
The U.S. Supreme Court’s justifications for striking down the Jacksonville Vagrancy
Ordinance are equally applicable to paragraph 2 of Article 202 of the Revised Penal
Code.
Indeed, to authorize a police officer to arrest a person for being "found loitering
about public or semi-public buildings or places or tramping or wandering about the
country or the streets without visible means of support" offers too wide a latitude
for arbitrary determinations as to who should be arrested and who should not.
Loitering about and wandering have become national pastimes particularly in these
times of recession when there are many who are "without visible means of support"
not by reason of choice but by force of circumstance as borne out by the high
unemployment rate in the entire country.
To authorize law enforcement authorities to arrest someone for nearly no other
reason than the fact that he cannot find gainful employment would indeed be adding
insult to injury.10
On its pronouncement that Article 202 (2) violated the equal protection clause of the
Constitution, the trial court declared:
The application of the Anti-Vagrancy Law, crafted in the 1930s, to our situation at
present runs afoul of the equal protection clause of the constitution as it offers no
reasonable classification between those covered by the law and those who are not.
Class legislation is such legislation which denies rights to one which are accorded to
others, or inflicts upon one individual a more severe penalty than is imposed upon
another in like case offending.
Applying this to the case at bar, since the definition of Vagrancy under Article 202 of
the Revised Penal Code offers no guidelines or any other reasonable indicators to
differentiate those who have no visible means of support by force of circumstance
and those who choose to loiter about and bum around, who are the proper subjects
of vagrancy legislation, it cannot pass a judicial scrutiny of its constitutionality.11
Hence, this petition for review on certiorari raising the sole issue of:
WHETHER THE REGIONAL TRIAL COURT COMMITTED A REVERSIBLE ERROR IN
DECLARING UNCONSTITUTIONAL ARTICLE 202 (2) OF THE REVISED PENAL CODE12
Petitioner argues that every statute is presumed valid and all reasonable doubts
should be resolved in favor of its constitutionality; that, citing Romualdez v.
Sandiganbayan,13 the overbreadth and vagueness doctrines have special application
to free-speech cases only and are not appropriate for testing the validity of penal
statutes; that respondents failed to overcome the presumed validity of the statute,
failing to prove that it was vague under the standards set out by the Courts; and that
the State may regulate individual conduct for the promotion of public welfare in the
exercise of its police power.
On the other hand, respondents argue against the limited application of the
overbreadth and vagueness doctrines. They insist that Article 202 (2) on its face
violates the constitutionally-guaranteed rights to due process and the equal
protection of the laws; that the due process vagueness standard, as distinguished
from the free speech vagueness doctrine, is adequate to declare Article 202 (2)
unconstitutional and void on its face; and that the presumption of constitutionality
was adequately overthrown.
The Court finds for petitioner.
The power to define crimes and prescribe their corresponding penalties is legislative
in nature and inherent in the sovereign power of the state to maintain social order
as an aspect of police power. The legislature may even forbid and penalize acts
formerly considered innocent and lawful provided that no constitutional rights have
been abridged.14 However, in exercising its power to declare what acts constitute a
crime, the legislature must inform the citizen with reasonable precision what acts it
intends to prohibit so that he may have a certain understandable rule of conduct and
know what acts it is his duty to avoid.15 This requirement has come to be known as
the void-for-vagueness doctrine which states that "a statute which either forbids or
requires the doing of an act in terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its application, violates the first
essential of due process of law."16
In Spouses Romualdez v. COMELEC,17 the Court recognized the application of the
void-for-vagueness doctrine to criminal statutes in appropriate cases. The Court
therein held:
At the outset, we declare that under these terms, the opinions of the dissent which
seek to bring to the fore the purported ambiguities of a long list of provisions in
Republic Act No. 8189 can be deemed as a facial challenge. An appropriate "as
applied" challenge in the instant Petition should be limited only to Section 45 (j) in
relation to Sections 10 (g) and (j) of Republic Act No. 8189 – the provisions upon
which petitioners are charged. An expanded examination of the law covering
provisions which are alien to petitioners’ case would be antagonistic to the rudiment
that for judicial review to be exercised, there must be an existing case or controversy
that is appropriate or ripe for determination, and not conjectural or anticipatory. 18
The first statute punishing vagrancy – Act No. 519 – was modeled after American
vagrancy statutes and passed by the Philippine Commission in 1902. The Penal Code
of Spain of 1870 which was in force in this country up to December 31, 1931 did not
contain a provision on vagrancy.19 While historically an Anglo-American concept of
crime prevention, the law on vagrancy was included by the Philippine legislature as a
permanent feature of the Revised Penal Code in Article 202 thereof which, to repeat,
provides:
ART. 202. Vagrants and prostitutes; penalty. – The following are vagrants:
1. Any person having no apparent means of subsistence, who has the
physical ability to work and who neglects to apply himself or herself to some
lawful calling;
2. Any person found loitering about public or semi-public buildings or places,
or tramping or wandering about the country or the streets without visible
means of support;
3. Any idle or dissolute person who lodges in houses of ill-fame; ruffians or
pimps and those who habitually associate with prostitutes;
4. Any person who, not being included in the provisions of other articles of
this Code, shall be found loitering in any inhabited or uninhabited place
belonging to another without any lawful or justifiable purpose;
5. Prostitutes.
For the purposes of this article, women who, for money or profit, habitually indulge
in sexual intercourse or lascivious conduct, are deemed to be prostitutes.
Any person found guilty of any of the offenses covered by this article shall be
punished by arresto menor or a fine not exceeding 200 pesos, and in case of
recidivism, by arresto mayor in its medium period to prision correccional in its
minimum period or a fine ranging from 200 to 2,000 pesos, or both, in the discretion
of the court.
In the instant case, the assailed provision is paragraph (2), which defines a vagrant as
any person found loitering about public or semi-public buildings or places, or
tramping or wandering about the country or the streets without visible means of
support. This provision was based on the second clause of Section 1 of Act No. 519
which defined "vagrant" as "every person found loitering about saloons or dramshops
or gambling houses, or tramping or straying through the country without visible
means of support." The second clause was essentially retained with the modification
that the places under which the offense might be committed is now expressed in
general terms – public or semi-public places.
The Regional Trial Court, in asserting the unconstitutionality of Article 202 (2), take
support mainly from the U.S. Supreme Court’s opinion in the Papachristou v. City of
Jacksonville20 case, which in essence declares:
Living under a rule of law entails various suppositions, one of which is that "[all
persons] are entitled to be informed as to what the State commands or forbids."
Lanzetta v. New Jersey, 306 U. S. 451, 306 U. S. 453.
Lanzetta is one of a well recognized group of cases insisting that the law give fair
notice of the offending conduct. See Connally v. General Construction Co., 269 U. S.
385, 269 U. S. 391; Cline v. Frink Dairy Co., 274 U. S. 445; United States v. Cohen
Grocery Co., 255 U. S. 81. In the field of regulatory statutes governing business
activities, where the acts limited are in a narrow category, greater leeway is allowed.
Boyce Motor Lines, Inc. v. United States, 342 U. S. 337; United States v. National Dairy
Products Corp., 372 U. S. 29; United States v. Petrillo, 332 U. S. 1.
The poor among us, the minorities, the average householder, are not in business and
not alerted to the regulatory schemes of vagrancy laws; and we assume they would
have no understanding of their meaning and impact if they read them. Nor are they
protected from being caught in the vagrancy net by the necessity of having a specific
intent to commit an unlawful act. See Screws v. United States, 325 U. S. 91; Boyce
Motor Lines, Inc. v. United States, supra.
The Jacksonville ordinance makes criminal activities which, by modern standards, are
normally innocent. "Nightwalking" is one. Florida construes the ordinance not to
make criminal one night's wandering, Johnson v. State, 202 So.2d at 855, only the
"habitual" wanderer or, as the ordinance describes it, "common night walkers." We
know, however, from experience that sleepless people often walk at night, perhaps
hopeful that sleep-inducing relaxation will result.
Luis Munoz-Marin, former Governor of Puerto Rico, commented once that "loafing"
was a national virtue in his Commonwealth, and that it should be encouraged. It is,
however, a crime in Jacksonville.
xxxx
Persons "wandering or strolling" from place to place have been extolled by Walt
Whitman and Vachel Lindsay. The qualification "without any lawful purpose or
object" may be a trap for innocent acts. Persons "neglecting all lawful business and
habitually spending their time by frequenting . . . places where alcoholic beverages
are sold or served" would literally embrace many members of golf clubs and city
clubs.
Walkers and strollers and wanderers may be going to or coming from a burglary.
Loafers or loiterers may be "casing" a place for a holdup. Letting one's wife support
him is an intra-family matter, and normally of no concern to the police. Yet it may, of
course, be the setting for numerous crimes.
The difficulty is that these activities are historically part of the amenities of life as we
have known them. They are not mentioned in the Constitution or in the Bill of Rights.
These unwritten amenities have been, in part, responsible for giving our people the
feeling of independence and self-confidence, the feeling of creativity. These
amenities have dignified the right of dissent, and have honored the right to be
nonconformists and the right to defy submissiveness. They have encouraged lives of
high spirits, rather than hushed, suffocating silence.
xxxx
Where the list of crimes is so all-inclusive and generalized as the one in this ordinance,
those convicted may be punished for no more than vindicating affronts to police
authority:
"The common ground which brings such a motley assortment of human troubles
before the magistrates in vagrancy-type proceedings is the procedural laxity which
permits 'conviction' for almost any kind of conduct and the existence of the House of
Correction as an easy and convenient dumping-ground for problems that appear to
have no other immediate solution." Foote, Vagrancy-Type Law and Its
Administration, 104 U.Pa.L.Rev. 603, 631.
xxxx
Another aspect of the ordinance's vagueness appears when we focus not on the lack
of notice given a potential offender, but on the effect of the unfettered discretion it
places in the hands of the Jacksonville police. Caleb Foote, an early student of this
subject, has called the vagrancy-type law as offering "punishment by analogy." Such
crimes, though long common in Russia, are not compatible with our constitutional
system.
xxxx
A presumption that people who might walk or loaf or loiter or stroll or frequent
houses where liquor is sold, or who are supported by their wives or who look
suspicious to the police are to become future criminals is too precarious for a rule of
law. The implicit presumption in these generalized vagrancy standards -- that crime
is being nipped in the bud -- is too extravagant to deserve extended treatment. Of
course, vagrancy statutes are useful to the police. Of course, they are nets making
easy the roundup of so-called undesirables. But the rule of law implies equality and
justice in its application. Vagrancy laws of the Jacksonville type teach that the scales
of justice are so tipped that even-handed administration of the law is not possible.
The rule of law, evenly applied to minorities as well as majorities, to the poor as well
as the rich, is the great mucilage that holds society together.21
The underlying principles in Papachristou are that: 1) the assailed Jacksonville
ordinance "fails to give a person of ordinary intelligence fair notice that his
contemplated conduct is forbidden by the statute;" and 2) it encourages or promotes
opportunities for the application of discriminatory law enforcement.
The said underlying principle in Papachristou that the Jacksonville ordinance, or
Article 202 (2) in this case, fails to give fair notice of what constitutes forbidden
conduct, finds no application here because under our legal system, ignorance of the
law excuses no one from compliance therewith.22 This principle is of Spanish origin,
and we adopted it to govern and limit legal conduct in this jurisdiction. Under
American law, ignorance of the law is merely a traditional rule that admits of
exceptions.23
Moreover, the Jacksonville ordinance was declared unconstitutional on account of
specific provisions thereof, which are not found in Article 202 (2). The ordinance
(Jacksonville Ordinance Code § 257) provided, as follows:
Rogues and vagabonds, or dissolute persons who go about begging; common
gamblers, persons who use juggling or unlawful games or plays, common drunkards,
common night walkers, thieves, pilferers or pickpockets, traders in stolen property,
lewd, wanton and lascivious persons, keepers of gambling places, common railers
and brawlers, persons wandering or strolling around from place to place without any
lawful purpose or object, habitual loafers, disorderly persons, persons neglecting all
lawful business and habitually spending their time by frequenting houses of ill fame,
gaming houses, or places where alcoholic beverages are sold or served, persons able
to work but habitually living upon the earnings of their wives or minor children shall
be deemed vagrants and, upon conviction in the Municipal Court shall be punished
as provided for Class D offenses.
Thus, the U.S. Supreme Court in Jacksonville declared the ordinance unconstitutional,
because such activities or habits as nightwalking, wandering or strolling around
without any lawful purpose or object, habitual loafing, habitual spending of time at
places where alcoholic beverages are sold or served, and living upon the earnings of
wives or minor children, which are otherwise common and normal, were declared
illegal. But these are specific acts or activities not found in Article 202 (2). The
closest to Article 202 (2) – "any person found loitering about public or semi-public
buildings or places, or tramping or wandering about the country or the streets
without visible means of support" – from the Jacksonville ordinance, would be
"persons wandering or strolling around from place to place without any lawful
purpose or object." But these two acts are still not the same: Article 202 (2) is
qualified by "without visible means of support" while the Jacksonville ordinance
prohibits wandering or strolling "without any lawful purpose or object," which was
held by the U.S. Supreme Court to constitute a "trap for innocent acts."
Under the Constitution, the people are guaranteed the right to be secure in their
persons, houses, papers and effects against unreasonable searches and seizures of
whatever nature and for any purpose, 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.24 Thus, as with any other act or offense, the requirement
of probable cause provides an acceptable limit on police or executive authority that
may otherwise be abused in relation to the search or arrest of persons found to be
violating Article 202 (2). The fear exhibited by the respondents, echoing Jacksonville,
that unfettered discretion is placed in the hands of the police to make an arrest or
search, is therefore assuaged by the constitutional requirement of probable cause,
which is one less than certainty or proof, but more than suspicion or possibility.25
Evidently, the requirement of probable cause cannot be done away with arbitrarily
without pain of punishment, for, absent this requirement, the authorities are
necessarily guilty of abuse. The grounds of suspicion are reasonable when, in the
absence of actual belief of the arresting officers, the suspicion that the person to be
arrested is probably guilty of committing the offense, is based on actual facts, i.e.,
supported by circumstances sufficiently strong in themselves to create the probable
cause of guilt of the person to be arrested. A reasonable suspicion therefore must be
founded on probable cause, coupled with good faith of the peace officers making the
arrest.26
The State cannot in a cavalier fashion intrude into the persons of its citizens as well
as into their houses, papers and effects. The constitutional provision sheathes the
private individual with an impenetrable armor against unreasonable searches and
seizures. It protects the privacy and sanctity of the person himself against unlawful
arrests and other forms of restraint, and prevents him from being irreversibly cut off
from that domestic security which renders the lives of the most unhappy in some
measure agreeable.27
As applied to the instant case, it appears that the police authorities have been
conducting previous surveillance operations on respondents prior to their arrest. On
the surface, this satisfies the probable cause requirement under our Constitution. For
this reason, we are not moved by respondents’ trepidation that Article 202 (2) could
have been a source of police abuse in their case.
Since the Revised Penal Code took effect in 1932, no challenge has ever been made
upon the constitutionality of Article 202 except now. Instead, throughout the years,
we have witnessed the streets and parks become dangerous and unsafe, a haven for
beggars, harassing "watch-your-car" boys, petty thieves and robbers, pickpockets,
swindlers, gangs, prostitutes, and individuals performing acts that go beyond decency
and morality, if not basic humanity. The streets and parks have become the training
ground for petty offenders who graduate into hardened and battle-scarred criminals.
Everyday, the news is rife with reports of innocent and hardworking people being
robbed, swindled, harassed or mauled – if not killed – by the scourge of the streets.
Blue collar workers are robbed straight from withdrawing hard-earned money from
the ATMs (automated teller machines); students are held up for having to use and
thus exhibit publicly their mobile phones; frail and helpless men are mauled by thrill-
seeking gangs; innocent passers-by are stabbed to death by rowdy drunken men
walking the streets; fair-looking or pretty women are stalked and harassed, if not
abducted, raped and then killed; robbers, thieves, pickpockets and snatchers case
streets and parks for possible victims; the old are swindled of their life savings by
conniving streetsmart bilkers and con artists on the prowl; beggars endlessly pester
and panhandle pedestrians and commuters, posing a health threat and putting law-
abiding drivers and citizens at risk of running them over. All these happen on the
streets and in public places, day or night.
The streets must be protected. Our people should never dread having to ply them
each day, or else we can never say that we have performed our task to our brothers
and sisters. We must rid the streets of the scourge of humanity, and restore order,
peace, civility, decency and morality in them.
This is exactly why we have public order laws, to which Article 202 (2) belongs. These
laws were crafted to maintain minimum standards of decency, morality and civility
in human society. These laws may be traced all the way back to ancient times, and
today, they have also come to be associated with the struggle to improve the citizens’
quality of life, which is guaranteed by our Constitution. 28 Civilly, they are covered by
the "abuse of rights" doctrine embodied in the preliminary articles of the Civil Code
concerning Human Relations, to the end, in part, that any person who willfully causes
loss or injury to another in a manner that is contrary to morals, good customs or
public policy shall compensate the latter for the damage.29 This provision is, together
with the succeeding articles on human relations, intended to embody certain basic
principles "that are to be observed for the rightful relationship between human
beings and for the stability of the social order."30
In civil law, for example, the summary remedy of ejectment is intended to prevent
criminal disorder and breaches of the peace and to discourage those who, believing
themselves entitled to the possession of the property, resort to force rather than to
some appropriate action in court to assert their claims. 31 Any private person may
abate a public nuisance which is specially injurious to him by removing, or if
necessary, by destroying the thing which constitutes the same, without committing
a breach of the peace, or doing unnecessary injury.32
Criminally, public order laws encompass a whole range of acts – from public
indecencies and immoralities, to public nuisances, to disorderly conduct. The acts
punished are made illegal by their offensiveness to society’s basic sensibilities and
their adverse effect on the quality of life of the people of society. For example, the
issuance or making of a bouncing check is deemed a public nuisance, a crime against
public order that must be abated.33 As a matter of public policy, the failure to turn
over the proceeds of the sale of the goods covered by a trust receipt or to return said
goods, if not sold, is a public nuisance to be abated by the imposition of penal
sanctions.34 Thus, public nuisances must be abated because they have the effect of
interfering with the comfortable enjoyment of life or property by members of a
community.
Article 202 (2) does not violate the equal protection clause; neither does it
discriminate against the poor and the unemployed. Offenders of public order laws
are punished not for their status, as for being poor or unemployed, but for conducting
themselves under such circumstances as to endanger the public peace or cause alarm
and apprehension in the community. Being poor or unemployed is not a license or a
justification to act indecently or to engage in immoral conduct.
Vagrancy must not be so lightly treated as to be considered constitutionally offensive.
It is a public order crime which punishes persons for conducting themselves, at a
certain place and time which orderly society finds unusual, under such conditions
that are repugnant and outrageous to the common standards and norms of decency
and morality in a just, civilized and ordered society, as would engender a justifiable
concern for the safety and well-being of members of the community.
Instead of taking an active position declaring public order laws unconstitutional, the
State should train its eye on their effective implementation, because it is in this area
that the Court perceives difficulties. Red light districts abound, gangs work the streets
in the wee hours of the morning, dangerous robbers and thieves ply their trade in the CONSUELO YNARES-SANTIAGO
trains stations, drunken men terrorize law-abiding citizens late at night and urinate Associate Justice
on otherwise decent corners of our streets. Rugby-sniffing individuals crowd our
national parks and busy intersections. Prostitutes wait for customers by the roadside
all around the metropolis, some even venture in bars and restaurants. Drug-crazed
men loiter around dark avenues waiting to pounce on helpless citizens. Dangerous
groups wander around, casing homes and establishments for their next hit. The
streets must be made safe once more. Though a man’s house is his castle, 35 outside
on the streets, the king is fair game.

The dangerous streets must surrender to orderly society.

Finally, we agree with the position of the State that first and foremost, Article 202 (2)
should be presumed valid and constitutional. When confronted with a constitutional
question, it is elementary that every court must approach it with grave care and
considerable caution bearing in mind that every statute is presumed valid and every
reasonable doubt should be resolved in favor of its constitutionality. 36 The policy of
our courts is to avoid ruling on constitutional questions and to presume that the acts
of the political departments are valid in the absence of a clear and unmistakable
showing to the contrary. To doubt is to sustain, this presumption is based on the
doctrine of separation of powers which enjoins upon each department a becoming
respect for the acts of the other departments. The theory is that as the joint act of
Congress and the President of the Philippines, a law has been carefully studied,
crafted and determined to be in accordance with the fundamental law before it was
finally enacted.37

It must not be forgotten that police power is an inherent attribute of sovereignty. It

has been defined as the power vested by the Constitution in the legislature to make,
ordain, and establish all manner of wholesome and reasonable laws, statutes and
ordinances, either with penalties or without, not repugnant to the Constitution, as
they shall judge to be for the good and welfare of the commonwealth, and for the
subjects of the same. The power is plenary and its scope is vast and pervasive,
reaching and justifying measures for public health, public safety, public morals, and
the general welfare.38 As an obvious police power measure, Article 202 (2) must
therefore be viewed in a constitutional light.

WHEREFORE, the petition is GRANTED. The Decision of Branch 11 of the Regional

Trial Court of Davao City in Special Civil Case No. 30-500-2004 declaring Article 202,
paragraph 2 of the Revised Penal Code UNCONSTITUTIONAL is REVERSED and SET
ASIDE.

Let the proceedings in Criminal Cases Nos. 115,716-C-2003 and 115,717-C-2003 thus
continue.No costs.SO ORDERED.
G.R. No. 111097 July 20, 1994 permit shall be issued to any person, partnership or corporation for
the operation of casino within the city limits.
MAYOR PABLO P. MAGTAJAS & THE CITY OF CAGAYAN DE ORO, petitioners,
vs. Sec. 2. — That it shall be a violation of existing business permit by
PRYCE PROPERTIES CORPORATION, INC. & PHILIPPINE AMUSEMENT AND GAMING any persons, partnership or corporation to use its business
CORPORATION, respondents. establishment or portion thereof, or allow the use thereof by
others for casino operation and other gambling activities.
Aquilino G. Pimentel, Jr. and Associates for petitioners.
Sec. 3. — PENALTIES. — Any violation of such existing business
R.R. Torralba & Associates for private respondent. permit as defined in the preceding section shall suffer the following
penalties, to wit:

a) Suspension of the business

CRUZ, J.: permit for sixty (60) days for
the first offense and a fine of
P1,000.00/day
There was instant opposition when PAGCOR announced the opening of a casino in
Cagayan de Oro City. Civic organizations angrily denounced the project. The religious
elements echoed the objection and so did the women's groups and the youth. b) Suspension of the business
Demonstrations were led by the mayor and the city legislators. The media trumpeted permit for Six (6) months for
the protest, describing the casino as an affront to the welfare of the city. the second offense, and a fine
of P3,000.00/day
The trouble arose when in 1992, flush with its tremendous success in several cities,
PAGCOR decided to expand its operations to Cagayan de Oro City. To this end, it c) Permanent revocation of the
leased a portion of a building belonging to Pryce Properties Corporation, Inc., one of business permit and
the herein private respondents, renovated and equipped the same, and prepared to imprisonment of One (1) year,
inaugurate its casino there during the Christmas season. for the third and subsequent
offenses.
The reaction of the Sangguniang Panlungsod of Cagayan de Oro City was swift and
hostile. On December 7, 1992, it enacted Ordinance No. 3353 reading as follows: Sec. 4. — This Ordinance shall take effect ten (10) days from
publication thereof.
ORDINANCE NO. 3353
Nor was this all. On January 4, 1993, it adopted a sterner Ordinance No. 3375-93
reading as follows:
AN ORDINANCE PROHIBITING THE ISSUANCE OF BUSINESS PERMIT
AND CANCELLING EXISTING BUSINESS PERMIT TO ANY
ESTABLISHMENT FOR THE USING AND ALLOWING TO BE USED ITS ORDINANCE NO. 3375-93
PREMISES OR PORTION THEREOF FOR THE OPERATION OF CASINO.
AN ORDINANCE PROHIBITING THE OPERATION OF CASINO AND
BE IT ORDAINED by the Sangguniang Panlungsod of the City of PROVIDING PENALTY FOR VIOLATION THEREFOR.
Cagayan de Oro, in session assembled that:
WHEREAS, the City Council established a policy as early as 1990
Sec. 1. — That pursuant to the policy of the city banning the against CASINO under its Resolution No. 2295;
operation of casino within its territorial jurisdiction, no business
WHEREAS, on October 14, 1992, the City Council passed another
Resolution No. 2673, reiterating its policy against the
establishment of CASINO;
WHEREAS, subsequently, thereafter, it likewise passed Ordinance
No. 3353, prohibiting the issuance of Business Permit and to cancel
existing Business Permit to any establishment for the using and
allowing to be used its premises or portion thereof for the
operation of CASINO;
WHEREAS, under Art. 3, section 458, No. (4), sub paragraph VI of
the Local Government Code of 1991 (Rep. Act 7160) and under Art.
99, No. (4), Paragraph VI of the implementing rules of the Local
Government Code, the City Council as the Legislative Body shall
enact measure to suppress any activity inimical to public morals
and general welfare of the people and/or regulate or prohibit such
activity pertaining to amusement or entertainment in order to
protect social and moral welfare of the community;
NOW THEREFORE,
BE IT ORDAINED by the City Council in session duly assembled that:
Sec. 1. — The operation of gambling CASINO in the City of Cagayan
de Oro is hereby prohibited.
Sec. 2. — Any violation of this Ordinance shall be subject to the
following penalties:
a) Administrative fine of P5,000.00 shall be imposed against the
proprietor, partnership or corporation undertaking the operation,
conduct, maintenance of gambling CASINO in the City and closure
thereof;
b) Imprisonment of not less than six (6) months nor more than one
(1) year or a fine in the amount of P5,000.00 or both at the
discretion of the court against the manager, supervisor, and/or any
person responsible in the establishment, conduct and maintenance
of gambling CASINO.
Sec. 3. — This Ordinance shall take effect ten (10) days after its
publication in a local newspaper of general circulation.
Pryce assailed the ordinances before the Court of Appeals, where it was joined by
PAGCOR as intervenor and supplemental petitioner. Their challenge succeeded. On
March 31, 1993, the Court of Appeals declared the ordinances invalid and issued the
writ prayed for to prohibit their enforcement. 1 Reconsideration of this decision was
denied on July 13, 1993. 2
Cagayan de Oro City and its mayor are now before us in this petition for review under
Rule 45 of the Rules of Court. 3 They aver that the respondent Court of Appeals erred
in holding that:
1. Under existing laws, the Sangguniang Panlungsod of the City of
Cagayan de Oro does not have the power and authority to prohibit
the establishment and operation of a PAGCOR gambling casino
within the City's territorial limits.
2. The phrase "gambling and other prohibited games of chance"
found in Sec. 458, par. (a), sub-par. (1) — (v) of R.A. 7160 could only
mean "illegal gambling."
3. The questioned Ordinances in effect annul P.D. 1869 and are
therefore invalid on that point.
4. The questioned Ordinances are discriminatory to casino and
partial to cockfighting and are therefore invalid on that point.
5. The questioned Ordinances are not reasonable, not consonant
with the general powers and purposes of the instrumentality
concerned and inconsistent with the laws or policy of the State.
6. It had no option but to follow the ruling in the case of Basco, et
al. v. PAGCOR, G.R. No. 91649, May 14, 1991, 197 SCRA 53 in
disposing of the issues presented in this present case.
PAGCOR is a corporation created directly by P.D. 1869 to help centralize and regulate
all games of chance, including casinos on land and sea within the territorial
jurisdiction of the Philippines. In Basco v. Philippine Amusements and Gaming
Corporation, 4 this Court sustained the constitutionality of the decree and even cited
the benefits of the entity to the national economy as the third highest revenue-
earner in the government, next only to the BIR and the Bureau of Customs.
Cagayan de Oro City, like other local political subdivisions, is empowered to enact
ordinances for the purposes indicated in the Local Government Code. It is expressly
vested with the police power under what is known as the General Welfare Clause
now embodied in Section 16 as follows:
Sec. 16. — General Welfare. — Every local government unit shall
exercise the powers expressly granted, those necessarily implied
therefrom, as well as powers necessary, appropriate, or incidental
for its efficient and effective governance, and those which are
essential to the promotion of the general welfare. Within their
respective territorial jurisdictions, local government units shall
ensure and support, among other things, the preservation and
enrichment of culture, promote health and safety, enhance the
right of the people to a balanced ecology, encourage and support
the development of appropriate and self-reliant scientific and
technological capabilities, improve public morals, enhance
economic prosperity and social justice, promote full employment
among their residents, maintain peace and order, and preserve the
comfort and convenience of their inhabitants.
In addition, Section 458 of the said Code specifically declares that:
Sec. 458. — Powers, Duties, Functions and Compensation. — (a)
The Sangguniang Panlungsod, as the legislative body of the city,
shall enact ordinances, approve resolutions and appropriate funds
for the general welfare of the city and its inhabitants pursuant to
Section 16 of this Code and in the proper exercise of the corporate
powers of the city as provided for under Section 22 of this Code,
and shall:
(1) Approve ordinances and pass resolutions necessary for an
efficient and effective city government, and in this connection,
shall:
xxx xxx xxx
(v) Enact ordinances intended
to prevent, suppress and
impose appropriate penalties
for habitual drunkenness in
public places, vagrancy,
mendicancy, prostitution,
establishment and
maintenance of houses of ill
repute, gamblingand other
prohibited games of chance,
fraudulent devices and ways to
obtain money or property,
drug addiction, maintenance of
drug dens, drug pushing,
juvenile delinquency, the
printing, distribution or
exhibition of obscene or
pornographic materials or
publications, and such other
activities inimical to the
welfare and morals of the
inhabitants of the city;
This section also authorizes the local government units to regulate properties and
businesses within their territorial limits in the interest of the general welfare. 5
The petitioners argue that by virtue of these provisions, the Sangguniang Panlungsod
may prohibit the operation of casinos because they involve games of chance, which
are detrimental to the people. Gambling is not allowed by general law and even by
the Constitution itself. The legislative power conferred upon local government units
may be exercised over all kinds of gambling and not only over "illegal gambling" as
the respondents erroneously argue. Even if the operation of casinos may have been
permitted under P.D. 1869, the government of Cagayan de Oro City has the authority
to prohibit them within its territory pursuant to the authority entrusted to it by the
Local Government Code.
It is submitted that this interpretation is consonant with the policy of local autonomy
as mandated in Article II, Section 25, and Article X of the Constitution, as well as
various other provisions therein seeking to strengthen the character of the nation. In
giving the local government units the power to prevent or suppress gambling and
other social problems, the Local Government Code has recognized the competence
of such communities to determine and adopt the measures best expected to
promote the general welfare of their inhabitants in line with the policies of the State.
The petitioners also stress that when the Code expressly authorized the local
government units to prevent and suppress gambling and other prohibited games of
chance, like craps, baccarat, blackjack and roulette, it meant allforms of gambling
without distinction. Ubi lex non distinguit, nec nos distinguere debemos. 6 Otherwise,
it would have expressly excluded from the scope of their power casinos and other
forms of gambling authorized by special law, as it could have easily done. The fact
that it did not do so simply means that the local government units are permitted to
prohibit all kinds of gambling within their territories, including the operation of
casinos.
The adoption of the Local Government Code, it is pointed out, had the effect of
modifying the charter of the PAGCOR. The Code is not only a later enactment than
P.D. 1869 and so is deemed to prevail in case of inconsistencies between them. More
than this, the powers of the PAGCOR under the decree are expressly discontinued by
the Code insofar as they do not conform to its philosophy and provisions, pursuant
to Par. (f) of its repealing clause reading as follows:
(f) All general and special laws, acts, city charters, decrees,
executive orders, proclamations and administrative regulations, or
part or parts thereof which are inconsistent with any of the
provisions of this Code are hereby repealed or modified
accordingly.
It is also maintained that assuming there is doubt regarding the effect of the Local
Government Code on P.D. 1869, the doubt must be resolved in favor of the
petitioners, in accordance with the direction in the Code calling for its liberal
interpretation in favor of the local government units. Section 5 of the Code
specifically provides:
Sec. 5. Rules of Interpretation. — In the interpretation of the
provisions of this Code, the following rules shall apply:
(a) Any provision on a power of a local government unit shall be
liberally interpreted in its favor, and in case of doubt, any question
thereon shall be resolved in favor of devolution of powers and of the
lower local government unit. Any fair and reasonable doubt as to
the existence of the power shall be interpreted in favor of the local
government unit concerned;
xxx xxx xxx
(c) The general welfare provisions in this Code shall be liberally
interpreted to give more powers to local government units in
accelerating economic development and upgrading the quality of
life for the people in the community; . . . (Emphasis supplied.)
Finally, the petitioners also attack gambling as intrinsically harmful and cite various
provisions of the Constitution and several decisions of this Court expressive of the
general and official disapprobation of the vice. They invoke the State policies on the
family and the proper upbringing of the youth and, as might be expected, call
attention to the old case of U.S. v. Salaveria,7 which sustained a municipal ordinance
prohibiting the playing of panguingue. The petitioners decry the immorality of
gambling. They also impugn the wisdom of P.D. 1869 (which they describe as "a
martial law instrument") in creating PAGCOR and authorizing it to operate casinos
"on land and sea within the territorial jurisdiction of the Philippines."
This is the opportune time to stress an important point.
The morality of gambling is not a justiciable issue. Gambling is not illegal per se. While
it is generally considered inimical to the interests of the people, there is nothing in
the Constitution categorically proscribing or penalizing gambling or, for that matter,
even mentioning it at all. It is left to Congress to deal with the activity as it sees fit. In
the exercise of its own discretion, the legislature may prohibit gambling altogether
or allow it without limitation or it may prohibit some forms of gambling and allow
others for whatever reasons it may consider sufficient. Thus, it has
prohibited jueteng and monte but permits lotteries, cockfighting and horse-racing. In
making such choices, Congress has consulted its own wisdom, which this Court has
no authority to review, much less reverse. Well has it been said that courts do not sit
to resolve the merits of conflicting theories. 8 That is the prerogative of the political
departments. It is settled that questions regarding the wisdom, morality, or
practicibility of statutes are not addressed to the judiciary but may be resolved only
by the legislative and executive departments, to which the function belongs in our
scheme of government. That function is exclusive. Whichever way these branches
decide, they are answerable only to their own conscience and the constituents who
will ultimately judge their acts, and not to the courts of justice.
The only question we can and shall resolve in this petition is the validity of Ordinance
No. 3355 and Ordinance No. 3375-93 as enacted by the Sangguniang Panlungsod of
Cagayan de Oro City. And we shall do so only by the criteria laid down by law and not
by our own convictions on the propriety of gambling.
The tests of a valid ordinance are well established. A long line of decisions 9 has held
that to be valid, an ordinance must conform to the following substantive
requirements:
1) It must not contravene the constitution or any statute.
2) It must not be unfair or oppressive.
3) It must not be partial or discriminatory.
4) It must not prohibit but may regulate trade.
 5) It must be general and consistent with public policy.
6) It must not be unreasonable.
We begin by observing that under Sec. 458 of the Local Government Code, local
government units are authorized to prevent or suppress, among others, "gambling
and other prohibited games of chance." Obviously, this provision excludes games of
chance which are not prohibited but are in fact permitted by law. The petitioners are
less than accurate in claiming that the Code could have excluded such games of
chance but did not. In fact it does. The language of the section is clear and
unmistakable. Under the rule of noscitur a sociis, a word or phrase should be
interpreted in relation to, or given the same meaning of, words with which it is
associated. Accordingly, we conclude that since the word "gambling" is associated
with "and other prohibited games of chance," the word should be read as referring
to only illegal gambling which, like the other prohibited games of chance, must be
prevented or suppressed.
We could stop here as this interpretation should settle the problem quite
conclusively. But we will not. The vigorous efforts of the petitioners on behalf of the
inhabitants of Cagayan de Oro City, and the earnestness of their advocacy, deserve
more than short shrift from this Court.
The apparent flaw in the ordinances in question is that they contravene P.D. 1869
and the public policy embodied therein insofar as they prevent PAGCOR from
exercising the power conferred on it to operate a casino in Cagayan de Oro City. The
petitioners have an ingenious answer to this misgiving. They deny that it is the
ordinances that have changed P.D. 1869 for an ordinance admittedly cannot prevail
against a statute. Their theory is that the change has been made by the Local
Government Code itself, which was also enacted by the national lawmaking
authority. In their view, the decree has been, not really repealed by the Code, but
merely "modified pro tanto" in the sense that PAGCOR cannot now operate a casino
over the objection of the local government unit concerned. This modification of P.D.
1869 by the Local Government Code is permissible because one law can change or
repeal another law.
It seems to us that the petitioners are playing with words. While insisting that the
decree has only been "modifiedpro tanto," they are actually arguing that it is already
dead, repealed and useless for all intents and purposes because the Code has shorn
PAGCOR of all power to centralize and regulate casinos. Strictly speaking, its
operations may now be not only prohibited by the local government unit; in fact, the
prohibition is not only discretionary but mandated by Section 458 of the Code if the
word "shall" as used therein is to be given its accepted meaning. Local government
units have now no choice but to prevent and suppress gambling, which in the
petitioners' view includes both legal and illegal gambling. Under this construction,
PAGCOR will have no more games of chance to regulate or centralize as they must all
be prohibited by the local government units pursuant to the mandatory duty imposed
upon them by the Code. In this situation, PAGCOR cannot continue to exist except
only as a toothless tiger or a white elephant and will no longer be able to exercise its
powers as a prime source of government revenue through the operation of casinos.
It is noteworthy that the petitioners have cited only Par. (f) of the repealing clause,
conveniently discarding the rest of the provision which painstakingly mentions the
specific laws or the parts thereof which are repealed (or modified) by the Code.
Significantly, P.D. 1869 is not one of them. A reading of the entire repealing clause,
which is reproduced below, will disclose the omission:
Sec. 534. Repealing Clause. — (a) Batas Pambansa Blg. 337,
otherwise known as the "Local Government Code," Executive Order
No. 112 (1987), and Executive Order No. 319 (1988) are hereby
repealed.
(b) Presidential Decree Nos. 684, 1191, 1508 and such other
decrees, orders, instructions, memoranda and issuances related to
or concerning the barangay are hereby repealed.
(c) The provisions of Sections 2, 3, and 4 of Republic Act No. 1939
regarding hospital fund; Section 3, a (3) and b (2) of Republic Act.
No. 5447 regarding the Special Education Fund; Presidential Decree
No. 144 as amended by Presidential Decree Nos. 559 and 1741;
Presidential Decree No. 231 as amended; Presidential Decree No.
436 as amended by Presidential Decree No. 558; and Presidential
Decree Nos. 381, 436, 464, 477, 526, 632, 752, and 1136 are hereby
repealed and rendered of no force and effect.
(d) Presidential Decree No. 1594 is hereby repealed insofar as it
governs locally-funded projects.
(e) The following provisions are hereby repealed or amended
insofar as they are inconsistent with the provisions of this Code:
Sections 2, 16, and 29 of Presidential Decree No. 704; Sections 12
of Presidential Decree No. 87, as amended; Sections 52, 53, 66, 67,
68, 69, 70, 71, 72, 73, and 74 of Presidential Decree No. 463, as
amended; and Section 16 of Presidential Decree No. 972, as
amended, and
 (f) All general and special laws, acts, city charters, decrees,
executive orders, proclamations and administrative regulations, or
part or parts thereof which are inconsistent with any of the
provisions of this Code are hereby repealed or modified
accordingly.
Furthermore, it is a familiar rule that implied repeals are not lightly presumed in the
absence of a clear and unmistakable showing of such intention. In Lichauco & Co. v.
Apostol, 10 this Court explained:
The cases relating to the subject of repeal by implication all
proceed on the assumption that if the act of later date clearly
reveals an intention on the part of the lawmaking power to
abrogate the prior law, this intention must be given effect; but
there must always be a sufficient revelation of this intention, and it
has become an unbending rule of statutory construction that the
intention to repeal a former law will not be imputed to the
Legislature when it appears that the two statutes, or provisions,
with reference to which the question arises bear to each other the
relation of general to special.
There is no sufficient indication of an implied repeal of P.D. 1869. On the contrary, as
the private respondent points out, PAGCOR is mentioned as the source of funding in
two later enactments of Congress, to wit, R.A. 7309, creating a Board of Claims under
the Department of Justice for the benefit of victims of unjust punishment or
detention or of violent crimes, and R.A. 7648, providing for measures for the solution
of the power crisis. PAGCOR revenues are tapped by these two statutes. This would
show that the PAGCOR charter has not been repealed by the Local Government Code
but has in fact been improved as it were to make the entity more responsive to the
fiscal problems of the government.
It is a canon of legal hermeneutics that instead of pitting one statute against another
in an inevitably destructive confrontation, courts must exert every effort to reconcile
them, remembering that both laws deserve a becoming respect as the handiwork of
a coordinate branch of the government. On the assumption of a conflict between
P.D. 1869 and the Code, the proper action is not to uphold one and annul the other
but to give effect to both by harmonizing them if possible. This is possible in the case
before us. The proper resolution of the problem at hand is to hold that under the
Local Government Code, local government units may (and indeed must) prevent and
suppress all kinds of gambling within their territories except only those allowed by
statutes like P.D. 1869. The exception reserved in such laws must be read into the
Code, to make both the Code and such laws equally effective and mutually
complementary.
This approach would also affirm that there are indeed two kinds of gambling, to wit,
the illegal and those authorized by law. Legalized gambling is not a modern concept;
it is probably as old as illegal gambling, if not indeed more so. The petitioners'
suggestion that the Code authorizes them to prohibit all kinds of gambling would
erase the distinction between these two forms of gambling without a clear indication
that this is the will of the legislature. Plausibly, following this theory, the City of
Manila could, by mere ordinance, prohibit the Philippine Charity Sweepstakes Office
from conducting a lottery as authorized by R.A. 1169 and B.P. 42 or stop the races at
the San Lazaro Hippodrome as authorized by R.A. 309 and R.A. 983.
In light of all the above considerations, we see no way of arriving at the conclusion
urged on us by the petitioners that the ordinances in question are valid. On the
contrary, we find that the ordinances violate P.D. 1869, which has the character and
force of a statute, as well as the public policy expressed in the decree allowing the
playing of certain games of chance despite the prohibition of gambling in general.
The rationale of the requirement that the ordinances should not contravene a statute
is obvious. Municipal governments are only agents of the national government. Local
councils exercise only delegated legislative powers conferred on them by Congress
as the national lawmaking body. The delegate cannot be superior to the principal or
exercise powers higher than those of the latter. It is a heresy to suggest that the local
government units can undo the acts of Congress, from which they have derived their
power in the first place, and negate by mere ordinance the mandate of the statute.
Municipal corporations owe their origin to, and derive their powers
and rights wholly from the legislature. It breathes into them the
breath of life, without which they cannot exist. As it creates, so it
may destroy. As it may destroy, it may abridge and control. Unless
there is some constitutional limitation on the right, the legislature
might, by a single act, and if we can suppose it capable of so great
a folly and so great a wrong, sweep from existence all of the
municipal corporations in the State, and the corporation could not
prevent it. We know of no limitation on the right so far as to the
corporation themselves are concerned. They are, so to phrase it,
the mere tenants at will of the legislature. 11
This basic relationship between the national legislature and the local government
units has not been enfeebled by the new provisions in the Constitution strengthening
the policy of local autonomy. Without meaning to detract from that policy, we here
confirm that Congress retains control of the local government units although in
significantly reduced degree now than under our previous Constitutions. The power
to create still includes the power to destroy. The power to grant still includes the
power to withhold or recall. True, there are certain notable innovations in the
Constitution, like the direct conferment on the local government units of the power
to tax, 12 which cannot now be withdrawn by mere statute. By and large, however,
the national legislature is still the principal of the local government units, which
cannot defy its will or modify or violate it.

The Court understands and admires the concern of the petitioners for the welfare of
their constituents and their apprehensions that the welfare of Cagayan de Oro City
will be endangered by the opening of the casino. We share the view that "the hope
of large or easy gain, obtained without special effort, turns the head of the
workman" 13 and that "habitual gambling is a cause of laziness and ruin." 14 In People
v. Gorostiza, 15 we declared: "The social scourge of gambling must be stamped out.
The laws against gambling must be enforced to the limit." George Washington called
gambling "the child of avarice, the brother of iniquity and the father of mischief."
Nevertheless, we must recognize the power of the legislature to decide, in its own
wisdom, to legalize certain forms of gambling, as was done in P.D. 1869 and impliedly
affirmed in the Local Government Code. That decision can be revoked by this Court
only if it contravenes the Constitution as the touchstone of all official acts. We do not
find such contravention here.

We hold that the power of PAGCOR to centralize and regulate all games of chance,
including casinos on land and sea within the territorial jurisdiction of the Philippines,
remains unimpaired. P.D. 1869 has not been modified by the Local Government
Code, which empowers the local government units to prevent or suppress only those
forms of gambling prohibited by law.

Casino gambling is authorized by P.D. 1869. This decree has the status of a statute
that cannot be amended or nullified by a mere ordinance. Hence, it was not
competent for the Sangguniang Panlungsod of Cagayan de Oro City to enact
Ordinance No. 3353 prohibiting the use of buildings for the operation of a casino and
Ordinance No. 3375-93 prohibiting the operation of casinos. For all their
praiseworthy motives, these ordinances are contrary to P.D. 1869 and the public
policy announced therein and are therefore ultra vires and void.

WHEREFORE, the petition is DENIED and the challenged decision of the respondent
Court of Appeals is AFFIRMED, with costs against the petitioners. It is so ordered.

Narvasa, C.J., Feliciano, Bidin, Regalado, Romero, Bellosillo, Melo, Quiason,

Puno, Vitug, Kapunan and Mendoza, JJ., concur.
G.R. No. 148560 November 19, 2001
JOSEPH EJERCITO ESTRADA, petitioner,
vs.
SANDIGANBAYAN (Third Division) and PEOPLE OF THE PHILIPPINES, respondents.
DECISION
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 mankind is warranted, individually or collectively, in interfering
with the liberty of action of any of their number, is self-protection. The only purpose
for which power can be rightfully exercised over any member of a civilized community,
against his will, is to prevent harm to others.
Parallel to individual liberty is the natural and illimitable right of the State to self-
preservation. With the end of maintaining the integrity and cohesiveness of the body
politic, it behooves the State to formulate a system of laws that would compel
obeisance to its collective wisdom and inflict punishment for non-observance.
The movement from Mill's individual liberalism to unsystematic collectivism wrought
changes in the social order, carrying with it a new formulation of fundamental rights
and duties more attuned to the imperatives of contemporary 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 their
individuality and dignity, inevitably followed. It is when individual rights are pitted
against State authority that judicial conscience is put to its severest test.
Petitioner Joseph Ejercito Estrada, the highest-ranking official to be prosecuted under
RA 7080 (An Act Defining and Penalizing the Crime of Plunder),1 as amended by RA
7659,2 wishes to impress upon us that the assailed law is so defectively fashioned that
it crosses that thin but distinct line which divides the valid from the constitutionally
infirm. He therefore makes a stringent call for this Court to subject the Plunder Law
to the crucible of constitutionality mainly because, according to him, (a) it suffers
from the vice of vagueness; (b) it dispenses with the "reasonable doubt" standard in
criminal prosecutions; and, (c) it abolishes the element of mens rea in crimes already
punishable under The Revised Penal Code, all of which are purportedly clear
violations of the fundamental rights of the accused to due process and to be informed
of the nature and cause of the accusation against him.
Specifically, the provisions of the Plunder Law claimed by petitioner to have
transgressed constitutional boundaries are Secs. 1, par. (d), 2 and 4 which are
reproduced hereunder:
Section 1. 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 and the
Republic of the Philippines.
Section 2. Definition of the Crime of Plunder, Penalties. - Any public officer who, by
himself or in connivance with members of his family, relatives by affinity or
consanguinity, business associates, subordinates or other persons, amasses,
accumulates or acquires ill-gotten wealth through a combination or series of overt
or criminal acts as described in Section 1 (d) hereof, in the aggregate amount or total
value of at least fifty million pesos (P50,000,000.00) shall be guilty of the crime of
plunder and shall be punished 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 April 2001 the Office of the Ombudsman filed before the Sandiganbayan eight
(8) separate Informations, docketed as: (a) Crim. Case No. 26558, for violation of RA
7080, as amended by RA 7659; (b) Crim. Cases Nos. 26559 to 26562, inclusive, for
violation of Secs. 3, par. (a), 3, par. (a), 3, par. (e) and 3, par. (e), of RA 3019 (Anti-
Graft and Corrupt Practices Act), respectively; (c) Crim. Case No. 26563, for violation
of Sec. 7, par. (d), of RA 6713 (The Code of Conduct and Ethical Standards for Public
Officials and Employees); (d) Crim. Case No. 26564, for Perjury (Art. 183 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).
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 the Sandiganbayan.
On 14 June 2001 petitioner moved to quash the Information in Crim. Case No. 26558
on the ground that the facts alleged therein did not constitute an indictable offense
since the law on which it was based was unconstitutional for vagueness, and that the
Amended Information for Plunder charged more than one (1) offense. On 21 June
2001 the Government filed its Opposition to the Motion to Quash, and five (5) days
later or on 26 June 2001 petitioner submitted his Reply to the Opposition. On 9 July
2001 the Sandiganbayan denied petitioner's Motion to Quash.
As concisely delineated by this Court during the oral arguments on 18 September
2001, the issues for resolution in the instant petition for certiorari are: (a) The Plunder
Law is unconstitutional for being vague; (b) The Plunder Law requires less evidence
for proving the predicate crimes of plunder and therefore violates the rights of the
accused to due process; and, (c) Whether Plunder as defined in RA 7080 is a malum
prohibitum, and if so, whether it is within the power of Congress to so classify it.
Preliminarily, the whole gamut of legal concepts pertaining to the validity of
legislation is predicated on the basic principle that a legislative measure is presumed
to be in harmony with the Constitution.3 Courts invariably train their sights on this
fundamental rule whenever a legislative act is under a constitutional attack, for it is
the postulate of constitutional adjudication. This strong predilection for
constitutionality takes its bearings on the idea that it is forbidden for one branch of
the government to encroach upon the duties and powers of another. Thus it has been
said that the presumption is based on the deference the judicial branch accords to its
coordinate branch - the legislature.
If there is any reasonable basis upon which the legislation may firmly rest, the courts
must assume that the legislature is ever conscious of the borders and edges of its
plenary powers, and has passed the law with full knowledge of the facts and for the
purpose of promoting what is right and advancing the welfare of the majority. Hence
in determining whether the acts of the legislature are in tune with the fundamental
law, courts should proceed with judicial restraint and act with caution and
forbearance. Every intendment of the law must be adjudged by the courts in favor of
its constitutionality, invalidity being a measure of last resort. In construing therefore
the provisions of a statute, courts must first ascertain whether an interpretation is
fairly possible to sidestep the question of constitutionality.
In La Union Credit Cooperative, Inc. v. 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 law into the
safe environs of constitutionality. Of course, where the law clearly and palpably
transgresses the hallowed domain of the organic law, it must be struck down on sight
lest the positive commands of the fundamental law be unduly eroded.
Verily, the onerous task of rebutting the presumption weighs heavily on the party
challenging the validity of the statute. He must demonstrate beyond any tinge of
doubt that there is indeed an infringement of the constitution, for absent such a
showing, there can be no finding of unconstitutionality. A doubt, even if well-
founded, will hardly suffice. As tersely put by Justice Malcolm, "To doubt is to
sustain."5 And petitioner has miserably failed in the instant case to discharge his
burden and overcome the presumption of constitutionality of the Plunder Law.
As it is written, the Plunder Law contains ascertainable standards and well-defined
parameters which would enable the accused to determine the nature of his violation.
Section 2 is sufficiently explicit in its description of the acts, conduct and conditions
required or forbidden, and prescribes the elements of the crime with reasonable
certainty and particularity. Thus -
1. That the offender is a public officer who acts by himself or in connivance
with members of his family, relatives by affinity or consanguinity, business
associates, subordinates or other persons;
2. That he amassed, accumulated or acquired ill-gotten wealth through a
combination or series of the following overt or criminal acts: (a) through
misappropriation, conversion, misuse, or malversation of public funds or
raids on the public treasury; (b) by receiving, directly or indirectly, any
commission, gift, share, percentage, kickback or any other form of pecuniary
benefits from any person and/or entity in connection with any government
contract or project or by reason of the office or position of the public officer;
(c) by the illegal or fraudulent conveyance or disposition of assets belonging
to the National Government or any of its subdivisions, agencies or
instrumentalities of Government owned or controlled corporations or their
subsidiaries; (d) by obtaining, receiving or accepting directly or indirectly any
shares of stock, equity or any other form of interest or participation including
the promise of future employment in any business enterprise or undertaking;
(e) by establishing agricultural, industrial or commercial monopolies or other
combinations and/or implementation of decrees and orders intended to
benefit particular persons or special interests; or (f) by taking advantage of
official position, authority, relationship, connection or influence to unjustly
enrich himself or themselves at the expense and to the damage and prejudice
of the Filipino people and the Republic of the Philippines; and,
3. That the aggregate amount or total value of the ill-gotten wealth
amassed, accumulated or acquired is at least ₱50,000,000.00.
As long as the law affords some comprehensible guide or rule that would inform
those who are subject to it what conduct would render them liable to its penalties,
its validity will be sustained. It must sufficiently guide the judge in its application; the
counsel, in defending one charged with its violation; and more importantly, the
accused, in identifying the realm of the proscribed conduct. Indeed, it can be
understood with little difficulty that what the assailed statute punishes is the act of a
public officer in amassing or accumulating ill-gotten wealth of at least ₱50,000,000.00
through a series or combination of acts enumerated in Sec. 1, par. (d), of the Plunder
Law.
In fact, the amended Information itself closely tracks the language of the law,
indicating with reasonable certainty the various elements of the offense which
petitioner is alleged to have committed:
"The undersigned Ombudsman, Prosecutor and OIC-Director, EPIB, Office of the
Ombudsman, hereby accuses former PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES, Joseph Ejercito Estrada, a.k.a. 'ASIONG SALONGA' and a.k.a. 'JOSE
VELARDE,' together with Jose 'Jinggoy' Estrada, Charlie 'Atong' Ang, Edward Serapio,
Yolanda T. Ricaforte, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos
Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and John DOES & Jane Does, of the crime
of Plunder, defined and penalized under R.A. No. 7080, as amended by Sec. 12 of R.A.
No. 7659, committed as follows:
That during the period from June, 1998 to January 2001, in the Philippines, and within
the jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, THEN A
PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, by
himself AND/OR in CONNIVANCE/CONSPIRACY with his co-accused, WHO ARE
MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR CONSANGUINITY, BUSINESS
ASSOCIATES, SUBORDINATES AND/OR OTHER PERSONS, BY TAKING UNDUE
ADVANTAGE OF HIS OFFICIAL POSITION, AUTHORITY, RELATIONSHIP,
CONNECTION, OR INFLUENCE, did then and there willfully, unlawfully and criminally
amass, accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, 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 (₱4,097,804,173.17), more or less, THEREBY UNJUSTLY
ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE DAMAGE OF
THE FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES, through ANY OR
A combination OR Aseries of overt OR criminal acts, OR SIMILAR SCHEMES OR
MEANS, described as follows:
(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES,
MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE
MILLION PESOS (₱545,000,000.00), MORE OR LESS, FROM ILLEGAL
GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR
ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connection
with co-accused CHARLIE 'ATONG' ANG, Jose 'Jinggoy' Estrada, Yolanda T.
Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES, in
consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING;
(b) by DIVERTING, RECEIVING, misappropriating,
converting OR misusing DIRECTLY OR INDIRECTLY, for HIS OR THEIR
PERSONAL gain and benefit, public funds in the amount of ONE HUNDRED
THIRTY MILLION PESOS (₱130,000,000.00), more or less, representing a
portion of the TWO HUNDRED MILLION PESOS (₱200,000,000.00) 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, FOR HIS PERSONAL GAIN AND
BENEFIT, the Government Service Insurance System (GSIS) TO PURCHASE
351,878,000 SHARES OF STOCKS, MORE OR LESS, and the Social Security
System (SSS), 329,855,000 SHARES OF STOCK, MORE OR LESS, OF THE BELLE
CORPORATION IN THE AMOUNT OF MORE OR LESS ONE BILLION ONE
HUNDRED TWO MILLION NINE HUNDRED SIXTY FIVE THOUSAND SIX
HUNDRED SEVEN PESOS AND FIFTY CENTAVOS (₱1,102,965,607.50) AND
MORE OR LESS SEVEN HUNDRED FORTY FOUR MILLION SIX HUNDRED
TWELVE THOUSAND AND FOUR HUNDRED FIFTY PESOS (₱744,612,450.00),
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
(₱1,847,578,057.50); AND BY COLLECTING OR RECEIVING, DIRECTLY OR
INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES AND
JANE DOES, COMMISSIONS OR PERCENTAGES BY REASON OF SAID
PURCHASES OF SHARES OF STOCK IN THE AMOUNT OF ONE HUNDRED
EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND PESOS
(₱189,700,000.00) MORE OR LESS, FROM THE BELLE CORPORATION
WHICH BECAME PART OF THE DEPOSIT IN THE EQUITABLE-PCI BANK
UNDER THE ACCOUNT NAME 'JOSE VELARDE;'
(d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES,
PERCENTAGES, KICKBACKS, OR ANY FORM OF PECUNIARY BENEFITS, IN
CONNIVANCE WITH JOHN DOES AND JANE DOES, in the amount of MORE
OR LESS THREE BILLION TWO HUNDRED THIRTY THREE MILLION ONE
HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND
SEVENTEEN CENTAVOS (₱3,233,104,173.17) AND DEPOSITING THE SAME
UNDER HIS ACCOUNT NAME 'JOSE VELARDE' AT THE EQUITABLE-PCI
BANK."
We discern nothing in the foregoing that is vague or ambiguous - as there is obviously
none - that will confuse petitioner in his defense. Although subject to proof, these
factual assertions clearly show that the elements of the crime are easily understood
and provide adequate contrast between the innocent and the prohibited acts. Upon
such unequivocal assertions, petitioner is completely informed of the accusations
against him as to enable him to prepare for an intelligent defense.
Petitioner, however, bewails the failure of the law to provide for the statutory
definition of the terms "combination" and "series" in the key phrase "a combination
or series of overt or criminal acts" found in Sec. 1, par. (d), and Sec. 2, and the word
"pattern" in Sec. 4. These omissions, according to petitioner, render the Plunder Law
unconstitutional for being impermissibly vague and overbroad and deny him the right
to be informed of the nature and cause of the accusation against him, hence, violative
of his fundamental right to due process.
The rationalization seems to us to be pure sophistry. A statute is not rendered
uncertain and void merely because general terms are used therein, or because of the
employment of terms without defining them;6 much less do we have to define every
word we use. Besides, there is no positive constitutional or statutory command
requiring the legislature to define each and every word in an enactment. Congress is
not restricted in the form of expression of its will, and its inability to so define the
words employed in a statute will not necessarily result in the vagueness or ambiguity
of the law so long as the legislative will is clear, or at least, can be gathered from the
whole act, which is distinctly expressed in the Plunder Law.
Moreover, it is a well-settled principle of legal hermeneutics that words of a statute
will be interpreted in their natural, plain and ordinary acceptation and
signification,7 unless it is evident that the legislature intended a technical or special
legal meaning to those words.8 The intention of the lawmakers - who are, ordinarily,
untrained philologists and lexicographers - to use statutory phraseology in such a
manner is always presumed. Thus, Webster's New Collegiate Dictionary contains the
following commonly accepted definition of the words "combination" and "series:"
Combination - the result or product of combining; the act or process of combining. REP. ISIDRO: So in other words, that’s it. When we say combination, we mean, two
To combine is to bring into such close relationship as to obscure individual characters. different acts. It cannot be a repetition of the same act.

Series - a number of things or events of the same class coming one after another in
spatial and temporal succession.
That Congress intended the words "combination" and "series" to be understood in
their popular meanings is pristinely evident from the legislative deliberations on the
bill which eventually became RA 7080 or the Plunder Law:
DELIBERATIONS OF THE BICAMERAL COMMITTEE ON JUSTICE, 7 May 1991
REP. GARCIA: That be referred to series, yeah.
REP. ISIDRO: No, no. Supposing one act is repeated, so there are two.
REP. GARCIA: A series.
REP. ISIDRO: That’s not series. Its a combination. Because when we say combination
or series, we seem to say that two or more, di ba?

REP. ISIDRO: I am just intrigued again by our definition of plunder. We say THROUGH REP. GARCIA: Yes, this distinguishes it really from ordinary crimes. That is why, I said,
A COMBINATION OR SERIES OF OVERT OR CRIMINAL ACTS AS MENTIONED IN that is a very good suggestion because if it is only one act, it may fall under ordinary
SECTION ONE HEREOF. Now when we say combination, we actually mean to say, if crime but we have here a combination or series of overt or criminal acts. So x x x x
there are two or more means, we mean to say that number one and two or number
one and something else are included, how about a series of the same act? For REP. GARCIA: Series. One after the other eh di....
example, through misappropriation, conversion, misuse, will these be included also?
SEN. TANADA: So that would fall under the term "series?"
REP. GARCIA: Yeah, because we say a series.
REP. GARCIA: Series, oo.
REP. ISIDRO: Series.
REP. ISIDRO: Now, if it is a combination, ano, two misappropriations....
REP. GARCIA: Yeah, we include series.
REP. GARCIA: Its not... Two misappropriations will not be combination. Series.
REP. ISIDRO: But we say we begin with a combination.
REP. ISIDRO: So, it is not a combination?
REP. GARCIA: Yes.
REP. GARCIA: Yes.
REP. ISIDRO: When we say combination, it seems that -
REP. ISIDRO: When you say combination, two different?
REP. GARCIA: Two.
REP. GARCIA: Yes.
REP. ISIDRO: Not only two but we seem to mean that two of the enumerated means
not twice of one enumeration.
SEN. TANADA: Two different.

REP. GARCIA: No, no, not twice.

REP. ISIDRO: Two different acts.

REP. ISIDRO: Not twice?

REP. GARCIA: For example, ha...

REP. GARCIA: Yes. Combination is not twice - but combination, two acts.
REP. ISIDRO: Now a series, meaning, repetition...
DELIBERATIONS ON SENATE BILL NO. 733, 6 June 1989
SENATOR MACEDA: In line with our interpellations that sometimes "one" or maybe
even "two" acts may already result in such a big amount, on line 25, would the
Sponsor consider deleting the words "a series of overt or," to read, therefore: "or
conspiracy COMMITTED by criminal acts such as." Remove the idea of necessitating
"a series." Anyway, the criminal acts are in the plural.
SENATOR 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 enumeration provided in Sec. 1, par. (d), e.g.,
raids on the public treasury in Sec. 1, par. (d), subpar. (1), and fraudulent conveyance
of assets belonging to the National Government under Sec. 1, par. (d), subpar. (3).
On the other hand, to constitute a series" there must be two (2) or more overt or
criminal acts falling under the same category of enumeration found in Sec. 1, par. (d),
say, misappropriation, malversation and raids on the public treasury, all of which fall
under Sec. 1, par. (d), subpar. (1). Verily, had the legislature intended a technical or
distinctive meaning for "combination" and "series," it would have taken greater pains
in specifically providing for it in the law.
As for "pattern," we agree with the observations of the Sandiganbayan 9 that this term
is sufficiently defined in Sec. 4, in relation to Sec. 1, par. (d), and Sec. 2 -
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 scheme' indicates a 'general plan of action or
method' which the principal accused and public officer and others conniving with him
follow to achieve the aforesaid common goal. In the alternative, if there is no such
overall scheme or where the schemes or methods used by multiple accused vary, the
overt or criminal acts must form part of a conspiracy to attain a common goal.
Hence, it cannot plausibly be contended that the law does not give a fair warning and
sufficient notice of what it seeks to penalize. Under the circumstances, petitioner's
reliance on the "void-for-vagueness" doctrine is manifestly misplaced. The doctrine
has been formulated in various ways, but is most commonly stated to the effect that
a statute establishing a criminal offense must define the offense with sufficient
definiteness that persons of ordinary intelligence can understand what conduct is
prohibited by the statute. It can only be invoked against that specie of legislation that
is utterly vague on its face, i.e., that which cannot be clarified either by a saving clause
or by construction.
A statute or act may be said to be vague when it lacks comprehensible standards that
men of common intelligence must necessarily guess at its meaning and differ in its
application. In such instance, the statute is repugnant to the Constitution in two (2)
respects - it violates due process for failure to accord persons, especially the parties
targeted by it, fair notice of what conduct to avoid; and, it leaves law enforcers
unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of
the Government muscle.10 But the doctrine does not apply as against legislations that
are merely couched in imprecise language but which nonetheless specify a standard
though defectively phrased; or to those that are apparently ambiguous yet fairly
applicable to certain types of activities. The first may be "saved" by proper
construction, while no challenge may be mounted as against the second whenever
directed against such activities.11 With more reason, the doctrine cannot be invoked
where the assailed statute is clear and free from ambiguity, as in this case.
The test in determining whether a criminal statute is void for uncertainty is whether
the language conveys a sufficiently definite warning as to the proscribed conduct
when measured by common understanding and practice. 12It 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 meaning and differ as to its application, violates the first
essential of due process of law."13 The overbreadth doctrine, on the other hand,
decrees that "a governmental purpose may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected freedoms." 14
A facial challenge is allowed to be made to a vague statute and to one which is
overbroad because of possible "chilling effect" upon protected speech. The theory is
that "[w]hen statutes regulate or proscribe speech and no readily apparent
construction suggests itself as a vehicle for rehabilitating the statutes in a single
prosecution, the transcendent value to all society of constitutionally protected
expression is deemed to justify allowing attacks on overly broad statutes with no
requirement that the person making the attack demonstrate that his own conduct
could not be regulated by a statute drawn with narrow specificity." 15 The possible
harm to society in permitting some unprotected speech to go unpunished is
outweighed by the possibility that the protected speech of others may be deterred
and perceived grievances left to fester because of possible inhibitory effects of overly
broad statutes.
This rationale does not apply to penal statutes. Criminal statutes have general in
terrorem effect resulting from their very existence, and, if facial challenge is allowed
for this reason alone, the State may well be prevented from enacting laws against
socially harmful conduct. In the area of criminal law, the law cannot take chances as
in the area of free speech.
The overbreadth and vagueness doctrines then have special application only to free
speech cases. They are inapt for testing the validity of penal statutes. As the U.S.
Supreme Court put it, in an opinion by Chief Justice Rehnquist, "we have not
recognized an 'overbreadth' doctrine outside the limited context of the First
Amendment."16 In Broadrick v. Oklahoma,17 the Court ruled that "claims of facial
overbreadth have been entertained in cases involving statutes which, by their terms,
seek to regulate only spoken words" and, again, that "overbreadth claims, if
entertained at all, have been curtailed when invoked against ordinary criminal laws
that are sought to be applied to protected conduct." For this reason, it has been held
that "a facial challenge to a legislative act is the most difficult challenge to mount
successfully, since the challenger must establish that no set of circumstances exists
under which the Act would be valid."18 As for the vagueness doctrine, it is said that a
litigant may challenge a statute on its face only if it is vague in all its possible
applications. "A plaintiff who engages in some conduct that is clearly proscribed
cannot complain of the vagueness of the law as applied to the conduct of others." 19
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical
tools developed for testing "on their faces" statutes in free speech cases or, as they
are called in American law, First Amendment cases. They cannot be made to do
service when what is involved is a criminal statute. With respect to such statute, the
established rule is that "one to whom application of a statute is constitutional will
not be heard to attack the statute on the ground that impliedly it might also be taken
as applying to other persons or other situations in which its application might be
unconstitutional."20 As has been pointed out, "vagueness challenges in the First
Amendment context, like overbreadth challenges typically produce facial
invalidation, while statutes found vague as a matter of due process typically are
invalidated [only] 'as applied' to a particular defendant."21 Consequently, there is no
basis for petitioner's claim that this Court review the Anti-Plunder Law on its face and
in its entirety.
Indeed, "on its face" invalidation of statutes results in striking them down entirely on
the ground that they might be applied to parties not before the Court whose activities
are constitutionally protected.22 It constitutes a departure from the case and
controversy requirement of the Constitution and permits decisions to be made
without concrete factual settings and in sterile abstract contexts.23 But, as the U.S.
Supreme Court pointed out in Younger v. 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 mentioned if only to
illustrate and emphasize the point that courts are loathed to declare a statute void
for uncertainty unless the law itself is so imperfect and deficient in its details, and is
susceptible of no reasonable construction that will support and give it effect. In that
case, petitioners Gallego and Agoncillo challenged the constitutionality of Sec. 3, par.
(e), of The Anti-Graft and Corrupt Practices Actfor being vague. Petitioners posited,
among others, that the term "unwarranted" is highly imprecise and elastic with no
common law meaning or settled definition by prior judicial or administrative
precedents; that, for its vagueness, Sec. 3, par. (e), violates due process in that it does
not give fair warning or sufficient notice of what it seeks to penalize. Petitioners
further argued that the Information charged them with three (3) distinct offenses, to
wit: (a) giving of "unwarranted" benefits through manifest partiality; (b) giving of
"unwarranted" benefits through evident bad faith; and, (c) giving of "unwarranted"
benefits through gross inexcusable negligence while in the discharge of their official
function and that their right to be informed of the nature and cause of the accusation
against them was violated because they were left to guess which of the three (3)
offenses, if not all, they were being charged and prosecuted.
In dismissing the petition, this Court held that Sec. 3, par. (e), of The Anti-Graft and
Corrupt Practices Act does not suffer from the constitutional defect of vagueness. The
phrases "manifest partiality," "evident bad faith," and "gross and inexcusable
negligence" merely describe the different modes by which the offense penalized in
Sec. 3, par. (e), of the statute may be committed, and the use of all these phrases in
the same Information does not mean that the indictment charges three (3) distinct
offenses.
The word 'unwarranted' is not uncertain. It seems lacking adequate or official
support; unjustified; unauthorized (Webster, Third International Dictionary, p. 2514);
or without justification or adequate reason (Philadelphia Newspapers, Inc. v. US
Dept. of Justice, C.D. Pa., 405 F. Supp. 8, 12, cited in Words and Phrases, Permanent
Edition, Vol. 43-A 1978, Cumulative Annual Pocket Part, p. 19).
The assailed provisions of the Anti-Graft and Corrupt Practices Act consider a corrupt
practice and make unlawful the act of the public officer in:
x x x or giving any private party any unwarranted benefits, advantage or preference
in the discharge of his official, administrative or judicial functions through manifest
partiality, evident bad faith or gross inexcusable negligence, x x x (Section 3 [e], Rep.
Act 3019, as amended).
It is not at all difficult to comprehend that what the aforequoted penal provisions
penalize is the act of a public officer, in the discharge of his official, administrative or
judicial functions, in giving any private party benefits, advantage or preference which
is unjustified, unauthorized or without justification or adequate reason, through
manifest partiality, evident bad faith or gross inexcusable negligence.
In other words, this Court found that there was nothing vague or ambiguous in the
use of the term "unwarranted" in Sec. 3, par. (e), of The Anti-Graft and Corrupt
Practices Act, which was understood in its primary and general acceptation.
Consequently, in that case, petitioners' objection thereto was held inadequate to
declare the section unconstitutional.
On the second issue, petitioner advances the highly stretched theory that Sec. 4 of
the Plunder Law circumvents the immutable obligation of the prosecution to prove
beyond reasonable doubt the predicate acts constituting the crime of plunder when
it requires only proof of a pattern of overt or criminal acts showing unlawful scheme
or conspiracy -
SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall
not be necessary to prove each and every criminal act done by the accused in
furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten
wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or
criminal acts indicative of the overall unlawful scheme or conspiracy.
The running fault in this reasoning is obvious even to the simplistic mind. In a criminal
prosecution for plunder, as in all other crimes, the accused always has in his favor the
presumption of innocence which is guaranteed by the Bill of Rights, and unless the
State succeeds in demonstrating by proof beyond reasonable doubt that culpability
lies, the accused is entitled to an acquittal.29 The use of the "reasonable doubt"
standard is indispensable to command the respect and confidence of the community
in the application of criminal law. It is critical that the moral force of criminal law be
not diluted by a standard of proof that leaves people in doubt whether innocent men
are being condemned. It is also important in our free society that every individual
going about his ordinary affairs has confidence that his government cannot adjudge
him guilty of a criminal offense without convincing a proper factfinder of his guilt with
utmost certainty. This "reasonable doubt" standard has acquired such exalted stature
in the realm of constitutional law as it gives life to the Due Process Clause which
protects the accused against conviction except upon proof beyond reasonable doubt
of every fact necessary to constitute the crime with which he is charged. 30 The
following exchanges between Rep. Rodolfo Albano and Rep. Pablo Garcia on this
score during the deliberations in the floor of the House of Representatives are
elucidating -
DELIBERATIONS OF THE HOUSE OF REPRESENTATIVES ON RA 7080, 9 October 1990
MR. ALBANO: Now, Mr. Speaker, it is also elementary in our criminal law that what is
alleged in the information must be proven beyond reasonable doubt. If we will prove
only one act and find him guilty of the other acts enumerated in the information, does
that not work against the right of the accused especially so if the amount committed,
say, by falsification is less than ₱100 million, but the totality of the crime committed
is ₱100 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 ₱50,000 and in the crime of extortion, he was only able to
accumulate ₱1 million. Now, when we add the totality of the other acts as required
under this bill through the interpretation on the rule of evidence, it is just one single
act, so how can we now convict him?
MR. GARCIA: With due respect, Mr. Speaker, for purposes of proving an essential
element of the crime, there is a need to prove that element beyond reasonable doubt.
For example, one essential element of the crime is that the amount involved is ₱100
million. Now, in a series of defalcations and other acts of corruption in the
enumeration the total amount would be ₱110 or ₱120 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 ₱100 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 ₱50,000,000.00. 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 ₱50,000,000.00.31
A reading of Sec. 2 in conjunction with Sec. 4, brings us to the logical conclusion that
"pattern of overt or criminal acts indicative of the overall unlawful scheme or
conspiracy" inheres in the very acts of accumulating, acquiring or amassing hidden
wealth. Stated otherwise, such pattern arises where the prosecution is able to prove
beyond reasonable doubt the predicate acts as defined in Sec. 1, par. (d). Pattern is
merely a by-product of the proof of the predicate acts. This conclusion is consistent
with reason and common sense. There would be no other explanation for a
combination or series of
overt or criminal acts to stash ₱50,000,000.00 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 have to go that far by
applying Section 4?
ATTY. AGABIN: Your Honor, our thinking is that Section 4 contains a very important
element of the crime of plunder and that cannot be avoided by the prosecution.32
We do not subscribe to petitioner's stand. Primarily, all the essential elements of
plunder can be culled and understood from its definition in Sec. 2, in relation to Sec.
1, par. (d), and "pattern" is not one of them. Moreover, the epigraph and opening
clause of Sec. 4 is clear and unequivocal:
SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder 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 ciminal 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 serious illegal detention for ransom resulting in the death of the victim or the
victim is raped, tortured, or subjected to dehumanizing acts; destructive arson
resulting in death; and drug offenses involving minors or resulting in the death of the
victim in the case of other crimes; as well as murder, rape, parricide, infanticide,
kidnapping and serious illegal detention, where the victim is detained for more than
three days or serious physical injuries were inflicted on the victim or threats to kill
him were made or the victim is a minor, robbery with homicide, rape or intentional
mutilation, destructive arson, and carnapping where the owner, driver or occupant
of the carnapped vehicle is killed or raped, which are penalized by reclusion perpetua
to death, are clearly heinous by their very nature.
There are crimes, however, in which the abomination lies in the significance and
implications of the subject criminal acts in the scheme of the larger socio-political and
economic context in which the state finds itself to be struggling to develop and
provide for its poor and underprivileged masses. Reeling from decades of corrupt
tyrannical rule that bankrupted the government and impoverished the population,
the Philippine Government must muster the political will to dismantle the culture of
corruption, dishonesty, greed and syndicated criminality that so deeply entrenched
itself in the structures of society and the psyche of the populace. [With the
government] terribly lacking the money to provide even the most basic services to its
people, any form of misappropriation or misapplication of government funds
translates to an actual threat to the very existence of government, and in turn, the
very survival of the people it governs over. Viewed in this context, no less heinous
are the effects and repercussions of crimes like qualified bribery, destructive arson
resulting in death, and drug offenses involving government officials, employees or
officers, that their perpetrators must not be allowed to cause further destruction and
damage to society.
The legislative declaration in R.A. No. 7659 that plunder is a heinous offense implies
that it is a malum in se. For when the acts punished are inherently immoral or
inherently wrong, they are mala in 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.
Blg. 22) or of an ordinance against jaywalking, without regard to the inherent
wrongness of the acts.
To clinch, petitioner likewise assails the validity of RA 7659, the amendatory law of
RA 7080, on constitutional grounds. Suffice it to say however that it is now too late
in the day for him to resurrect this long dead issue, the same having been eternally
consigned by People v. Echegaray38 to the archives of jurisprudential history. The
declaration of this Court therein that RA 7659 is constitutionally valid stands as a
declaration of the State, and becomes, by necessary effect, assimilated in the
Constitution now as an integral part of it.
Our nation has been racked by scandals of corruption and obscene profligacy of
officials in high places which have shaken its very foundation. The anatomy of graft
and corruption has become more elaborate in the corridors of time as unscrupulous
people relentlessly contrive more and more ingenious ways to bilk the coffers of the
government. Drastic and radical measures are imperative to fight the increasingly
sophisticated, extraordinarily methodical and economically catastrophic looting of
the national treasury. Such is the Plunder Law, especially designed to disentangle
those ghastly tissues of grand-scale corruption which, if left unchecked, will spread
like a malignant tumor and ultimately consume the moral and institutional fiber of
our nation. The Plunder Law, indeed, is a living testament to the will of the legislature
to ultimately eradicate this scourge and thus secure society against the avarice and
other venalities in public office.

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

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

SO ORDERED.

Buena, and De Leon, Jr., JJ., concur.

Davide, Jr. C.J., Melo, Quisumbing, JJ., join concurring opinion of J. Mendoza.
Puno, Vitug, JJ., concurred and joins J. Mendoza's concurring opinion.
Kapunan, Pardo, Sandoval-Gutierrez, Ynares-Santiago, JJ., see dissenting opinion.
Mendoza, J., please see concurring opinion.
Panganiban J., please see separate concurring opinion.
Carpio, J., no part. Was one of the complainants before Ombudsman.
G.R. No. 152259 July 29, 2004
ALFREDO T. ROMUALDEZ, petitioner,
vs.
THE HONORABLE SANDIGANBAYAN (Fifth Division) and the PEOPLE of the
PHILIPPINES, respondents.
DECISION
PANGANIBAN, J.:
Repetitive motions to invalidate or summarily terminate a criminal indictment prior
to plea and trial, however they may be named or identified -- whether as a motion to
quash or motion to dismiss or by any other nomenclature -- delay the administration
of justice and unduly burden the court system. Grounds not included in the first of
such repetitive motions are generally deemed waived and can no longer be used as
bases of similar motions subsequently filed.
Section 5 of the Anti-Graft Law is constitutional. It penalizes certain presidential
relatives who "intervene, directly or indirectly, in any business, transaction, contract
or application with the Government." This provision is not vague or "impermissibly
broad," because it can easily be understood with the use of simple statutory
construction. Neither may the constitutionality of a criminal statute such as this be
challenged on the basis of the "overbreadth" and the "void-for-vagueness" doctrines,
which apply only to free-speech cases.
The Case
Before us is a Petition for Certiorari1 under Rule 65 of the Rules of Court, seeking to
set aside the November 20, 20012 and the March 1, 20023 Resolutions of the
Sandiganbayan in Criminal Case No. 13736. The first Resolution disposed thus:
"WHEREFORE, for lack of merit, the Motion to Dismiss is hereby DENIED. The
arraignment of the accused and the pre-trial of the case shall proceed as
scheduled."4
The second Resolution denied reconsideration.
The Facts
The facts of the case are narrated by the Sandiganbayan as follows:
"[The People of the Philippines], through the Presidential Commission on
Good Government (PCGG), filed on July 12, 1989 an information before [the
anti-graft court] charging the accused [with] violation of Section 5, Republic
Act No. 3019,5 as amended. The Information reads:
'That on or about and during the period from July 16, 1975 to July
29, 1975, in Metro Manila, Philippines, and within the jurisdiction
of [the Sandiganbayan], said [petitioner], brother-in-law of
Ferdinand E. Marcos, former President of the Philippines, and
therefore, related to the latter by affinity within the third civil
degree, did then and there wil[l]fully and unlawfully, and with
evident bad faith, for the purpose of promoting his self-interested
[sic] and/or that of others, intervene directly or indirectly, in a
contract between the National Shipyard and Steel Corporation
(NASSCO), a government-owned and controlled corporation and
the Bataan Shipyard and Engineering Company (BASECO), a private
corporation, the majority stocks of which is owned by former
President Ferdinand E. Marcos, whereby the NASSCO sold,
transferred and conveyed to the BASECO its ownership and all its
titles and interests over all equipment and facilities including
structures, buildings, shops, quarters, houses, plants and
expendable and semi-expendable assets, located at the Engineer
Island known as the Engineer Island Shops including some of its
equipment and machineries from Jose Panganiban, Camarines
Norte needed by BASECO in its shipbuilding and ship repair
program for the amount of P5,000,000.00.
'Contrary to law.'
"On December 27, 1996, the accused filed his first 'MOTION TO DISMISS
AND TO DEFER ARRAIGNMENT' claiming that no valid preliminary
investigation was conducted in the instant case. He asserts that if a
preliminary investigation could be said to have been conducted, the same
was null and void having been undertaken by a biased and partial
investigative body.
"On January 9, 1997, [the Sandiganbayan], through the First Division, issued
an order giving the accused fifteen days to file a Motion for Reinvestigation
with the Office of the Special Prosecutor.
"[Petitioner] questioned said order before the Supreme Court via a petition
for Certiorari and Prohibition with prayer for temporary restraining order.
On January 21, 1998, the Supreme Court dismissed the petition for failure
to show that [the Sandiganbayan] committed grave abuse of discretion in
issuing the assailed order.
"On November 9, 1998, the [petitioner] filed with the Office of the Special
Prosecutor a Motion to Quash.
"On September 22, 1999, x x x Special Prosecution Officer (SPO) III Victorio
U. Tabanguil, manifested that the prosecution had already concluded the
reinvestigation of the case. He recommended the dismissal of the instant
case. Both the Deputy Special Prosecutor and the Special Prosecutor
approved the recommendation. However, Ombudsman Aniano A. Desierto
disagreed and directed the prosecutors to let the [petitioner] present his
evidence in Court.
"Subsequently, [petitioner] filed on October 8, 1999 his second 'MOTION TO
QUASH AND TO DEFER ARRAIGNMENT'.
"On February 9, 2000, the [Sandiganbayan] denied the motion for lack of
merit.
"On June 19, 2001, [the] accused filed a 'MOTION FOR LEAVE TO FILE
MOTION TO DISMISS'. On June 29, 2001, the [Sandiganbayan] admitted the
motion and admitted the attached (third) Motion to Dismiss.
"The [Motion to Dismiss] raise[d] the following grounds:
'I. THE CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW OF
[PETITIONER] WAS VIOLATED DURING THE PRELIMINARY
INVESTIGATION STAGE IN THE FOLLOWING WAYS:
'A. NO VALID PRELIMINARY INVESTIGATION WAS CONDUCTED IN
THE INSTANT CASE; AND
'B. THE PRELIMINARY INVESTIGATION WAS CONDUCTED BY A
BIASED AND PARTIAL INVESTIGATOR
'II. THE CONSTITUTIONAL RIGHT OF [PETITIONER] TO BE INFORMED
OF THE NATURE AND CAUSE OF THE ACCUSATION AGAINST HIM
WAS VIOLATED
'III. PURSUANT TO ARTICLE VII, SECTION 17 OF THE 1973
CONSTITUTION, [PETITIONER] IS IMMUNE FROM CRIMINAL
PROSECUTION
'IV. THE CRIMINAL ACTION OR LIABILITY HAS BEEN EXTINGUISHED
BY PRESCRIPTION'"6
Ruling of the Sandiganbayan
The Sandiganbayan explained that all the grounds invoked by petitioner, except the
third one, had already been raised by him and passed upon in its previous
Resolutions.7 In resolving the third ground, the anti-graft court pointed out that
Section 17 of the 1973 Constitution became effective only in 1981 when the basic law
was amended. Since his alleged illegal intervention had been committed on or about
1975, the amended provision was inapplicable to him. 8
In denying the Motion for Reconsideration filed by petitioner, the Sandiganbayan
passed upon the other grounds he had raised. It ruled that his right to a preliminary
investigation was not violated, because he had been granted a reinvestigation. 9 It
further held that his right to be informed of the nature and cause of the accusation
was not trampled upon, either, inasmuch as the Information had set forth the
essential elements of the offense charged. 10
Hence, this Petition.11
The Issues
In his Memorandum, petitioner assigns the following errors for our consideration:
"Whether or not the Honorable Sandiganbayan erred and gravely abused its
discretion amounting to lack of, or in excess of jurisdiction –
I. In not dismissing and/or quashing Criminal Case No. 13736 despite clear
and incontrovertible evidence that:
A. Section 5 of Republic Act No. 3019 is unconstitutional because
its vagueness violates the due process right of an individual to be
informed of the nature and the cause of the accusation against him;
B. Section 5 of Republic Act No. 3019 is unconstitutional because it
violates the due process right of an individual to be presumed
innocent until the contrary is proved;
 C. The constitutional right of petitioner x x x to be informed of the quash.13 We note that the Petition for Certiorari before us challenges the denial of his
nature and the cause of the accusation against him was violated; original, not his Supplemental, Motion to Dismiss.

D. The constitutional right to due process of law of petitioner x x x Upon the denial of his original Motion to Quash on February 9, 2000, petitioner could
was violated during the preliminary investigation stage in the have filed a motion for reconsideration of the denial. Had reconsideration been
following ways: turned down, the next proper remedy would have been either (1) a petition for
certiorari14 -- if there was grave abuse of discretion -- which should be filed within 60
[i] No valid preliminary investigation was con-ducted for days from notice of the assailed order;15 or (2) to proceed to trial without prejudice
Criminal Case No. 13736; and to his right, if final judgment is rendered against him, to raise the same questions
before the proper appellate court.16 But instead of availing himself of these remedies,
[ii] The preliminary investigation was conducted by a he filed a "Motion to Dismiss" on June 19, 2001.
biased and partial investigator.
Impropriety of
E. The criminal action or liability has been extinguished by Repetitive Motions
prescription; and
There is no substantial distinction between a "motion to quash" and a "motion to
F. Pursuant to Article VII, Section 17 of the 1973 Constitution, dismiss." Both pray for an identical relief, which is the dismissal of the case. Such
petitioner x x x is immune from criminal prosecution. motions are employed to raise preliminary objections, so as to avoid the necessity of
proceeding to trial. A motion to quash is generally used in criminal proceedings to
annul a defective indictment. A motion to dismiss, the nomenclature ordinarily used
And
in civil proceedings, is aimed at summarily defeating a complaint. Thus, our Rules of
Court use the term "motion to quash" in criminal, 17 and "motion to dismiss" in civil,
II. In light of the foregoing, in denying petitioner['s] x x x right to equal
proceedings.18
protection of the laws."12
In the present case, however, both the "Motion to Quash" and the "Motion to
Simply stated, the issues are as follows: (1) whether Section 5 of Republic Act 3019 is
Dismiss" are anchored on basically the same grounds and pray for the same relief.
unconstitutional; (2) whether the Information is vague; (3) whether there was a valid
The hairsplitting distinction posited by petitioner does not really make a difference.
preliminary investigation; (4) whether the criminal action or liability has been
extinguished by prescription; and (5) whether petitioner is immune from criminal
By filing a Motion to Dismiss, petitioner submitted in effect a prohibited second
prosecution under then Section 17 of Article VII of the 1973 Constitution.
motion to quash. A party is not permitted to raise issues, whether similar or different,
by installment. The Rules abhor repetitive motions. Otherwise, there would be no
The Court's Ruling
end to preliminary objections, and trial would never commence. A second motion to
quash delays the administration of justice and unduly burdens the courts. Moreover,
The Petition has no merit. Rule 117 provides that grounds not raised in the first motion to quash are generally
deemed waived.19 Petitioner's "Motion to Dismiss" violates this rule.
First Issue:
Constitutionality of Section 5, Constitutionality of
Republic Act 3019 the Challenged Provision

Petitioner challenged the constitutionality of Section 5 of RA 3019 for the first time If only for the foregoing procedural lapses, the Petition deserves to be dismissed
in the Sandiganbayan through a Supplemental Motion to Dismiss. Attached to his outright. However, given the importance of this case in curtailing graft and
December 7, 2001 Motion for Reconsideration of the Order denying his Motion to corruption, the Court will nevertheless address the other issues on their merit.
Dismiss was this Supplemental Motion which was, in effect, his third motion to Petitioner challenges the validity of Section 5 of Republic Act 3019, a penal statute,
on the ground that the act constituting the offense is allegedly vague and
"impermissibly broad."
It is best to stress at the outset that the overbreadth 20 and the vagueness21 doctrines
have special application only to free-speech cases. They are not appropriate for
testing the validity of penal statutes. Mr. Justice Vicente V. Mendoza explained the
reason as follows:
"A facial challenge is allowed to be made to a vague statute and to one which
is overbroad because of possible 'chilling effect' upon protected speech. The
theory is that '[w]hen statutes regulate or proscribe speech and no readily
apparent construction suggests itself as a vehicle for rehabilitating the
statutes in a single prosecution, the transcendent value to all society of
constitutionally protected expression is deemed to justify allowing attacks
on overly broad statutes with no requirement that the person making the
attack demonstrate that his own conduct could not be regulated by a statute
drawn with narrow specificity.' The possible harm to society in permitting
some unprotected speech to go unpunished is outweighed by the possibility
that the protected speech of others may be deterred and perceived
grievances left to fester because of possible inhibitory effects of overly
broad statutes.
This rationale does not apply to penal statutes. Criminal statutes have
general in terrorem effect resulting from their very existence, and, if facial
challenge is allowed for this reason alone, the State may well be prevented
from enacting laws against socially harmful conduct. In the area of criminal
law, the law cannot take chances as in the area of free speech.
xxxxxxxxx
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are
analytical tools developed for testing "on their faces" statutes in free speech
cases or, as they are called in American law, First Amendment cases. They
cannot be made to do service when what is involved is a criminal statute.
With respect to such statute, the established rule is that 'one to whom
application of a statute is constitutional will not be heard to attack the
statute on the ground that impliedly it might also be taken as applying to
other persons or other situations in which its application might be
unconstitutional.' As has been pointed out, 'vagueness challenges in the
First Amendment context, like overbreadth challenges typically produce
facial invalidation, while statutes found vague as a matter of due process
typically are invalidated [only] 'as applied' to a particular
defendant.'"22(underscoring supplied)
"To this date, the Court has not declared any penal law unconstitutional on
the ground of ambiguity."23 While mentioned in passing in some cases, the
void-for-vagueness concept has yet to find direct application in our
jurisdiction. In Yu Cong Eng v. Trinidad,24 the Bookkeeping Act was found
unconstitutional because it violated the equal protection clause, not
because it was vague. Adiong v. Comelec25 decreed as void a mere Comelec
Resolution, not a statute. Finally, Santiago v. Comelec26 held that a portion
of RA 6735 was unconstitutional because of undue delegation of legislative
powers, not because of vagueness.
Indeed, an "on-its-face" invalidation of criminal statutes would result in a mass
acquittal of parties whose cases may not have even reached the courts. Such
invalidation would constitute a departure from the usual requirement of "actual case
and controversy" and permit decisions to be made in a sterile abstract context having
no factual concreteness. In Younger v. Harris, this evil was aptly pointed out by the
U.S. Supreme Court in these words:27
"[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, x x x
ordinarily results in a kind of case that is wholly unsatisfactory for deciding
constitutional questions, whichever way they might be decided."
For this reason, generally disfavored is an on-its-face invalidation of statutes,
described as a "manifestly strong medicine" to be employed "sparingly and only as a
last resort." In determining the constitutionality of a statute, therefore, its provisions
that have allegedly been violated must be examined in the light of the conduct with
which the defendant has been charged.28
As conduct -- not speech -- is its object, the challenged provision must be examined
only "as applied" to the defendant, herein petitioner, and should not be declared
unconstitutional for overbreadth or vagueness.
The questioned provision reads as follows:
"Section 5. Prohibition on certain relatives. — It shall be unlawful for the
spouse or for any relative, by consanguinity or affinity, within the third civil
degree, of the President of the Philippines, the Vice-President of the
Philippines, the President of the Senate, or the Speaker of the House of
Representatives, to intervene, directly or indirectly, in any business,
 transaction, contract or application with the Government: Provided, That
this section shall not apply to any person who, prior to the assumption of
office of any of the above officials to whom he is related, has been already
dealing with the Government along the same line of business, nor to any
transaction, contract or application already existing or pending at the time
of such assumption of public office, nor to any application filed by him the
approval of which is not discretionary on the part of the official or officials
concerned but depends upon compliance with requisites provided by law,
or rules or regulations issued pursuant to law, nor to any act lawfully
performed in an official capacity or in the exercise of a profession."
Petitioner also claims that the phrase "to intervene directly or indirectly, in any
business, transaction, contract or application with the Government" is vague and
violates his right to be informed of the cause and nature of the accusation against
him.29 He further complains that the provision does not specify what acts are
punishable under the term intervene, and thus transgresses his right to be presumed
innocent.30 We disagree.
Every statute is presumed valid.31 On the party challenging its validity weighs heavily
the onerous task of rebutting this presumption. 32 Any reasonable doubt about the
validity of the law should be resolved in favor of its constitutionality.33 To doubt is to
sustain, as tersely put by Justice George Malcolm. In Garcia v. Executive
Secretary,34 the rationale for the presumption of constitutionality was explained by
this Court thus:
"The policy of the courts is to avoid ruling on constitutional questions and to
presume that the acts of the political departments are valid in the absence
of a clear and unmistakable showing to the contrary. To doubt is to sustain.
This presumption is based on the doctrine of separation of powers which
enjoins upon each department a becoming respect for the acts of the other
departments. The theory is that as the joint act of Congress and the
President of the Philippines, a law has been carefully studied and
determined to be in accordance with the fundamental law before it was
finally enacted."35
In the instant case, petitioner has miserably failed to overcome such presumption.
This Court has previously laid down the test for determining whether a statute is
vague, as follows:
"x x x [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
species 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.36 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.37 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.38 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."39
A simpler test was decreed in Dans v. People,40 in which the Court said that there was
nothing vague about a penal law that adequately answered the basic query "What is
the violation?"41 Anything beyond -- the hows and the whys -- are evidentiary matters
that the law itself cannot possibly disclose, in view of the uniqueness of every case.42
The question "What is the violation?" is sufficiently answered by Section 5 of RA 3019,
as follows:
1. The offender is a spouse or any relative by consanguinity or affinity within
the third civil degree of the President of the Philippines, the Vice-President
 of the Philippines, the President of the Senate, or the Speaker of the House
of Representatives; and
2. The offender intervened directly or indirectly in any business, transaction,
contract or application with the government.
Applicability
Statutory Construction
As to petitioner's claim that the term intervene is vague, this Court agrees with the
Office of the Solicitor General that the word can easily be understood through simple
statutory construction. The absence of a statutory definition of a term used in a
statute will not render the law "void for vagueness," if the meaning can be
determined through the judicial function of construction.43 Elementary is the
principle that words should be construed in their ordinary and usual meaning.
In sum, the Court holds that the challenged provision is not vague, and that in any
event, the "overbreath" and "void for vagueness" doctrines are not applicable to this
case.
Second Issue:
Allegedly Vague Information
of
Other than arguing on the alleged intrinsic vagueness of intervene, petitioner further
contends that the Information itself is also unconstitutionally vague, because it does
not specify the acts of intervention that he supposedly performed. 49 Again, we
disagree.
When allegations in the information are vague or indefinite, the remedy of the
accused is not a motion to quash, but a motion for a bill of particulars.50 The pertinent
provision in the Rules of Court is Section 9 of Rule 116, which we quote:

"x x x. A statute is not rendered uncertain and void merely because general
terms are used therein, or because of the employment of terms without
defining them;44 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 x x x.
"x x x [I]t 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,45 unless it is evident that the legislature intended a
technical or special legal meaning to those words.46 The intention of the
lawmakers - who are, ordinarily, untrained philologists and lexicographers -
to use statutory phraseology in such a manner is always presumed."47
"Section 9. Bill of particulars. -- The accused may, before arraignment, move
for a bill of particulars to enable him properly to plead and prepare for trial.
The motion shall specify the alleged defects of the complaint or information
and the details desired."
The rule merely requires the information to describe the offense with sufficient
particularity as to apprise the accused of what they are being charged with and to
enable the court to pronounce judgment. 51 The particularity must be such that
persons of ordinary intelligence may immediately know what is meant by the
information.52
While it is fundamental that every element of the offense must be alleged in the
information,53 matters of evidence -- as distinguished from the facts essential to the
nature of the offense -- need not be averred.54 Whatever facts and circumstances
must necessarily be alleged are to be determined by reference to the definition and
the essential elements of the specific crimes.55

The term intervene should therefore be understood in its ordinary acceptation,
which is to "to come between."48Criminally liable is anyone covered in the
enumeration of Section 5 of RA 3019 -- any person who intervenes in any manner in
any business, transaction, contract or application with the government. As we have
explained, it is impossible for the law to provide in advance details of how such acts
of intervention could be performed. But the courts may pass upon those details once
trial is concluded. Thus, the alleged vagueness of intervene is not a ground to quash
the information prior to the commencement of the trial.
In the instant case, a cursory reading of the Information shows that the elements of
a violation of Section 5 of RA 3019 have been stated sufficiently. Likewise, the
allegations describe the offense committed by petitioner with such particularity as to
enable him to prepare an intelligent defense. Details of the acts he committed are
evidentiary matters that need not be alleged in the Information.
Third Issue:
Preliminary Investigation
Clearly, petitioner already brought the issue of lack of preliminary investigation when
he questioned before this Court in GR No. 128317 the Sandiganbayan's Order giving
him 15 days to file a Motion for Reinvestigation with the Office of the Special
Prosecutor.56 Citing Cojuangco v. Presidential Commission on Good Government,57 he
undauntedly averred that he was deprived of his right to a preliminary investigation,
because the PCGG acted both as complainant and as investigator. 58
In the case cited above, this Court declared that while PCGG had the power to
conduct a preliminary investigation, the latter could not do so with the "cold
neutrality of an impartial judge" in cases in which it was the agency that had gathered
evidence and subsequently filed the complaint.59 On that basis, this Court nullified
the preliminary investigation conducted by PCGG and directed the transmittal of the
records to the Ombudsman for appropriate action.
It is readily apparent that Cojuangco does not support the quashal of the Information
against herein petitioner. True, the PCGG initiated the present Complaint against
him; hence, it could not properly conduct the preliminary investigation. However, he
was accorded his rights -- the Sandiganbayan suspended the trial and afforded him a
reinvestigation by the Ombudsman. The procedure outlined in Cojuangco was thus
followed.
The Sandiganbayan's actions are in accord also with Raro v. Sandiganbayan,60 which
held that the failure to conduct a valid preliminary investigation would not warrant
the quashal of an information. If the information has already been filed, the proper
procedure is for the Sandiganbayan to hold the trial in abeyance while the
preliminary investigation is being conducted or completed.61
Fourth Issue:
Prescription
The issue of prescription was the principal basis of the Motion to Quash filed by
petitioner with the Sandiganbayan on October 8, 1999. 62 Such issue should be
disregarded at this stage, since he failed to challenge its ruling debunking his Motion
within the 60-day period for the filing of a petition for certiorari. A party may not
circumvent this rule by filing a subsequent motion that raises the same issue and the
same arguments.
Furthermore, it is easy to see why this argument being raised by petitioner is utterly
unmeritorious. He points out that according to the Information, the offense was
committed "during the period from July 16, 1975 to July 29, 1975." He argues that
when the Information was filed on July 12, 1989,63 prescription had already set in,
because the prescriptive period for a violation of Republic Act No. 3019 is only ten
(10) years from the time the offense was allegedly committed. The increase of this
prescriptive period to fifteen (15) years took effect only on March 16, 1982, upon the
enactment of Batas Pambansa Blg. 195.64
Act No. 3326, as amended,65 governs the prescription of offenses penalized by special
laws. Its pertinent provision reads:
"Sec. 2. Prescription shall begin to run from the day of the commission of
the violation of the law, and if the same not be known at the time, from the
discovery thereof and the institution of judicial proceedings for its
investigation and punishment.
"The prescription shall be interrupted when proceedings are instituted
against the guilty person, and shall begin to run again if the proceedings are
dismissed for reasons not constituting jeopardy."
Consistent with the provision quoted above, this Court has previously reckoned the
prescriptive period of cases involving RA 3019 (committed prior to the February 1986
EDSA Revolution) from the discovery of the violation.66 In Republic v. Desierto, the
Court explained:
"This issue confronted this Court anew, albeit in a larger scale, in Presidential
Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto. In the said
recent case, the Board of Directors of the Philippine Seeds, Inc. and
Development Bank of the Philippines were charged with violation of
paragraphs (e) and (g) of Section 3 of RA No. 3019, by the Presidential Ad
Hoc Fact-Finding Committee on Behest Loans, created by then President
Fidel V. Ramos to investigate and to recover the so-called 'Behest Loans',
where the Philippine Government guaranteed several foreign loans to
corporations and entities connected with the former President Marcos. x x
x In holding that the case had not yet prescribed, this Court ruled that:
'In the present case, it was well-nigh impossible for the State, the
aggrieved party, to have known the violations of RA No. 3019 at the
time the questioned transactions were made because, as alleged,
the public officials concerned connived or conspired with the
'beneficiaries of the loans.' Thus, we agree with the COMMITTEE
that the prescriptive period for the offenses with which the
respondents in OMB-0-96-0968 were charged should be computed
from the discovery of the commission thereof and not from the day
of such commission.
xxx xxx xxx
 'People v. Duque is more in point, and what was stated there stands
reiteration: In the nature of things, acts made criminal by special
laws are frequently not immoral or obviously criminal in
themselves; for this reason, the applicable statute requires that if
the violation of the special law is not known at the time,
the prescription begins to run only from the discovery thereof, i.e.,
discovery of the unlawful nature of the constitutive act or
acts.' (Italics supplied)
"There are striking parallelisms between the said Behest Loans Case and the
present one which lead us to apply the ruling of the former to the
latter. First, both cases arose out of seemingly innocent business
transactions; second, both were 'discovered' only after the government
created bodies to investigate these anomalous transactions; third, both
involve prosecutions for violations of RA No. 3019; and, fourth, in both
cases, it was sufficiently raised in the pleadings that the respondents
conspired and connived with one another in order to keep the alleged
violations hidden from public scrutiny.
"This Court's pronouncement in the case of Domingo v. Sandiganbayan is
quite relevant and instructive as to the date when the discovery of the
offense should be reckoned, thus:
'In the present case, it was well-nigh impossible for the
government, the aggrieved party, to have known the violations
committed at the time the questioned transactions were made
because both parties to the transactions were allegedly in
conspiracy to perpetuate fraud against the government. The
alleged anomalous transactions could only have been discovered
after the February 1986 Revolution when one of the original
respondents, then President Ferdinand Marcos, was ousted from
office. Prior to said date, no person would have dared to question
the legality or propriety of those transactions. Hence, the counting
of the prescriptive period would commence from the date of
discovery of the offense, which could have been between February
1986 after the EDSA Revolution and 26 May 1987 when the
initiatory complaint was filed.'"67
The above pronouncement is squarely applicable to the present case. The general
rule that prescription shall begin to run from the day of the commission of the crime
cannot apply to the present case. It is not legally prudent to charge the State, the
aggrieved party, with knowledge of the violation of RA 3019 at the time the alleged
intervention was made. The accused is the late President Ferdinand E. Marcos'
brother-in-law. He was charged with intervening in a sale involving a private
corporation, the majority stocks of which was allegedly owned by President Marcos.
Prior to February 1986, no person was expected to have seriously dared question the
legality of the sale or would even have thought of investigating petitioner's alleged
involvement in the transaction. It was only after the creation68of PCGG69 and its
exhaustive investigations that the alleged crime was discovered. This led to the
initiation on November 29, 1988 of a Complaint against former President Marcos and
petitioner for violation of the Anti-Graft and Corrupt Practices Act. Consequently, the
filing of the Information on July 12, 1989 was well within the prescriptive period of
ten years from the discovery of the offense.
Fifth Issue
Immunity from Prosecution
Petitioner argues that he enjoys derivative immunity, because he allegedly served as
a high-ranking naval officer -- specifically, as naval aide-de-camp -- of former
President Marcos.70 He relies on Section 17 of Article VII of the 1973 Constitution, as
amended, which we quote:
"The President shall be immune from suit during his tenure. Thereafter, no
suit whatsoever shall lie for official acts done by him or by others pursuant
to his specific orders during his tenure.
"x x x xxx x x x"
As the Sandiganbayan aptly pointed out, the above provision is not applicable to
petitioner because the immunity amendment became effective only in 1981 while
the alleged crime happened in 1975.
In Estrada v. Desierto,71 this Court exhaustively traced the origin of executive
immunity in order to determine the extent of its applicability. We explained therein
that executive immunity applied only during the incumbency of a President. It could
not be used to shield a non-sitting President from prosecution for alleged criminal
acts done while sitting in office. The reasoning of petitioner must therefore fail, since
he derives his immunity from one who is no longer sitting as President. Verily, the
felonious acts of public officials and their close relatives "are not acts of the State,
and the officer who acts illegally is not acting as such but stands on the same footing
as any other trespasser."
In sum, petitioner utterly fails to show that the Sandiganbayan gravely abused its
discretion in issuing the assailed Resolutions.72 On the contrary, it acted prudently, in
accordance with law and jurisprudence.
WHEREFORE, the Petition is DISMISSED, and the questioned Resolutions of the
Sandiganbayan AFFIRMED. Costs against petitioner.

SO ORDERED.

Davide, Jr., C.J., Quisumbing, Carpio, Austria-Martinez, Carpio-Morales, Callejo, Sr.,

and Azcuna, JJ., concur.
Puno, Ynares-Santiago, and Sandoval-Gutierrez, JJ., in the result.
Corona, J., on leave.
Tinga, J., in the result. Please see separate opinion.
Chico-Nazario, J., no part. Ponente of assailed SB Resolutions.
G.R. No. 178552 October 5, 2010
SOUTHERN HEMISPHERE ENGAGEMENT NETWORK, INC., on behalf of the South-
South Network (SSN) for Non-State Armed Group Engagement, and ATTY. SOLIMAN
M. SANTOS, JR., Petitioners,
vs.
ANTI-TERRORISM COUNCIL, THE EXECUTIVE SECRETARY, THE SECRETARY OF
JUSTICE, THE SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY OF NATIONAL
DEFENSE, THE SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT, THE
SECRETARY OF FINANCE, THE NATIONAL SECURITY ADVISER, THE CHIEF OF STAFF
OF THE ARMED FORCES OF THE PHILIPPINES, AND THE CHIEF OF THE PHILIPPINE
NATIONAL POLICE, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 178554
KILUSANG MAYO UNO (KMU), represented by its Chairperson Elmer Labog,
NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG MAYO UNO (NAFLU-KMU),
represented by its National President Joselito V. Ustarez and Secretary General
Antonio C. Pascual, and CENTER FOR TRADE UNION AND HUMAN RIGHTS,
represented by its Executive Director Daisy Arago, Petitioners,
vs.
HON. EDUARDO ERMITA, in his capacity as Executive Secretary, NORBERTO
GONZALES, in his capacity as Acting Secretary of National Defense, HON. RAUL
GONZALES, in his capacity as Secretary of Justice, HON. RONALDO PUNO, in his
capacity as Secretary of the Interior and Local Government, GEN. HERMOGENES
ESPERON, in his capacity as AFP Chief of Staff, and DIRECTOR GENERAL OSCAR
CALDERON, in his capacity as PNP Chief of Staff, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 178581
BAGONG ALYANSANG MAKABAYAN (BAYAN), GENERAL ALLIANCE BINDING
WOMEN FOR REFORMS, INTEGRITY, EQUALITY, LEADERSHIP AND ACTION
(GABRIELA), KILUSANG MAGBUBUKID NG PILIPINAS (KMP), MOVEMENT OF
CONCERNED CITIZENS FOR CIVIL LIBERTIES (MCCCL), CONFEDERATION FOR UNITY,
RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE),
KALIPUNAN NG DAMAYANG MAHIHIRAP (KADAMAY), SOLIDARITY OF CAVITE
WORKERS, LEAGUE OF FILIPINO STUDENTS (LFS), ANAKBAYAN, PAMBANSANG
LAKAS NG KILUSANG MAMAMALAKAYA (PAMALAKAYA), ALLIANCE OF
CONCERNED TEACHERS (ACT), MIGRANTE, HEALTH ALLIANCE FOR DEMOCRACY
(HEAD), AGHAM, TEOFISTO GUINGONA, JR., DR. BIENVENIDO LUMBERA, RENATO
CONSTANTINO, JR., SISTER MARY JOHN MANANSAN OSB, DEAN CONSUELO PAZ,
ATTY. JOSEFINA LICHAUCO, COL. GERRY CUNANAN (ret.), CARLITOS SIGUION-
REYNA, DR. CAROLINA PAGADUAN-ARAULLO, RENATO REYES, DANILO RAMOS,
EMERENCIANA DE LESUS, RITA BAUA, REY CLARO CASAMBRE, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-
Chief, EXECUTIVE SECRETARY EDUARDO ERMITA, DEPARTMENT OF JUSTICE
SECRETARY RAUL GONZALES, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY
ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE ACTING SECRETARY
NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT
SECRETARY RONALDO PUNO. DEPARTMENT OF FINANCE SECRETARY MARGARITO
TEVES, NATIONAL SECURITY ADVISER NORBERTO GONZALES, THE NATIONAL
INTELLIGENCE COORDINATING AGENCY (NICA), THE NATIONAL BUREAU OF
INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL
DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE PHILIPPINES
(ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER
ON TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN.
OSCAR CALDERON, THE PNP, including its intelligence and investigative elements,
AFP CHIEF GEN. HERMOGENES ESPERON, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 178890
KARAPATAN, ALLIANCE FOR THE ADVANCEMENT OF PEOPLE'S RIGHTS, represented
herein by Dr. Edelina de la Paz, and representing the following organizations:
HUSTISYA, represented by Evangeline Hernandez and also on her own behalf;
DESAPARECIDOS, represented by Mary Guy Portajada and also on her own behalf,
SAMAHAN NG MGA EX-DETAINEES LABAN SA DETENSYON AT PARA SA AMNESTIYA
(SELDA), represented by Donato Continente and also on his own behalf,
ECUMENICAL MOVEMENT FOR JUSTICE AND PEACE (EMJP), represented by Bishop
Elmer M. Bolocon, UCCP, and PROMOTION OF CHURCH PEOPLE'S RESPONSE,
represented by Fr. Gilbert Sabado, OCARM, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-
Chief, EXECUTIVE SECRETARTY EDUARDO ERMITA, DEPARTMENT OF JUSTICE
SECRETARY RAUL GONZALEZ, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY
ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE ACTING SECRETARY
NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT
SECRETARY RONALDO PUNO, DEPARTMENT OF FINANCE SECRETARY MARGARITO
TEVES, NATIONAL SECURITY ADVISER NORBERTO GONZALES, THE NATIONAL
INTELLIGENCE COORDINATING AGENCY (NICA), THE NATIONAL BUREAU OF
INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL
DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE PHILIPPINES
(ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER
ON TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN.
OSCAR CALDERON, THE PNP, including its intelligence and investigative elements,
AFP CHIEF GEN. HERMOGENES ESPERON, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 179157
THE INTEGRATED BAR OF THE PHILIPPINES (IBP), represented by Atty. Feliciano M.
Bautista, COUNSELS FOR THE DEFENSE OF LIBERTY (CODAL), SEN. MA. ANA
CONSUELO A.S. MADRIGAL and FORMER SENATORS SERGIO OSMEÑA III and
WIGBERTO E. TAÑADA, Petitioners,
vs.
EXECUTIVE SECRETARY EDUARDO ERMITA AND THE MEMBERS OF THE ANTI-
TERRORISM COUNCIL (ATC), Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 179461
BAGONG ALYANSANG MAKABAYAN-SOUTHERN TAGALOG (BAYAN-ST), GABRIELA-
ST, KATIPUNAN NG MGA SAMAHYANG MAGSASAKA-TIMOG KATAGALUGAN
(KASAMA-TK), MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES (MCCCL),
PEOPLES MARTYRS, ANAKBAYAN-ST, PAMALAKAYA-ST, CONFEDERATION FOR
UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES
(COURAGE-ST), PAGKAKAISA'T UGNAYAN NG MGA MAGBUBUKID SA LAGUNA
(PUMALAG), SAMAHAN NG MGA MAMAMAYAN SA TABING RILES (SMTR-ST),
LEAGUE OF FILIPINO STUDENTS (LFS), BAYAN MUNA-ST, KONGRESO NG MGA
MAGBUBUKID PARA SA REPORMANG AGRARYO KOMPRA, BIGKIS AT LAKAS NG
MGA KATUTUBO SA TIMOG KATAGALUGAN (BALATIK), SAMAHAN AT UGNAYAN
NG MGA MAGSASAKANG KABABAIHAN SA TIMOG KATAGALUGAN (SUMAMAKA-
TK), STARTER, LOSÑOS RURAL POOR ORGANIZATION FOR PROGRESS & EQUALITY,
CHRISTIAN NIÑO LAJARA, TEODORO REYES, FRANCESCA B. TOLENTINO, JANNETTE
E. BARRIENTOS, OSCAR T. LAPIDA, JR., DELFIN DE CLARO, SALLY P. ASTRERA, ARNEL
SEGUNE BELTRAN, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-
Chief, EXECUTIVE SECRETARY EDUARDO ERMITA, DEPARTMENT OF JUSTICE
SECRETARY RAUL GONZALEZ, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY
ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE ACTING SECRETARY
NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMEN T
SECRETARY RONALDO PUNO, DEPARTMENT OF FINCANCE SECRETARY MARGARITO
TEVES, NATIONAL SECURITY ADVISER NORBERTO GONZALES, THE NATIONAL
INTELLIGENCE COORDINATING AGENCY (NICA), THE NATIONAL BUREAU OF
INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL
DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE PHILIPPINES
(ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER
ON TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN.
OSCAR CALDERON, THE PNP, including its intelligence and investigative elements,
AFP CHIEF GEN. HERMOGENES ESPERON, Respondents.
DECISION
CARPIO MORALES, J.:
Before the Court are six petitions challenging the constitutionality of Republic Act No.
9372 (RA 9372), "An Act to Secure the State and Protect our People from Terrorism,"
otherwise known as the Human Security Act of 2007, 1signed into law on March 6,
2007.
Following the effectivity of RA 9372 on July 15, 2007,2 petitioner Southern
Hemisphere Engagement Network, Inc., a non-government organization, and Atty.
Soliman Santos, Jr., a concerned citizen, taxpayer and lawyer, filed a petition for
certiorari and prohibition on July 16, 2007 docketed as G.R. No. 178552. On even
date, petitioners Kilusang Mayo Uno (KMU), National Federation of Labor Unions-
Kilusang Mayo Uno (NAFLU-KMU), and Center for Trade Union and Human Rights
(CTUHR), represented by their respective officers3 who are also bringing the action in
their capacity as citizens, filed a petition for certiorari and prohibition docketed as
G.R. No. 178554.
The following day, July 17, 2007, organizations Bagong Alyansang Makabayan
(BAYAN), General Alliance Binding Women for Reforms, Integrity, Equality,
Leadership and Action (GABRIELA), Kilusang Magbubukid ng Pilipinas (KMP),
Movement of Concerned Citizens for Civil Liberties (MCCCL), Confederation for Unity,
Recognition and Advancement of Government Employees (COURAGE), Kalipunan ng
Damayang Mahihirap (KADAMAY), Solidarity of Cavite Workers (SCW), League of
Filipino Students (LFS), Anakbayan, Pambansang Lakas ng Kilusang Mamamalakaya
(PAMALAKAYA), Alliance of Concerned Teachers (ACT), Migrante, Health Alliance for
Democracy (HEAD), and Agham, represented by their respective officers,4 and joined
by concerned citizens and taxpayers Teofisto Guingona, Jr., Dr. Bienvenido Lumbera,
Renato Constantino, Jr., Sister Mary John Manansan, OSB, Dean Consuelo Paz, Atty.
Josefina Lichauco, Retired Col. Gerry Cunanan, Carlitos Siguion-Reyna, Dr. Carolina
Pagaduan-Araullo, Renato Reyes, Danilo Ramos, Emerenciana de Jesus, Rita Baua and
Rey Claro Casambre filed a petition for certiorari and prohibition docketed as G.R.
No. 178581.
On August 6, 2007, Karapatan and its alliance member organizations Hustisya,
Desaparecidos, Samahan ng mga Ex-Detainees Laban sa Detensyon at para sa
Amnestiya (SELDA), Ecumenical Movement for Justice and Peace (EMJP), and
Promotion of Church People’s Response (PCPR), which were represented by their
respective officers5who are also bringing action on their own behalf, filed a petition
for certiorari and prohibition docketed as G.R. No. 178890.
On August 29, 2007, the Integrated Bar of the Philippines (IBP), Counsels for the
Defense of Liberty (CODAL),6Senator Ma. Ana Consuelo A.S. Madrigal, Sergio Osmeña
III, and Wigberto E. Tañada filed a petition for certiorari and prohibition docketed as
G.R. No. 179157.
Bagong Alyansang Makabayan-Southern Tagalog (BAYAN-ST), other regional
chapters and organizations mostly based in the Southern Tagalog Region, 7 and
individuals8 followed suit by filing on September 19, 2007 a petition for certiorari and
prohibition docketed as G.R. No. 179461 that replicates the allegations raised in the
BAYAN petition in G.R. No. 178581.
Impleaded as respondents in the various petitions are the Anti-Terrorism
Council9 composed of, at the time of the filing of the petitions, Executive Secretary
Eduardo Ermita as Chairperson, Justice Secretary Raul Gonzales as Vice Chairperson,
and Foreign Affairs Secretary Alberto Romulo, Acting Defense Secretary and National
Security Adviser Norberto Gonzales, Interior and Local Government Secretary
Ronaldo Puno, and Finance Secretary Margarito Teves as members. All the petitions,
except that of the IBP, also impleaded Armed Forces of the Philippines (AFP) Chief of
Staff Gen. Hermogenes Esperon and Philippine National Police (PNP) Chief Gen. Oscar
Calderon.
The Karapatan, BAYAN and BAYAN-ST petitions likewise impleaded President Gloria
Macapagal-Arroyo and the support agencies for the Anti-Terrorism Council like the
National Intelligence Coordinating Agency, National Bureau of Investigation, Bureau
of Immigration, Office of Civil Defense, Intelligence Service of the AFP, Anti-Money
Laundering Center, Philippine Center on Transnational Crime, and the PNP
intelligence and investigative elements.
The petitions fail.
Petitioners’ resort to certiorari is improper
Preliminarily, certiorari does not lie against respondents who do not exercise judicial
or quasi-judicial functions. Section 1, Rule 65 of the Rules of Court is clear:
Section 1. Petition for certiorari.—When any tribunal, board or
officer exercising judicial or quasi-judicial functionshas acted without or in excess of
its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in
the ordinary course of law, a person aggrieved thereby may file a verified petition in
the proper court, alleging the facts with certainty and praying that judgment be
rendered annulling or modifying the proceedings of such tribunal, board or officer,
and granting such incidental reliefs as law and justice may require. (Emphasis and
underscoring supplied)
Parenthetically, petitioners do not even allege with any modicum of particularity how
respondents acted without or in excess of their respective jurisdictions, or with grave
abuse of discretion amounting to lack or excess of jurisdiction.
The impropriety of certiorari as a remedy aside, the petitions fail just the same.
In constitutional litigations, the power of judicial review is limited by four exacting
requisites, viz: (a) there must be an actual case or controversy; (b) petitioners must
possess locus standi; (c) the question of constitutionality must be raised at the
earliest opportunity; and (d) the issue of constitutionality must be the lis mota of the
case.10
In the present case, the dismal absence of the first two requisites, which are the most
essential, renders the discussion of the last two superfluous.
Petitioners lack locus standi
Locus standi or legal standing requires a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation
of issues upon which the court so largely depends for illumination of difficult
constitutional questions.11
Anak Mindanao Party-List Group v. The Executive Secretary12 summarized the rule on
locus standi, thus:
Locus standi or legal standing has been defined as a personal and substantial interest
in a case such that the party has sustained or will sustain direct injury as a result of
the governmental act that is being challenged. The gist of the question on standing is
whether a party alleges such personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the presentation of issues upon
which the court depends for illumination of difficult constitutional questions.
[A] party who assails the constitutionality of a statute must have a direct and personal
interest. It must show not only that the law or any governmental act is invalid, but
also that it sustained or is in immediate danger of sustaining some direct injury as a
result of its enforcement, and not merely that it suffers thereby in some indefinite
way. It must show that it has been or is about to be denied some right or privilege to
which it is lawfully entitled or that it is about to be subjected to some burdens or
penalties by reason of the statute or act complained of.
For a concerned party to be allowed to raise a constitutional question, it must show
that (1) it has personally suffered some actual or threatened injury as a result of the
allegedly illegal conduct of the government, (2) the injury is fairly traceable to the
challenged action, and (3) the injury is likely to be redressed by a favorable action.
(emphasis and underscoring supplied.)
Petitioner-organizations assert locus standi on the basis of being suspected
"communist fronts" by the government, especially the military; whereas individual
petitioners invariably invoke the "transcendental importance" doctrine and their
status as citizens and taxpayers.
While Chavez v. PCGG13 holds that transcendental public importance dispenses with
the requirement that petitioner has experienced or is in actual danger of suffering
direct and personal injury, cases involving the constitutionality of penal legislation
belong to an altogether different genus of constitutional litigation. Compelling State
and societal interests in the proscription of harmful conduct, as will later be
elucidated, necessitate a closer judicial scrutiny of locus standi.
Petitioners have not presented any personal stake in the outcome of the controversy.
None of them faces any charge under RA 9372.
KARAPATAN, Hustisya, Desaparecidos, SELDA, EMJP and PCR, petitioners in G.R. No.
178890, allege that they have been subjected to "close security surveillance by state
security forces," their members followed by "suspicious persons" and "vehicles with
dark windshields," and their offices monitored by "men with military build." They
likewise claim that they have been branded as "enemies of the [S]tate." 14
Even conceding such gratuitous allegations, the Office of the Solicitor General (OSG)
correctly points out that petitioners have yet to show any connection between the
purported "surveillance" and the implementation of RA 9372.
BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW, LFS, Anakbayan,
PAMALAKAYA, ACT, Migrante, HEAD and Agham, petitioner-organizations in G.R. No.
178581, would like the Court to take judicial notice of respondents’ alleged action of
tagging them as militant organizations fronting for the Communist Party of the
Philippines (CPP) and its armed wing, the National People’s Army (NPA). The tagging,
according to petitioners, is tantamount to the effects of proscription without
following the procedure under the law.15 The petition of BAYAN-ST, et al. in G.R. No.
179461 pleads the same allegations.
The Court cannot take judicial notice of the alleged "tagging" of petitioners.
Generally speaking, matters of judicial notice have three material requisites: (1) the
matter must be one of common and general knowledge; (2) it must be well and
authoritatively settled and not doubtful or uncertain; and (3) it must be known to be
within the limits of the jurisdiction of the court. The principal guide in determining
what facts may be assumed to be judicially known is that of notoriety. Hence, it can
be said that judicial notice is limited to facts evidenced by public records and facts of
general notoriety. Moreover, a judicially noticed fact must be one not subject to a
reasonable dispute in that it is either: (1) generally known within the territorial
jurisdiction of the trial court; or (2) capable of accurate and ready determination by
resorting to sources whose accuracy cannot reasonably be questionable.
Things of "common knowledge," of which courts take judicial matters coming to the
knowledge of men generally in the course of the ordinary experiences of life, or they
may be matters which are generally accepted by mankind as true and are capable of
ready and unquestioned demonstration. Thus, facts which are universally known, and
which may be found in encyclopedias, dictionaries or other publications, are judicially
noticed, provided, they are of such universal notoriety and so generally understood
that they may be regarded as forming part of the common knowledge of every
person. As the common knowledge of man ranges far and wide, a wide variety of
particular facts have been judicially noticed as being matters of common knowledge.
But a court cannot take judicial notice of any fact which, in part, is dependent on the
existence or non-existence of a fact of which the court has no constructive
knowledge.16 (emphasis and underscoring supplied.)
No ground was properly established by petitioners for the taking of judicial notice.
Petitioners’ apprehension is insufficient to substantiate their plea. That no specific
charge or proscription under RA 9372 has been filed against them, three years after
its effectivity, belies any claim of imminence of their perceived threat emanating
from the so-called tagging.
The same is true with petitioners KMU, NAFLU and CTUHR in G.R. No. 178554, who
merely harp as well on their supposed "link" to the CPP and NPA. They fail to
particularize how the implementation of specific provisions of RA 9372 would result
in direct injury to their organization and members.
While in our jurisdiction there is still no judicially declared terrorist organization, the
United States of America17 (US) and the European Union18 (EU) have both classified
the CPP, NPA and Abu Sayyaf Group as foreign terrorist organizations. The Court
takes note of the joint statement of Executive Secretary Eduardo Ermita and Justice
Secretary Raul Gonzales that the Arroyo Administration would adopt the US and EU
classification of the CPP and NPA as terrorist organizations.19 Such statement
notwithstanding, there is yet to be filed before the courts an application to declare
the CPP and NPA organizations as domestic terrorist or outlawed organizations under
RA 9372. Again, RA 9372 has been in effect for three years now. From July 2007 up
to the present, petitioner-organizations have conducted their activities fully and
freely without any threat of, much less an actual, prosecution or proscription under
RA 9372.
Parenthetically, the Fourteenth Congress, in a resolution initiated by Party-list
Representatives Saturnino Ocampo, Teodoro Casiño, Rafael Mariano and Luzviminda
Ilagan,20 urged the government to resume peace negotiations with the NDF by
removing the impediments thereto, one of which is the adoption of designation of
the CPP and NPA by the US and EU as foreign terrorist organizations. Considering the
policy statement of the Aquino Administration 21 of resuming peace talks with the
NDF, the government is not imminently disposed to ask for the judicial proscription
of the CPP-NPA consortium and its allied organizations.
More important, there are other parties not before the Court with direct and specific
interests in the questions being raised.22 Of recent development is the filing of
the first case for proscription under Section 1723 of RA 9372 by the Department of
Justice before the Basilan Regional Trial Court against the Abu Sayyaf
Group.24 Petitioner-organizations do not in the least allege any link to the Abu Sayyaf
Group.
Some petitioners attempt, in vain though, to show the imminence of a prosecution
under RA 9372 by alluding to past rebellion charges against them.
In Ladlad v. Velasco,25 the Court ordered the dismissal of rebellion charges filed in
2006 against then Party-List Representatives Crispin Beltran and Rafael Mariano of
Anakpawis, Liza Maza of GABRIELA, and Joel Virador, Teodoro Casiño and Saturnino
Ocampo of Bayan Muna. Also named in the dismissed rebellion charges were
petitioners Rey Claro Casambre, Carolina Pagaduan-Araullo, Renato Reyes, Rita Baua,
Emerencia de Jesus and Danilo Ramos; and accused of being front organizations for
the Communist movement were petitioner-organizations KMU, BAYAN, GABRIELA,
PAMALAKAYA, KMP, KADAMAY, LFS and COURAGE.26
The dismissed rebellion charges, however, do not save the day for petitioners. For
one, those charges were filed in 2006, prior to the enactment of RA 9372, and
dismissed by this Court. For another, rebellion is defined and punished under the
Revised Penal Code. Prosecution for rebellion is not made more imminent by the
enactment of RA 9372, nor does the enactment thereof make it easier to charge a
person with rebellion, its elements not having been altered.
Conversely, previously filed but dismissed rebellion charges bear no relation to
prospective charges under RA 9372. It cannot be overemphasized that three years
after the enactment of RA 9372, none of petitioners has been charged.
Petitioners IBP and CODAL in G.R. No. 179157 base their claim of locus standi on their
sworn duty to uphold the Constitution. The IBP zeroes in on Section 21 of RA 9372
directing it to render assistance to those arrested or detained under the law.
The mere invocation of the duty to preserve the rule of law does not, however, suffice
to clothe the IBP or any of its members with standing. 27 The IBP failed to sufficiently
demonstrate how its mandate under the assailed statute revolts against its
constitutional rights and duties. Moreover, both the IBP and CODAL have not pointed
to even a single arrest or detention effected under RA 9372.
Former Senator Ma. Ana Consuelo Madrigal, who claims to have been the subject of
"political surveillance," also lacks locus standi. Prescinding from the veracity, let alone
legal basis, of the claim of "political surveillance," the Court finds that she has not
shown even the slightest threat of being charged under RA 9372. Similarly lacking in
locus standi are former Senator Wigberto Tañada and Senator Sergio Osmeña III, who
cite their being respectively a human rights advocate and an oppositor to the passage
of RA 9372. Outside these gratuitous statements, no concrete injury to them has
been pinpointed.
Petitioners Southern Hemisphere Engagement Network and Atty. Soliman Santos Jr.
in G.R. No. 178552 also conveniently state that the issues they raise are of
transcendental importance, "which must be settled early" and are of "far-reaching
implications," without mention of any specific provision of RA 9372 under which they
have been charged, or may be charged. Mere invocation of human rights advocacy
has nowhere been held sufficient to clothe litigants with locus standi. Petitioners
must show an actual, or immediate danger of sustaining, direct injury as a result of
the law’s enforcement. To rule otherwise would be to corrupt the settled doctrine of
locus standi, as every worthy cause is an interest shared by the general public.
Neither can locus standi be conferred upon individual petitioners as taxpayers and
citizens. A taxpayer suit is proper only when there is an exercise of the spending or
taxing power of Congress,28 whereas citizen standing must rest on direct and
personal interest in the proceeding.29
RA 9372 is a penal statute and does not even provide for any appropriation from
Congress for its implementation, while none of the individual petitioner-citizens has
alleged any direct and personal interest in the implementation of the law.
It bears to stress that generalized interests, albeit accompanied by the assertion of a
public right, do not establish locus standi. Evidence of a direct and personal interest
is key.
Petitioners fail to present an actual case or controversy
By constitutional fiat, judicial power operates only when there is an actual case or
controversy.
Section 1. The judicial power shall be vested in one Supreme Court and in such lower
courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and to
determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government.30(emphasis and underscoring supplied.)
31
As early as Angara v. Electoral Commission, the Court ruled that the power of
judicial review is limited to actual cases or controversies to be exercised after full
opportunity of argument by the parties. Any attempt at abstraction could only lead
to dialectics and barren legal questions and to sterile conclusions unrelated to
actualities.
An actual case or controversy means an existing case or controversy that is
appropriate or ripe for determination, not conjectural or anticipatory, lest the
decision of the court would amount to an advisory opinion.32
Information Technology Foundation of the Philippines v. COMELEC33 cannot be more
emphatic:
[C]ourts do not sit to adjudicate mere academic questions to satisfy scholarly
interest, however intellectually challenging. The controversy must be justiciable—
definite and concrete, touching on the legal relations of parties having adverse legal
interests. In other words, the pleadings must show an active antagonistic assertion
of a legal right, on the one hand, and a denial thereof on the other hand; that is, it
must concern a real and not merely a theoretical question or issue. There ought to
be an actual and substantial controversy admitting of specific relief through a decree
conclusive in nature, as distinguished from an opinion advising what the law would
be upon a hypothetical state of facts. (Emphasis and underscoring supplied)
Thus, a petition to declare unconstitutional a law converting the Municipality of
Makati into a Highly Urbanized City was held to be premature as it was tacked on
uncertain, contingent events.34 Similarly, a petition that fails to allege that an
application for a license to operate a radio or television station has been denied or
granted by the authorities does not present a justiciable controversy, and merely
wheedles the Court to rule on a hypothetical problem.35
The Court dismissed the petition in Philippine Press Institute v. Commission on
Elections36 for failure to cite any specific affirmative action of the Commission on
Elections to implement the assailed resolution. It refused, in Abbas v. Commission on
Elections,37 to rule on the religious freedom claim of the therein petitioners based
merely on a perceived potential conflict between the provisions of the Muslim Code
and those of the national law, there being no actual controversy between real
litigants.
The list of cases denying claims resting on purely hypothetical or anticipatory grounds
goes on ad infinitum.
The Court is not unaware that a reasonable certainty of the occurrence of a perceived
threat to any constitutional interest suffices to provide a basis for mounting a
constitutional challenge. This, however, is qualified by the requirement that there
must be sufficient facts to enable the Court to intelligently adjudicate the issues.38
Very recently, the US Supreme Court, in Holder v. Humanitarian Law
Project,39 allowed the pre-enforcement review of a criminal statute, challenged on
vagueness grounds, since plaintiffs faced a "credible threat of prosecution" and
"should not be required to await and undergo a criminal prosecution as the sole
means of seeking relief."40 The plaintiffs therein filed an action before a federal court
to assail the constitutionality of the material support statute, 18 U.S.C. §2339B (a)
(1),41 proscribing the provision of material support to organizations declared by the
Secretary of State as foreign terrorist organizations. They claimed that they intended
to provide support for the humanitarian and political activities of two such
organizations.
Prevailing American jurisprudence allows an adjudication on the merits when an
anticipatory petition clearly shows that the challenged prohibition forbids the
conduct or activity that a petitioner seeks to do, as there would then be a justiciable
controversy.42
Unlike the plaintiffs in Holder, however, herein petitioners have failed to show that
the challenged provisions of RA 9372 forbid constitutionally protected conduct or
activity that they seek to do. No demonstrable threat has been established, much
less a real and existing one.
Petitioners’ obscure allegations of sporadic "surveillance" and supposedly being
tagged as "communist fronts" in no way approximate a credible threat of
prosecution. From these allegations, the Court is being lured to render an advisory
opinion, which is not its function.43
Without any justiciable controversy, the petitions have become pleas for declaratory
relief, over which the Court has no original jurisdiction. Then again, declaratory
actions characterized by "double contingency," where both the activity the
petitioners intend to undertake and the anticipated reaction to it of a public official
are merely theorized, lie beyond judicial review for lack of ripeness.44
The possibility of abuse in the implementation of RA 9372 does not avail to take the
present petitions out of the realm of the surreal and merely imagined. Such possibility
is not peculiar to RA 9372 since the exercise of any power granted by law may be
abused.45 Allegations of abuse must be anchored on real events before courts may
step in to settle actual controversies involving rights which are legally demandable
and enforceable.
A facial invalidation of a statute is allowed only in free speech cases, wherein
certain rules of constitutional litigation are rightly excepted
Petitioners assail for being intrinsically vague and impermissibly broad the definition
of the crime of terrorism46under RA 9372 in that terms like "widespread and
extraordinary fear and panic among the populace" and "coerce the government to
give in to an unlawful demand" are nebulous, leaving law enforcement agencies with
no standard to measure the prohibited acts.
Respondents, through the OSG, counter that the doctrines of void-for-vagueness and
overbreadth find no application in the present case since these doctrines apply only
to free speech cases; and that RA 9372 regulates conduct, not speech.
For a jurisprudentially guided understanding of these doctrines, it is imperative to
outline the schools of thought on whether the void-for-vagueness and overbreadth
doctrines are equally applicable grounds to assail a penal statute.
Respondents interpret recent jurisprudence as slanting toward the idea of limiting
the application of the two doctrines to free speech cases. They particularly
cite Romualdez v. Hon. Sandiganbayan47 and Estrada v. Sandiganbayan.48
The Court clarifies.
At issue in Romualdez v. Sandiganbayan was whether the word "intervene" in
Section 549 of the Anti-Graft and Corrupt Practices Act was intrinsically vague and
impermissibly broad. The Court stated that "the overbreadth and the vagueness
doctrines have special application only to free-speech cases," and are "not
appropriate for testing the validity of penal statutes."50 It added that, at any rate, the
challenged provision, under which the therein petitioner was charged, is not vague.51
While in the subsequent case of Romualdez v. Commission on Elections,52 the Court
stated that a facial invalidation of criminal statutes is not appropriate, it nonetheless
proceeded to conduct a vagueness analysis, and concluded that the therein subject
election offense53 under the Voter’s Registration Act of 1996, with which the therein
petitioners were charged, is couched in precise language.54
The two Romualdez cases rely heavily on the Separate Opinion55 of Justice Vicente V.
Mendoza in the Estradacase, where the Court found the Anti-Plunder Law (Republic
Act No. 7080) clear and free from ambiguity respecting the definition of the crime of
plunder.
The position taken by Justice Mendoza in Estrada relates these two doctrines to the
concept of a "facial" invalidation as opposed to an "as-applied" challenge. He
basically postulated that allegations that a penal statute is vague and overbroad do
not justify a facial review of its validity. The pertinent portion of the Concurring
Opinion of Justice Mendoza, which was quoted at length in the main Estrada decision,
reads:
A facial challenge is allowed to be made to a vague statute and to one which is
overbroad because of possible "chilling effect" upon protected speech. The theory is
that "[w]hen statutes regulate or proscribe speech and no readily apparent
construction suggests itself as a vehicle for rehabilitating the statutes in a single
prosecution, the transcendent value to all society of constitutionally protected
expression is deemed to justify allowing attacks on overly broad statutes with no
requirement that the person making the attack demonstrate that his own conduct
could not be regulated by a statute drawn with narrow specificity." The possible harm
to society in permitting some unprotected speech to go unpunished is outweighed
by the possibility that the protected speech of others may be deterred and perceived
grievances left to fester because of possible inhibitory effects of overly broad
statutes.
This rationale does not apply to penal statutes. Criminal statutes have general in
terrorem effect resulting from their very existence, and, if facial challenge is
allowed for this reason alone, the State may well be prevented from enacting laws
against socially harmful conduct. In the area of criminal law, the law cannot take
chances as in the area of free speech.
The overbreadth and vagueness doctrines then have special application only to free
speech cases. They are inapt for testing the validity of penal statutes. As the U.S.
Supreme Court put it, in an opinion by Chief Justice Rehnquist, "we have not
recognized an 'overbreadth' doctrine outside the limited context of the First
Amendment." In Broadrick v. Oklahoma, the Court ruled that "claims of facial
overbreadth have been entertained in cases involving statutes which, by their terms,
seek to regulate only spoken words" and, again, that "overbreadth claims, if
entertained at all, have been curtailed when invoked against ordinary criminal laws
that are sought to be applied to protected conduct." For this reason, it has been held
that "a facial challenge to a legislative act is the most difficult challenge to mount
successfully, since the challenger must establish that no set of circumstances exists
under which the Act would be valid." As for the vagueness doctrine, it is said that a
litigant may challenge a statute on its face only if it is vague in all its possible
applications. "A plaintiff who engages in some conduct that is clearly proscribed
cannot complain of the vagueness of the law as applied to the conduct of others."
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical
tools developed for testing "on their faces" statutes in free speech cases or, as they
are called in American law, First Amendment cases. They cannot be made to do
service when what is involved is a criminal statute. With respect to such statute, the
established rule is that "one to whom application of a statute is constitutional will
not be heard to attack the statute on the ground that impliedly it might also be taken
as applying to other persons or other situations in which its application might be
unconstitutional." As has been pointed out, "vagueness challenges in the First
Amendment context, like overbreadth challenges typically produce facial
invalidation, while statutes found vague as a matter of due process typically are
invalidated [only] 'as applied' to a particular defendant." Consequently, there is no
basis for petitioner's claim that this Court review the Anti-Plunder Law on its face and
in its entirety.
Indeed, "on its face" invalidation of statutes results in striking them down entirely on
the ground that they might be applied to parties not before the Court whose activities
are constitutionally protected. It constitutes a departure from the case and
controversy requirement of the Constitution and permits decisions to be made
without concrete factual settings and in sterile abstract contexts. But, as the U.S.
Supreme Court pointed out in Younger v. Harris
[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,"
and is generally disfavored. In determining the constitutionality of a statute,
therefore, its provisions which are alleged to have been violated in a case must be
examined in the light of the conduct with which the defendant is
charged.56 (Underscoring supplied.)
The confusion apparently stems from the interlocking relation of the overbreadth
and vagueness doctrines as grounds for a facial or as-applied challenge against a
penal statute (under a claim of violation of due process of law) or a speech regulation
(under a claim of abridgement of the freedom of speech and cognate rights).
To be sure, the doctrine of vagueness and the doctrine of overbreadth do not operate
on the same plane.
A statute or act suffers from the defect of vagueness when it lacks comprehensible
standards that men of common intelligence must necessarily guess at its meaning
and differ as to its application. It is repugnant to the Constitution in two respects: (1)
it violates due process for failure to accord persons, especially the parties targeted
by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled
discretion in carrying out its provisions and becomes an arbitrary flexing of the
Government muscle.57 The overbreadth doctrine, meanwhile, decrees that a
governmental purpose to control or prevent activities constitutionally subject to
state regulations may not be achieved by means which sweep unnecessarily broadly
and thereby invade the area of protected freedoms. 58
As distinguished from the vagueness doctrine, the overbreadth doctrine assumes
that individuals will understand what a statute prohibits and will accordingly refrain
from that behavior, even though some of it is protected.59
A "facial" challenge is likewise different from an "as-applied" challenge.
Distinguished from an as-applied challenge which considers only extant facts
affecting real litigants, a facialinvalidation is an examination of the entire law,
pinpointing its flaws and defects, not only on the basis of its actual operation to the
parties, but also on the assumption or prediction that its very existence may cause
others not before the court to refrain from constitutionally protected speech or
activities.60
Justice Mendoza accurately phrased the subtitle61 in his concurring opinion that the
vagueness and overbreadth doctrines, as grounds for a facial challenge, are not
applicable to penal laws. A litigant cannot thus successfully mount a facial challenge
against a criminal statute on either vagueness or overbreadth grounds.
The allowance of a facial challenge in free speech cases is justified by the aim to avert
the "chilling effect" on protected speech, the exercise of which should not at all times
be abridged.62 As reflected earlier, this rationale is inapplicable to plain penal statutes
that generally bear an "in terrorem effect" in deterring socially harmful conduct. In
fact, the legislature may even forbid and penalize acts formerly considered innocent
and lawful, so long as it refrains from diminishing or dissuading the exercise of
constitutionally protected rights.63
The Court reiterated that there are "critical limitations by which a criminal statute
may be challenged" and "underscored that an ‘on-its-face’ invalidation of penal
statutes x x x may not be allowed."64
[T]he rule established in our jurisdiction is, only statutes on free speech, religious
freedom, and other fundamental rights may be facially challenged. Under no case
may ordinary penal statutes be subjected to a facial challenge. The rationale is
obvious. If a facial challenge to a penal statute is permitted, the prosecution of crimes
may be hampered. No prosecution would be possible. A strong criticism against
employing a facial challenge in the case of penal statutes, if the same is allowed,
would effectively go against the grain of the doctrinal requirement of an existing and
concrete controversy before judicial power may be appropriately exercised. A facial
challenge against a penal statute is, at best, amorphous and speculative. It would,
essentially, force the court to consider third parties who are not before it. As I have
said in my opposition to the allowance of a facial challenge to attack penal statutes,
such a test will impair the State’s ability to deal with crime. If warranted, there would
be nothing that can hinder an accused from defeating the State’s power to prosecute
on a mere showing that, as applied to third parties, the penal statute is vague or
overbroad, notwithstanding that the law is clear as applied to him. 65 (Emphasis and
underscoring supplied)
It is settled, on the other hand, that the application of the overbreadth doctrine is
limited to a facial kind of challenge and, owing to the given rationale of a facial
challenge, applicable only to free speech cases.
By its nature, the overbreadth doctrine has to necessarily apply a facial type of
invalidation in order to plot areas of protected speech, inevitably almost
always under situations not before the court, that are impermissibly swept by the
substantially overbroad regulation. Otherwise stated, a statute cannot be properly
analyzed for being substantially overbroad if the court confines itself only to facts as
applied to the litigants.
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. 66 (Emphasis in the original
omitted; underscoring supplied.)
In restricting the overbreadth doctrine to free speech claims, the Court, in at least
two cases,67 observed that the US Supreme Court has not recognized an overbreadth
doctrine outside the limited context of the First Amendment, 68and that claims of
facial overbreadth have been entertained in cases involving statutes which, by their
terms, seek to regulate only spoken words.69 In Virginia v. Hicks,70 it was held that
rarely, if ever, will an overbreadth challenge succeed against a law or regulation that
is not specifically addressed to speech or speech-related conduct. Attacks on overly
broad statutes are justified by the "transcendent value to all society of
constitutionally protected expression."71
Since a penal statute may only be assailed for being vague as applied to petitioners,
a limited vagueness analysis of the definition of "terrorism" in RA 9372 is legally
impermissible absent an actual or imminent chargeagainst them
While Estrada did not apply the overbreadth doctrine, it did not preclude the
operation of the vagueness test on the Anti-Plunder Law as applied to the therein
petitioner, finding, however, that there was no basis to review the law "on its face
and in its entirety."72 It stressed that "statutes found vague as a matter of due
process typically are invalidated only 'as applied' to a particular defendant."73
American jurisprudence74 instructs that "vagueness challenges that do not involve
the First Amendment must be examined in light of the specific facts of the case at
hand and not with regard to the statute's facial validity."
For more than 125 years, the US Supreme Court has evaluated defendants’ claims
that criminal statutes are unconstitutionally vague, developing a doctrine hailed as
"among the most important guarantees of liberty under law."75
In this jurisdiction, the void-for-vagueness doctrine asserted under the due process
clause has been utilized in examining the constitutionality of criminal statutes. In at
least three cases,76 the Court brought the doctrine into play in analyzing an ordinance
penalizing the non-payment of municipal tax on fishponds, the crime of illegal
recruitment punishable under Article 132(b) of the Labor Code, and the vagrancy
provision under Article 202 (2) of the Revised Penal Code. Notably, the petitioners in
these three cases, similar to those in the two Romualdez and Estrada cases, were
actually charged with the therein assailed penal statute, unlike in the present case.
There is no merit in the claim that RA 9372 regulates speech so as to permit a facial
analysis of its validity
From the definition of the crime of terrorism in the earlier cited Section 3 of RA 9372,
the following elements may be culled: (1) the offender commits an act punishable
under any of the cited provisions of the Revised Penal Code, or under any of the
enumerated special penal laws; (2) the commission of the predicate crime sows and
creates a condition of widespread and extraordinary fear and panic among the
populace; and (3) the offender is actuated by the desire to coerce the government to
give in to an unlawful demand.
In insisting on a facial challenge on the invocation that the law penalizes speech,
petitioners contend that the element of "unlawful demand" in the definition of
terrorism77 must necessarily be transmitted through some form of expression
protected by the free speech clause.
The argument does not persuade. What the law seeks to penalize is conduct, not
speech.
Before a charge for terrorism may be filed under RA 9372, there must first be a
predicate crime actually committed to trigger the operation of the key qualifying
phrases in the other elements of the crime, including the coercion of the government
to accede to an "unlawful demand." Given the presence of the first element, any
attempt at singling out or highlighting the communicative component of the
prohibition cannot recategorize the unprotected conduct into a protected speech.
Petitioners’ notion on the transmission of message is entirely inaccurate, as it unduly
focuses on just one particle of an element of the crime. Almost every commission of
a crime entails some mincing of words on the part of the offender like in declaring to
launch overt criminal acts against a victim, in haggling on the amount of ransom or
conditions, or in negotiating a deceitful transaction. An analogy in one U.S.
case78 illustrated that the fact that the prohibition on discrimination in hiring on the
basis of race will require an employer to take down a sign reading "White Applicants
Only" hardly means that the law should be analyzed as one regulating speech rather
than conduct.
Utterances not elemental but inevitably incidental to the doing of the criminal
conduct alter neither the intent of the law to punish socially harmful conduct nor the
essence of the whole act as conduct and not speech. This holds true a fortiori in the
present case where the expression figures only as an inevitable incident of making
the element of coercion perceptible.
[I]t is true that the agreements and course of conduct here were as in most instances
brought about through speaking or writing. But it has never been deemed an
abridgement of freedom of speech or press to make a course of conduct illegal
merely because the conduct was, in part, initiated, evidenced, or carried out by
means of language, either spoken, written, or printed. Such an expansive
interpretation of the constitutional guaranties of speech and press would make it
practically impossible ever to enforce laws against agreements in restraint of trade
as well as many other agreements and conspiracies deemed injurious to
society.79 (italics and underscoring supplied)
Certain kinds of speech have been treated as unprotected conduct, because they
merely evidence a prohibited conduct.80 Since speech is not involved here, the Court
cannot heed the call for a facial analysis.1avvphi1
IN FINE, Estrada and the other cited authorities engaged in a vagueness analysis of
the therein subject penal statute as applied to the therein petitioners inasmuch as
they were actually charged with the pertinent crimes challenged on vagueness
grounds. The Court in said cases, however, found no basis to review the assailed
penal statute on its face and in its entirety.
In Holder, on the other hand, the US Supreme Court allowed the pre-enforcement
review of a criminal statute, challenged on vagueness grounds, since the therein
plaintiffs faced a "credible threat of prosecution" and "should not be required to
await and undergo a criminal prosecution as the sole means of seeking relief."
As earlier reflected, petitioners have established neither an actual charge nor a
credible threat of prosecution under RA 9372. Even a limited vagueness analysis of
the assailed definition of "terrorism" is thus legally impermissible. The Court reminds
litigants that judicial power neither contemplates speculative counseling on a
statute’s future effect on hypothetical scenarios nor allows the courts to be used as
an extension of a failed legislative lobbying in Congress.

WHEREFORE, the petitions are DISMISSED.

SO ORDERED.

CONCHITA CARPIO MORALES

Associate Justice
G.R. No. L-64279 April 30, 1984
ANSELMO L. PESIGAN and MARCELINO L. PESIGAN, petitioners,
vs.
JUDGE DOMINGO MEDINA ANGELES, Regional Trial Court, Caloocan City Branch
129, acting for REGIONAL TRIAL COURT of Camarines Norte, now presided over by
JUDGE NICANOR ORIÑO, Daet Branch 40; DRA. BELLA S. MIRANDA, ARNULFO V.
ZENAROSA, ET AL., respondents.
Quiazon, De Guzman Makalintal and Barot for petitioners.
The Solicitor General for respondents.
AQUINO, J.:ñé+.£ªwph!1
At issue in this case is the enforceability, before publication in the Official Gazette
of June 14, 1982, of Presidential Executive Order No. 626-A dated October 25,
1980, providing for the confiscation and forfeiture by the government of carabaos
transported from one province to another.
Anselmo L. Pesigan and Marcelo L. Pesigan, carabao dealers, transported in an Isuzu
ten-wheeler truck in the evening of April 2, 1982 twenty-six carabaos and a calf from
Sipocot, Camarines Sur with Padre Garcia, Batangas, as the destination.
They were provided with (1) a health certificate from the provincial veterinarian of
Camarines Sur, issued under the Revised Administrative Code and Presidential
Decree No. 533, the Anti-Cattle Rustling Law of 1974; (2) a permit to transport large
cattle issued under the authority of the provincial commander; and (3) three
certificates of inspection, one from the Constabulary command attesting that the
carabaos were not included in the list of lost, stolen and questionable animals; one
from the LIvestock inspector, Bureau of Animal Industry of Libmanan, Camarines Sur
and one from the mayor of Sipocot.
In spite of the permit to transport and the said four certificates, the carabaos, while
passing at Basud, Camarines Norte, were confiscated by Lieutenant Arnulfo V.
Zenarosa, the town's police station commander, and by Doctor Bella S. Miranda,
provincial veterinarian. The confiscation was basis on the aforementioned Executive
Order No. 626-A which provides "that henceforth, no carabao, regardless of age, sex,
physical condition or purpose and no carabeef shall be transported from one province
to another. The carabaos or carabeef transported in violation of this Executive Order
as amended shall be subject to confiscation and forfeiture by the government to be
distributed ... to deserving farmers through dispersal as the Director of Animal
Industry may see fit, in the case of carabaos" (78 OG 3144).
Doctor Miranda distributed the carabaos among twenty-five farmers of Basud, and
to a farmer from the Vinzons municipal nursery (Annex 1).
The Pesigans filed against Zenarosa and Doctor Miranda an action for replevin for the
recovery of the carabaos allegedly valued at P70,000 and damages of P92,000. The
replevin order could not be executed by the sheriff. In his order of April 25, 1983
Judge Domingo Medina Angeles, who heard the case at Daet and who was later
transferred to Caloocan City, dismissed the case for lack of cause of action.
The Pesigans appealed to this Court under Rule 45 of the Rules of Court and section
25 of the Interim Rules and pursuant to Republic Act No. 5440, a 1968 law which
superseded Rule 42 of the Rules of Court.
We hold that the said executive order should not be enforced against the Pesigans
on April 2, 1982 because, as already noted, it is a penal regulation published more
than two months later in the Official Gazette dated June 14, 1982. It became effective
only fifteen days thereafter as provided in article 2 of the Civil Code and section 11
of the Revised Administrative Code.
The word "laws" in article 2 (article 1 of the old Civil Code) includes circulars and
regulations which prescribe penalties. Publication is necessary to apprise the public
of the contents of the regulations and make the said penalties binding on the persons
affected thereby. (People vs. Que Po Lay, 94 Phil. 640; Lim Hoa Ting vs. Central Bank
of the Phils., 104 Phil. 573; Balbuna vs. Secretary of Education, 110 Phil. 150.)
The Spanish Supreme Court ruled that "bajo la denominacion generica de leyes, se
comprenden tambien los reglamentos, Reales decretos, Instrucciones, Circulares y
Reales ordenes dictadas de conformidad con las mismas por el Gobierno en uso de
su potestad (1 Manresa, Codigo Civil, 7th Ed., p. 146.)
Thus, in the Que Po Lay case, a person, convicted by the trial court of having violated
Central Bank Circular No. 20 and sentenced to six months' imprisonment and to pay
a fine of P1,000, was acquitted by this Court because the circular was published in
the Official Gazette three months after his conviction. He was not bound by the
circular.
That ruling applies to a violation of Executive Order No. 626-A because
its confiscation and forfeiture provision or sanction makes it a penal statute. Justice
and fairness dictate that the public must be informed of that provision by means of
publication in the Gazette before violators of the executive order can be bound
thereby.

The cases of Police Commission vs. Bello, L-29960, January 30, 1971, 37 SCRA 230
and Philippine Blooming Mills vs. Social Security System, 124 Phil. 499, cited by the
respondents, do not involve the enforcement of any penal regulation.

Commonwealth Act No. 638 requires that all Presidential executive orders having
general applicability should be published in the Official Gazette. It provides that
"every order or document which shag prescribe a penalty shall be deemed to have
general applicability and legal effect."

Indeed, the practice has always been to publish executive orders in the Gazette.
Section 551 of the Revised Administrative Code provides that even bureau
"regulations and orders shall become effective only when approved by the
Department Head and published in the Official Gazette or otherwise publicly
promulgated". (See Commissioner of Civil Service vs. Cruz, 122 Phil. 1015.)

In the instant case, the livestock inspector and the provincial veterinarian of
Camarines Norte and the head of the Public Affairs Office of the Ministry of
Agriculture were unaware of Executive Order No. 626-A. The Pesigans could not have
been expected to be cognizant of such an executive order.

It results that they have a cause of action for the recovery of the carabaos. The
summary confiscation was not in order. The recipients of the carabaos should return
them to the Pesigans. However, they cannot transport the carabaos to Batangas
because they are now bound by the said executive order. Neither can they recover
damages. Doctor Miranda and Zenarosa acted in good faith in ordering the forfeiture
and dispersal of the carabaos.

WHEREFORE, the trial court's order of dismissal and the confiscation and dispersal of
the carabaos are reversed and set aside. Respondents Miranda and Zenarosa are
ordered to restore the carabaos, with the requisite documents, to the petitioners,
who as owners are entitled to possess the same, with the right to dispose of them in
Basud or Sipocot, Camarines Sur. No costs.

SO ORDERED.1äwphï1.ñët

Makasiar, (Chairman), Concepcion, Jr., Guerrero, and Escolin, JJ., concur.

De Castro, J., took no part.

G.R. No. L-63915 April 24, 1985
LORENZO M. TAÑADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS
FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON.
JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the President ,
MELQUIADES P. DE LA CRUZ, in his capacity as Director, Malacañang Records Office,
and FLORENDO S. PABLO, in his capacity as Director, Bureau of
Printing, respondents.
ESCOLIN, J.:
Invoking the people's right to be informed on matters of public concern, a right
recognized in Section 6, Article IV of the 1973 Philippine Constitution, 1 as well as the
principle that laws to be valid and enforceable must be published in the Official
Gazette or otherwise effectively promulgated, petitioners seek a writ of mandamus
to compel respondent public officials to publish, and/or cause the publication in the
Official Gazette of various presidential decrees, letters of instructions, general orders,
proclamations, executive orders, letter of implementation and administrative orders.
Specifically, the publication of the following presidential issuances is sought:
a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179,
184, 197, 200, 234, 265, 286, 298, 303, 312, 324, 325, 326, 337, 355,
358, 359, 360, 361, 368, 404, 406, 415, 427, 429, 445, 447, 473, 486,
491, 503, 504, 521, 528, 551, 566, 573, 574, 594, 599, 644, 658, 661,
718, 731, 733, 793, 800, 802, 835, 836, 923, 935, 961, 1017-1030,
1050, 1060-1061, 1085, 1143, 1165, 1166, 1242, 1246, 1250, 1278,
1279, 1300, 1644, 1772, 1808, 1810, 1813-1817, 1819-1826, 1829-
1840, 1842-1847.
b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130,
136, 141, 150, 153, 155, 161, 173, 180, 187, 188, 192, 193, 199, 202,
204, 205, 209, 211-213, 215-224, 226-228, 231-239, 241-245, 248,
251, 253-261, 263-269, 271-273, 275-283, 285-289, 291, 293, 297-
299, 301-303, 309, 312-315, 325, 327, 343, 346, 349, 357, 358, 362,
367, 370, 382, 385, 386, 396-397, 405, 438-440, 444- 445, 473, 486,
488, 498, 501, 399, 527, 561, 576, 587, 594, 599, 600, 602, 609, 610,
611, 612, 615, 641, 642, 665, 702, 712-713, 726, 837-839, 878-879,
881, 882, 939-940, 964,997,1149-1178,1180-1278.
c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.
d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281,
1319-1526, 1529, 1532, 1535, 1538, 1540-1547, 1550-1558, 1561-
1588, 1590-1595, 1594-1600, 1606-1609, 1612-1628, 1630-1649,
1694-1695, 1697-1701, 1705-1723, 1731-1734, 1737-1742, 1744,
1746-1751, 1752, 1754, 1762, 1764-1787, 1789-1795, 1797, 1800,
1802-1804, 1806-1807, 1812-1814, 1816, 1825-1826, 1829, 1831-
1832, 1835-1836, 1839-1840, 1843-1844, 1846-1847, 1849, 1853-
1858, 1860, 1866, 1868, 1870, 1876-1889, 1892, 1900, 1918, 1923,
1933, 1952, 1963, 1965-1966, 1968-1984, 1986-2028, 2030-2044,
2046-2145, 2147-2161, 2163-2244.
e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471,
474-492, 494-507, 509-510, 522, 524-528, 531-532, 536, 538, 543-
544, 549, 551-553, 560, 563, 567-568, 570, 574, 593, 594, 598-604,
609, 611- 647, 649-677, 679-703, 705-707, 712-786, 788-852, 854-
857.
f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50,
51, 59, 76, 80-81, 92, 94, 95, 107, 120, 122, 123.
g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-
433, 436-439.
The respondents, through the Solicitor General, would have this case dismissed
outright on the ground that petitioners have no legal personality or standing to bring
the instant petition. The view is submitted that in the absence of any showing that
petitioners are personally and directly affected or prejudiced by the alleged non-
publication of the presidential issuances in question 2 said petitioners are without the
requisite legal personality to institute this mandamus proceeding, they are not being
"aggrieved parties" within the meaning of Section 3, Rule 65 of the Rules of Court,
which we quote:
SEC. 3. Petition for Mandamus.—When any tribunal, corporation,
board or person unlawfully neglects the performance of an act
which the law specifically enjoins as a duty resulting from an office,
trust, or station, or unlawfully excludes another from the use a rd
enjoyment of a right or office to which such other is entitled, and
there is no other plain, speedy and adequate remedy in the
ordinary course of law, the person aggrieved thereby may file a
verified petition in the proper court alleging the facts with certainty
and praying that judgment be rendered commanding the
 defendant, immediately or at some other specified time, to do the
act required to be done to Protect the rights of the petitioner, and
to pay the damages sustained by the petitioner by reason of the
wrongful acts of the defendant.
Upon the other hand, petitioners maintain that since the subject of the petition
concerns a public right and its object is to compel the performance of a public duty,
they need not show any specific interest for their petition to be given due course.
The issue posed is not one of first impression. As early as the 1910 case of Severino
vs. Governor General, 3 this Court held that while the general rule is that "a writ of
mandamus would be granted to a private individual only in those cases where he has
some private or particular interest to be subserved, or some particular right to be
protected, independent of that which he holds with the public at large," and "it is for
the public officers exclusively to apply for the writ when public rights are to be
subserved [Mithchell vs. Boardmen, 79 M.e., 469]," nevertheless, "when the question
is one of public right and the object of the mandamus is to procure the enforcement
of a public duty, the people are regarded as the real party in interest and the relator
at whose instigation the proceedings are instituted need not show that he has any
legal or special interest in the result, it being sufficient to show that he is a citizen and
as such interested in the execution of the laws [High, Extraordinary Legal Remedies,
3rd ed., sec. 431].
Thus, in said case, this Court recognized the relator Lope Severino, a private
individual, as a proper party to the mandamus proceedings brought to compel the
Governor General to call a special election for the position of municipal president in
the town of Silay, Negros Occidental. Speaking for this Court, Mr. Justice Grant T.
Trent said:
We are therefore of the opinion that the weight of authority
supports the proposition that the relator is a proper party to
proceedings of this character when a public right is sought to be
enforced. If the general rule in America were otherwise, we think
that it would not be applicable to the case at bar for the reason
'that it is always dangerous to apply a general rule to a particular
case without keeping in mind the reason for the rule, because, if
under the particular circumstances the reason for the rule does not
exist, the rule itself is not applicable and reliance upon the rule may
well lead to error'
No reason exists in the case at bar for applying the general rule
insisted upon by counsel for the respondent. The circumstances
which surround this case are different from those in the United
States, inasmuch as if the relator is not a proper party to these
proceedings no other person could be, as we have seen that it is
not the duty of the law officer of the Government to appear and
represent the people in cases of this character.
The reasons given by the Court in recognizing a private citizen's legal personality in
the aforementioned case apply squarely to the present petition. Clearly, the right
sought to be enforced by petitioners herein is a public right recognized by no less
than the fundamental law of the land. If petitioners were not allowed to institute this
proceeding, it would indeed be difficult to conceive of any other person to initiate
the same, considering that the Solicitor General, the government officer generally
empowered to represent the people, has entered his appearance for respondents in
this case.
Respondents further contend that publication in the Official Gazette is not a sine qua
non requirement for the effectivity of laws where the laws themselves provide for
their own effectivity dates. It is thus submitted that since the presidential issuances
in question contain special provisions as to the date they are to take effect,
publication in the Official Gazette is not indispensable for their effectivity. The point
stressed is anchored on Article 2 of the Civil Code:
Art. 2. Laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it is
otherwise provided, ...
The interpretation given by respondent is in accord with this Court's construction of
said article. In a long line of decisions,4 this Court has ruled that publication in the
Official Gazette is necessary in those cases where the legislation itself does not
provide for its effectivity date-for then the date of publication is material for
determining its date of effectivity, which is the fifteenth day following its publication-
but not when the law itself provides for the date when it goes into effect.
Respondents' argument, however, is logically correct only insofar as it equates the
effectivity of laws with the fact of publication. Considered in the light of other
statutes applicable to the issue at hand, the conclusion is easily reached that said
Article 2 does not preclude the requirement of publication in the Official Gazette,
even if the law itself provides for the date of its effectivity. Thus, Section 1 of
Commonwealth Act 638 provides as follows:
Section 1. There shall be published in the Official Gazette [1] all
important legisiative acts and resolutions of a public nature of the,
Congress of the Philippines; [2] all executive and administrative
orders and proclamations, except such as have no general
 applicability; [3] decisions or abstracts of decisions of the Supreme
Court and the Court of Appeals as may be deemed by said courts of
sufficient importance to be so published; [4] such documents or
classes of documents as may be required so to be published by law;
and [5] such documents or classes of documents as the President
of the Philippines shall determine from time to time to have general
applicability and legal effect, or which he may authorize so to be
published. ...
The clear object of the above-quoted provision is to give the general public adequate
notice of the various laws which are to regulate their actions and conduct as citizens.
Without such notice and publication, there would be no basis for the application of
the maxim "ignorantia legis non excusat." It would be the height of injustice to punish
or otherwise burden a citizen for the transgression of a law of which he had no notice
whatsoever, not even a constructive one.
Perhaps at no time since the establishment of the Philippine Republic has the
publication of laws taken so vital significance that at this time when the people have
bestowed upon the President a power heretofore enjoyed solely by the legislature.
While the people are kept abreast by the mass media of the debates and
deliberations in the Batasan Pambansa—and for the diligent ones, ready access to
the legislative records—no such publicity accompanies the law-making process of the
President. Thus, without publication, the people have no means of knowing what
presidential decrees have actually been promulgated, much less a definite way of
informing themselves of the specific contents and texts of such decrees. As the
Supreme Court of Spain ruled: "Bajo la denominacion generica de leyes, se
comprenden tambien los reglamentos, Reales decretos, Instrucciones, Circulares y
Reales ordines dictadas de conformidad con las mismas por el Gobierno en uso de su
potestad.5
The very first clause of Section I of Commonwealth Act 638 reads: "There shall be
published in the Official Gazette ... ." The word "shall" used therein imposes upon
respondent officials an imperative duty. That duty must be enforced if the
Constitutional right of the people to be informed on matters of public concern is to
be given substance and reality. The law itself makes a list of what should be published
in the Official Gazette. Such listing, to our mind, leaves respondents with no
discretion whatsoever as to what must be included or excluded from such
publication.
The publication of all presidential issuances "of a public nature" or "of general
applicability" is mandated by law. Obviously, presidential decrees that provide for
fines, forfeitures or penalties for their violation or otherwise impose a burden or. the
people, such as tax and revenue measures, fall within this category. Other
presidential issuances which apply only to particular persons or class of persons such
as administrative and executive orders need not be published on the assumption that
they have been circularized to all concerned. 6
It is needless to add that the publication of presidential issuances "of a public nature"
or "of general applicability" is a requirement of due process. It is a rule of law that
before a person may be bound by law, he must first be officially and specifically
informed of its contents. As Justice Claudio Teehankee said in Peralta vs. COMELEC 7:
In a time of proliferating decrees, orders and letters of instructions
which all form part of the law of the land, the requirement of due
process and the Rule of Law demand that the Official Gazette as
the official government repository promulgate and publish the
texts of all such decrees, orders and instructions so that the people
may know where to obtain their official and specific contents.
The Court therefore declares that presidential issuances of general application, which
have not been published, shall have no force and effect. Some members of the Court,
quite apprehensive about the possible unsettling effect this decision might have on
acts done in reliance of the validity of those presidential decrees which were
published only during the pendency of this petition, have put the question as to
whether the Court's declaration of invalidity apply to P.D.s which had been enforced
or implemented prior to their publication. The answer is all too familiar. In similar
situations in the past this Court had taken the pragmatic and realistic course set forth
in Chicot County Drainage District vs. Baxter Bank 8 to wit:
The courts below have proceeded on the theory that the Act of
Congress, having been found to be unconstitutional, was not a law;
that it was inoperative, conferring no rights and imposing no duties,
and hence affording no basis for the challenged decree. Norton v.
Shelby County, 118 U.S. 425, 442; Chicago, 1. & L. Ry. Co. v. Hackett,
228 U.S. 559, 566. It is quite clear, however, that such broad
statements as to the effect of a determination of
unconstitutionality must be taken with qualifications. The actual
existence of a statute, prior to such a determination, is an operative
fact and may have consequences which cannot justly be ignored.
The past cannot always be erased by a new judicial declaration. The
effect of the subsequent ruling as to invalidity may have to be
considered in various aspects-with respect to particular conduct,
private and official. Questions of rights claimed to have become
vested, of status, of prior determinations deemed to have finality
and acted upon accordingly, of public policy in the light of the
nature both of the statute and of its previous application, demand
 examination. These questions are among the most difficult of those
which have engaged the attention of courts, state and federal and
it is manifest from numerous decisions that an all-inclusive
statement of a principle of absolute retroactive invalidity cannot be
justified.

Consistently with the above principle, this Court in Rutter vs. Esteban 9 sustained the
right of a party under the Moratorium Law, albeit said right had accrued in his favor
before said law was declared unconstitutional by this Court.

Similarly, the implementation/enforcement of presidential decrees prior to their

publication in the Official Gazette is "an operative fact which may have consequences
which cannot be justly ignored. The past cannot always be erased by a new judicial
declaration ... that an all-inclusive statement of a principle of absolute retroactive
invalidity cannot be justified."

From the report submitted to the Court by the Clerk of Court, it appears that of the
presidential decrees sought by petitioners to be published in the Official Gazette, only
Presidential Decrees Nos. 1019 to 1030, inclusive, 1278, and 1937 to 1939, inclusive,
have not been so published. 10 Neither the subject matters nor the texts of these PDs
can be ascertained since no copies thereof are available. But whatever their subject
matter may be, it is undisputed that none of these unpublished PDs has ever been
implemented or enforced by the government. In Pesigan vs. Angeles, 11 the Court,
through Justice Ramon Aquino, ruled that "publication is necessary to apprise the
public of the contents of [penal] regulations and make the said penalties binding on
the persons affected thereby. " The cogency of this holding is apparently recognized
by respondent officials considering the manifestation in their comment that "the
government, as a matter of policy, refrains from prosecuting violations of criminal
laws until the same shall have been published in the Official Gazette or in some other
publication, even though some criminal laws provide that they shall take effect
immediately.

WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette
all unpublished presidential issuances which are of general application, and unless so
published, they shall have no binding force and effect.

SO ORDERED.

Relova, J., concurs.

Aquino, J., took no part.

Concepcion, Jr., J., is on leave.

G.R. No. L-63915 December 29, 1986
LORENZO M. TAÑ;ADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS
FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. (MABINI), petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON.
JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the President,
MELQUIADES P. DE LA CRUZ, ETC., ET AL., respondents.
RESOLUTION
CRUZ, J.:
Due process was invoked by the petitioners in demanding the disclosure of a number
of presidential decrees which they claimed had not been published as required by
law. The government argued that while publication was necessary as a rule, it was
not so when it was "otherwise provided," as when the decrees themselves declared
that they were to become effective immediately upon their approval. In the decision
of this case on April 24, 1985, the Court affirmed the necessity for the publication of
some of these decrees, declaring in the dispositive portion as follows:
WHEREFORE, the Court hereby orders respondents to publish in the Official
Gazette all unpublished presidential issuances which are of general
application, and unless so published, they shall have no binding force and
effect.
The petitioners are now before us again, this time to move for
reconsideration/clarification of that decision. 1Specifically, they ask the following
questions:
1. What is meant by "law of public nature" or "general applicability"?
2. Must a distinction be made between laws of general applicability and laws which
are not?
3. What is meant by "publication"?
4. Where is the publication to be made?
5. When is the publication to be made?
Resolving their own doubts, the petitioners suggest that there should be no
distinction between laws of general applicability and those which are not; that
publication means complete publication; and that the publication must be made
forthwith in the Official Gazette. 2
In the Comment 3 required of the then Solicitor General, he claimed first that the
motion was a request for an advisory opinion and should therefore be dismissed, and,
on the merits, that the clause "unless it is otherwise provided" in Article 2 of the Civil
Code meant that the publication required therein was not always imperative; that
publication, when necessary, did not have to be made in the Official Gazette; and
that in any case the subject decision was concurred in only by three justices and
consequently not binding. This elicited a Reply 4 refuting these arguments. Came next
the February Revolution and the Court required the new Solicitor General to file a
Rejoinder in view of the supervening events, under Rule 3, Section 18, of the Rules of
Court. Responding, he submitted that issuances intended only for the internal
administration of a government agency or for particular persons did not have to be
'Published; that publication when necessary must be in full and in the Official Gazette;
and that, however, the decision under reconsideration was not binding because it
was not supported by eight members of this Court. 5
The subject of contention is Article 2 of the Civil Code providing as follows:
ART. 2. Laws shall take effect after fifteen days following the completion of
their publication in the Official Gazette, unless it is otherwise provided. This
Code shall take effect one year after such publication.
After a careful study of this provision and of the arguments of the parties, both on
the original petition and on the instant motion, we have come to the conclusion and
so hold, that the clause "unless it is otherwise provided" refers to the date of
effectivity and not to the requirement of publication itself, which cannot in any event
be omitted. This clause does not mean that the legislature may make the law
effective immediately upon approval, or on any other date, without its previous
publication.
Publication is indispensable in every case, but the legislature may in its discretion
provide that the usual fifteen-day period shall be shortened or extended. An
example, as pointed out by the present Chief Justice in his separate concurrence in
the original decision, 6 is the Civil Code which did not become effective after fifteen
days from its publication in the Official Gazette but "one year after such publication."
The general rule did not apply because it was "otherwise provided. "
It is not correct to say that under the disputed clause publication may be dispensed
with altogether. The reason. is that such omission would offend due process insofar
as it would deny the public knowledge of the laws that are supposed to govern the
legislature could validly provide that a law e effective immediately upon its approval
notwithstanding the lack of publication (or after an unreasonably short period after
publication), it is not unlikely that persons not aware of it would be prejudiced as a
result and they would be so not because of a failure to comply with but simply
because they did not know of its existence, Significantly, this is not true only of penal
laws as is commonly supposed. One can think of many non-penal measures, like a
law on prescription, which must also be communicated to the persons they may
affect before they can begin to operate.
We note at this point the conclusive presumption that every person knows the law,
which of course presupposes that the law has been published if the presumption is
to have any legal justification at all. It is no less important to remember that Section
6 of the Bill of Rights recognizes "the right of the people to information on matters
of public concern," and this certainly applies to, among others, and indeed especially,
the legislative enactments of the government.
The term "laws" should refer to all laws and not only to those of general application,
for strictly speaking all laws relate to the people in general albeit there are some that
do not apply to them directly. An example is a law granting citizenship to a particular
individual, like a relative of President Marcos who was decreed instant naturalization.
It surely cannot be said that such a law does not affect the public although it
unquestionably does not apply directly to all the people. The subject of such law is a
matter of public interest which any member of the body politic may question in the
political forums or, if he is a proper party, even in the courts of justice. In fact, a law
without any bearing on the public would be invalid as an intrusion of privacy or as
class legislation or as an ultra vires act of the legislature. To be valid, the law must
invariably affect the public interest even if it might be directly applicable only to one
individual, or some of the people only, and t to the public as a whole.
We hold therefore that all statutes, including those of local application and private
laws, shall be published as a condition for their effectivity, which shall begin fifteen
days after publication unless a different effectivity date is fixed by the legislature.
Covered by this rule are presidential decrees and executive orders promulgated by
the President in the exercise of legislative powers whenever the same are validly
delegated by the legislature or, at present, directly conferred by the Constitution.
administrative rules and regulations must a also be published if their purpose is to
enforce or implement existing law pursuant also to a valid delegation.
Interpretative regulations and those merely internal in nature, that is, regulating only
the personnel of the administrative agency and not the public, need not be published.
Neither is publication required of the so-called letters of instructions issued by
administrative superiors concerning the rules or guidelines to be followed by their
subordinates in the performance of their duties.
Accordingly, even the charter of a city must be published notwithstanding that it
applies to only a portion of the national territory and directly affects only the
inhabitants of that place. All presidential decrees must be published, including even,
say, those naming a public place after a favored individual or exempting him from
certain prohibitions or requirements. The circulars issued by the Monetary Board
must be published if they are meant not merely to interpret but to "fill in the details"
of the Central Bank Act which that body is supposed to enforce.
However, no publication is required of the instructions issued by, say, the Minister of
Social Welfare on the case studies to be made in petitions for adoption or the rules
laid down by the head of a government agency on the assignments or workload of
his personnel or the wearing of office uniforms. Parenthetically, municipal ordinances
are not covered by this rule but by the Local Government Code.
We agree that publication must be in full or it is no publication at all since its purpose
is to inform the public of the contents of the laws. As correctly pointed out by the
petitioners, the mere mention of the number of the presidential decree, the title of
such decree, its whereabouts (e.g., "with Secretary Tuvera"), the supposed date of
effectivity, and in a mere supplement of the Official Gazette cannot satisfy the
publication requirement. This is not even substantial compliance. This was the
manner, incidentally, in which the General Appropriations Act for FY 1975, a
presidential decree undeniably of general applicability and interest, was "published"
by the Marcos administration. 7 The evident purpose was to withhold rather than
disclose information on this vital law.
Coming now to the original decision, it is true that only four justices were
categorically for publication in the Official Gazette 8 and that six others felt that
publication could be made elsewhere as long as the people were sufficiently
informed. 9 One reserved his vote 10 and another merely acknowledged the need for
due publication without indicating where it should be made. 11 It is therefore
necessary for the present membership of this Court to arrive at a clear consensus on
this matter and to lay down a binding decision supported by the necessary vote.
There is much to be said of the view that the publication need not be made in the
Official Gazette, considering its erratic releases and limited readership. Undoubtedly,
newspapers of general circulation could better perform the function of
communicating, the laws to the people as such periodicals are more easily available,
have a wider readership, and come out regularly. The trouble, though, is that this
kind of publication is not the one required or authorized by existing law. As far as we
know, no amendment has been made of Article 2 of the Civil Code. The Solicitor
General has not pointed to such a law, and we have no information that it exists. If it Official Gazette, to become effective only after fifteen days from their publication, or
does, it obviously has not yet been published. on another date specified by the legislature, in accordance with Article 2 of the Civil
Code.
At any rate, this Court is not called upon to rule upon the wisdom of a law or to repeal
or modify it if we find it impractical. That is not our function. That function belongs SO ORDERED.
to the legislature. Our task is merely to interpret and apply the law as conceived and
approved by the political departments of the government in accordance with the Teehankee, C.J., Feria, Yap, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr., and
prescribed procedure. Consequently, we have no choice but to pronounce that under Paras, JJ., concur.
Article 2 of the Civil Code, the publication of laws must be made in the Official Gazett
and not elsewhere, as a requirement for their effectivity after fifteen days from such
publication or after a different period provided by the legislature.

We also hold that the publication must be made forthwith or at least as soon as
possible, to give effect to the law pursuant to the said Article 2. There is that
possibility, of course, although not suggested by the parties that a law could be
rendered unenforceable by a mere refusal of the executive, for whatever reason, to
cause its publication as required. This is a matter, however, that we do not need to
examine at this time.

Finally, the claim of the former Solicitor General that the instant motion is a request
for an advisory opinion is untenable, to say the least, and deserves no further
comment.

The days of the secret laws and the unpublished decrees are over. This is once again
an open society, with all the acts of the government subject to public scrutiny and
available always to public cognizance. This has to be so if our country is to remain
democratic, with sovereignty residing in the people and all government authority
emanating from them.

Although they have delegated the power of legislation, they retain the authority to
review the work of their delegates and to ratify or reject it according to their lights,
through their freedom of expression and their right of suffrage. This they cannot do
if the acts of the legislature are concealed.

Laws must come out in the open in the clear light of the sun instead of skulking in the
shadows with their dark, deep secrets. Mysterious pronouncements and rumored
rules cannot be recognized as binding unless their existence and contents are
confirmed by a valid publication intended to make full disclosure and give proper
notice to the people. The furtive law is like a scabbarded saber that cannot feint parry
or cut unless the naked blade is drawn.

WHEREFORE, it is hereby declared that all laws as above defined shall immediately
upon their approval, or as soon thereafter as possible, be published in full in the
G.R. No. 187587 June 5, 2013 Again, on 7 January 1986, President Marcos issued Proclamation No. 2476, further
amending Proclamation No. 423, which excluded barangaysLower Bicutan, Upper
NAGKAKAISANG MARALITA NG SITIO MASIGASIG, INC., Petitioner, Bicutan and Signal Village from the operation of Proclamation No. 423 and declared
vs. it open for disposition under the provisions of Republic Act Nos. (R.A.) 274 and 730.
MILITARY SHRINE SERVICES - PHILIPPINE VETERANS AFFAIRS OFFICE, DEPARTMENT
OF NATIONAL DEFENSE, Respondent. At the bottom of Proclamation No. 2476, President Marcos made a handwritten
addendum, which reads:
x-----------------------x
"P.S. – This includes Western Bicutan
G.R. No. 187654
(SGD.) Ferdinand E. Marcos"2
WESTERN BICUTAN LOT OWNERS ASSOCIATION, INC., represented by its Board of
Directors, Petitioner, The crux of the controversy started when Proclamation No. 2476 was published in
vs. the Official Gazette3 on 3 February 1986, without the above-quoted addendum.
MILITARY SHRINE SERVICES - PHILIPPINE VETERANS AFFAIRS OFFICE, DEPARTMENT
OF NATIONAL DEFENSE, Respondent. Years later, on 16 October 1987, President Corazon C. Aquino (President Aquino)
issued Proclamation No. 172 which substantially reiterated Proclamation No. 2476,
DECISION as published, but this time excluded Lots 1 and 2 of Western Bicutan from the
operation of Proclamation No. 423 and declared the said lots open for disposition
SERENO, CJ.: under the provisions of R.A. 274 and 730.

Before us are consolidated Petitions for Review under Rule 45 of the Rules of Court
assailing the Decision1promulgated on 29 April 2009 of the Court of Appeals in CA-
G.R. SP No. 97925.
THE FACTS
The facts, as culled from the records, are as follows:
On 12 July 1957, by virtue of Proclamation No. 423, President Carlos P. Garcia
reserved parcels of land in the Municipalities of Pasig, Taguig, Parañaque, Province
of Rizal and Pasay City for a military reservation. The military reservation, then known
as Fort William McKinley, was later on renamed Fort Andres Bonifacio (Fort
Bonifacio).
On 28 May 1967, President Ferdinand E. Marcos (President Marcos) issued
Proclamation No. 208, amending Proclamation No. 423, which excluded a certain
area of Fort Bonifacio and reserved it for a national shrine. The excluded area is now
known as Libingan ng mga Bayani, which is under the administration of herein
respondent Military Shrine Services – Philippine Veterans Affairs Office (MSS-PVAO).
Memorandum Order No. 119, implementing Proclamation No. 172, was issued on the
same day.
Through the years, informal settlers increased and occupied some areas of Fort
Bonifacio including portions of the Libingan ng mga Bayani. Thus, Brigadier General
Fredelito Bautista issued General Order No. 1323 creating Task Force Bantay (TFB),
primarily to prevent further unauthorized occupation and to cause the demolition of
illegal structures at Fort Bonifacio.
On 27 August 1999, members of petitioner Nagkakaisang Maralita ng Sitio Masigasig,
Inc. (NMSMI) filed a Petition with the Commission on Settlement of Land Problems
(COSLAP), where it was docketed as COSLAP Case No. 99-434. The Petition prayed for
the following: (1) the reclassification of the areas they occupied, covering Lot 3 of
SWO-13-000-298 of Western Bicutan, from public land to alienable and disposable
land pursuant to Proclamation No. 2476; (2) the subdivision of the subject lot by the
Director of Lands; and (3) the Land Management Bureau’s facilitation of the
distribution and sale of the subject lot to its bona fide occupants.4
On 1 September 2000, petitioner Western Bicutan Lot Owners Association, Inc.
(WBLOAI) filed a Petition-in-Intervention substantially praying for the same reliefs as
those prayed for by NMSMI with regard to the area the former then occupied
covering Lot 7 of SWO-00-001302 in Western Bicutan.5
Thus, on 1 September 2006, COSLAP issued a Resolution 6 granting the Petition and
declaring the portions of land in question alienable and disposable, with Associate
Commissioner Lina Aguilar-General dissenting.7
DENIED. SO ORDERED.11 (Emphasis in the original)
Both NMSMI12 and WBLOAI13 appealed the said Decision by filing their respective
Petitions for Review with this Court under Rule 45 of the Rules of Court.
THE ISSUES

The COSLAP ruled that the handwritten addendum of President Marcos was an
integral part of Proclamation No. 2476, and was therefore, controlling. The intention
of the President could not be defeated by the negligence or inadvertence of others.
Further, considering that Proclamation
No. 2476 was done while the former President was exercising legislative powers, it
could not be amended, repealed or superseded, by a mere executive enactment.
Thus, Proclamation No. 172 could not have superseded much less displaced
Proclamation No. 2476, as the latter was issued on October 16, 1987 when President
Aquino’s legislative power had ceased.
Petitioner NMSMI raises the following issues:
I
WHETHER OR NOT THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN
RULING THAT PROCLAMATION NO. 2476 DID NOT INCLUDE ANY PORTION OF
WESTERN BICUTAN AS THE HANDWRITTEN NOTATION BY PRESIDENT MARCOS ON
THE SAID PROCLAMATION WAS NOT PUBLISHED IN THE OFFICIAL GAZETTE.
II

In her Dissenting Opinion, Associate Commissioner Lina AguilarGeneral stressed that

WHETHER OR NOT THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN
pursuant to Article 2 of the Civil Code, publication is indispensable in every case.
RULING THAT PROCLAMATION NO. 172 LIKEWISE EXCLUDED THE PORTION OF LAND
Likewise, she held that when the provision of the law is clear and unambiguous so
OCCUPIED BY MEMBER OF HEREIN PETITIONER.
that there is no occasion for the court to look into legislative intent, the law must be
taken as it is, devoid of judicial addition or subtraction. 8 Finally, she maintained that
III
the Commission had no authority to supply the addendum originally omitted in the
published version of Proclamation No. 2476, as to do so would be tantamount to
encroaching on the field of the legislature. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN NOT
CONSIDERING THAT THE HON. COSLAP HAS BROAD POWERS TO RECOMMEND TO
THE PRESIDENT >INNOVATIVE MEASURES TO RESOLVE EXPEDITIOUSLY VARIOUS
Herein respondent MSS-PVAO filed a Motion for Reconsideration,9 which was denied
LAND CASES.14
by the COSLAP in a Resolution dated 24 January 2007.10

On the other hand, petitioner WBLOAI raises this sole issue:

MSS-PVAO filed a Petition with the Court of Appeals seeking to reverse the COSLAP
Resolutions dated 1 September 2006 and 24 January 2007.
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT
THE SUBJECT PROPERTY WAS NOT DECLARED ALIENABLE AND DISPOSABLE BY
Thus, on 29 April 2009, the then Court of Appeals First Division rendered the assailed
VIRTUE OF PROCLAMATION NO. 2476 BECAUSE THE HANDWRITTEN ADDENDUM OF
Decision granting MSS-PVAO’s Petition, the dispositive portion of which reads:
PRESIDENT FERDINAND E. MARCOS INCLUDING WESTERN BICUTAN IN
PROCLAMATION NO. 2476 WAS NOT INCLUDED IN THE PUBLICATION.15
IN VIEW OF ALL THE FOREGOING, the instant petition is hereby GRANTED. The
Resolutions dated September 1, 2006 and January 24, 2007 issued by the Commission
Both Petitions boil down to the principal issue of whether the Court of Appeals erred
on the Settlement of Land Problems in COSLAP Case No. 99-434 are hereby REVERSED
in ruling that the subject lots were not alienable and disposable by virtue of
and SET ASIDE. In lieu thereof, the petitions of respondents in COSLAP Case No. 99-
Proclamation No. 2476 on the ground that the handwritten addendum of President
434 are DISMISSED, for lack of merit, as discussed herein. Further, pending urgent
Marcos was not included in the publication of the said law.
motions filed by respondents are likewise
THE COURT’S RULING
We deny the Petitions for lack of merit.
Considering that petitioners were occupying Lots 3 and 7 of Western Bicutan (subject
lots), their claims were anchored on the handwritten addendum of President Marcos
to Proclamation No. 2476. They allege that the former President intended to include
all Western Bicutan in the reclassification of portions of Fort Bonifacio as disposable
public land when he made a notation just below the printed version of Proclamation
No. 2476.
However, it is undisputed that the handwritten addendum was not included when
Proclamation No. 2476 was published in the Official Gazette.
The resolution of whether the subject lots were declared as reclassified and
disposable lies in the determination of whether the handwritten addendum of
President Marcos has the force and effect of law. In relation thereto, Article 2 of the
Civil Code expressly provides:
ART. 2. Laws shall take effect after fifteen days following the completion of their
publication in the Official Gazette, unless it is otherwise provided. This Code shall take
effect one year after such publication.
Under the above provision, the requirement of publication is indispensable to give
effect to the law, unless the law itself has otherwise provided. The phrase "unless
otherwise provided" refers to a different effectivity date other than after fifteen days
following the completion of the law’s publication in the Official Gazette, but does not
imply that the requirement of publication may be dispensed with. The issue of the
requirement of publication was already settled in the landmark case Tañada v. Hon.
Tuvera,16 in which we had the occasion to rule thus:
Publication is indispensable in every case, but the legislature may in its discretion
provide that the usual fifteen-day period shall be shortened or extended. An
example, as pointed out by the present Chief Justice in his separate concurrence in
the original decision, is the Civil Code which did not become effective after fifteen
days from its publication in the Official Gazette but "one year after such publication."
The general rule did not apply because it was "otherwise provided."
It is not correct to say that under the disputed clause publication may be dispensed
with altogether. The reason is that such omission would offend due process insofar
as it would deny the public knowledge of the laws that are supposed to govern it.
Surely, if the legislature could validly provide that a law shall become effective
immediately upon its approval notwithstanding the lack of publication (or after an
unreasonably short period after publication), it is not unlikely that persons not aware
of it would be prejudiced as a result; and they would be so not because of a failure
to comply with it but simply because they did not know of its existence. Significantly,
this is not true only of penal laws as is commonly supposed. One can think of many
non-penal measures, like a law on prescription, which must also be communicated
to the persons they may affect before they can begin to operate.
xxxx
The term "laws" should refer to all laws and not only to those of general application,
for strictly speaking all laws relate to the people in general albeit there are some that
do not apply to them directly. An example is a law granting citizenship to a particular
individual, like a relative of President Marcos who was decreed instant naturalization.
It surely cannot be said that such a law does not affect the public although it
unquestionably does not apply directly to all the people. The subject of such law is a
matter of public interest which any member of the body politic may question in the
political forums or, if he is a proper party, even in the courts of justice. In fact, a law
without any bearing on the public would be invalid as an intrusion of privacy or as
class legislation or as an ultra vires act of the legislature. To be valid, the law must
invariably affect the public interest even if it might be directly applicable only to one
individual, or some of the people only, and not to the public as a whole.
We hold therefore that all statutes, including those of local application and private
laws, shall be published as a condition for their effectivity, which shall begin fifteen
days after publication unless a different effectivity date is fixed by the legislature.
Covered by this rule are presidential decrees and executive orders promulgated by
the President in the exercise of legislative powers whenever the same are validly
delegated by the legislature or, at present, directly conferred by the Constitution.
Administrative rules and regulations must also be published if their purpose is to
enforce or implement existing law pursuant also to a valid delegation.
xxxx
Accordingly, even the charter of a city must be published notwithstanding that it
applies to only a portion of the national territory and directly affects only the
inhabitants of that place. All presidential decrees must be published, including even,
say, those naming a public place after a favored individual or exempting him from
certain prohibitions or requirements. The circulars issued by the Monetary Board
must be published if they are meant not merely to interpret but to "fill in the details"
of the Central Bank Act which that body is supposed to enforce.
xxxx
We agree that the publication must be in full or it is no publication at all since its WHEREFORE, in view of the foregoing, the instant petitions are hereby DENIED for
purpose is to inform the public of the contents of the laws. As correctly pointed out lack of merit. The assailed Decision of the Court of Appeals in CA-G.R. CV No. 97925
by the petitioners, the mere mention of the number of the presidential decree, the dated 29 April 2009 is AFFIRMED in toto. Accordingly, this Court's status quo order
title of such decree, its whereabouts (e.g., "with Secretary Tuvera"), the supposed dated 17 June 2009 is hereby LIFTED. Likewise, all pending motions to cite respondent
date of effectivity, and in a mere supplement of the Official Gazette cannot satisfy in contempt is DENIED, having been rendered moot. No costs.
the publication requirement.1âwphi1 This is not even substantial compliance. This
was the manner, incidentally, in which the General Appropriations Act for FY 1975, a SO ORDERED.
presidential decree undeniably of general applicability and interest, was "published"
by the Marcos administration. The evident purpose was to withhold rather than MARIA LOURDES P. A. SERENO
disclose information on this vital law. Chief Justice, Chairperson

xxxx

Laws must come out in the open in the clear light of the sun instead of skulking in the
shadows with their dark, deep secrets. Mysterious pronouncements and rumored
rules cannot be recognized as binding unless their existence and contents are
confirmed by a valid publication intended to make full disclosure and give proper
notice to the people. The furtive law is like a scabbarded saber that cannot feint,
parry or cut unless the naked blade is drawn. (Emphases supplied)

Applying the foregoing ruling to the instant case, this Court cannot rely on a
handwritten note that was not part of Proclamation No. 2476 as published. Without
publication, the note never had any legal force and effect.

Furthermore, under Section 24, Chapter 6, Book I of the Administrative Code, "the
publication of any law, resolution or other official documents in the Official Gazette
shall be prima facie evidence of its authority." Thus, whether or not President Marcos
intended to include Western Bicutan is not only irrelevant but speculative. Simply
put, the courts may not speculate as to the probable intent of the legislature apart
from the words appearing in the law.17 This Court cannot rule that a word appears in
the law when, evidently, there is none. In Pagpalain Haulers, Inc. v. Hon. Trajano, 18 we
ruled that "under Article 8 of the Civil Code, 'judicial decisions applying or interpreting
the laws or the Constitution shall form a part of the legal system of the Philippines.'
This does not mean, however, that courts can create law. The courts exist for
interpreting the law, not for enacting it. To allow otherwise would be violative of the
principle of separation of powers, inasmuch as the sole function of our courts is to
apply or interpret the laws, particularly where gaps or lacunae exist or where
ambiguities becloud issues, but it will not arrogate unto itself the task of legislating."
The remedy sought in these Petitions is not judicial interpretation, but another
legislation that would amend the law ‘to include petitioners' lots in the
reclassification.
G.R. No. L-32485 October 22, 1970
IN THE MATTER OF THE PETITION FOR THE DECLARATION OF THE PETITIONER'S
RIGHTS AND DUTIES UNDER SEC. 8 OF R.A. No. 6132.
KAY VILLEGAS KAMI, INC., petitioner.
MAKASIAR, J.:.
This petition for declaratory relief was filed by Kay Villegas Kami, Inc., claiming to be
a duly recognized and existing non-stock and non-profit corporation created under
the laws of the land, and praying for a determination of the validity of Sec. 8 of R.A.
No. 6132 and a declaration of petitioner's rights and duties thereunder. In paragraph
7 of its petition, petitioner avers that it has printed materials designed to propagate
its ideology and program of government, which materials include Annex B; and that
in paragraph 11 of said petition, petitioner intends to pursue its purposes by
supporting delegates to the Constitutional Convention who will propagate its
ideology.
Petitioner, in paragraph 7 of its petition, actually impugns because it quoted, only the
first paragraph of Sec. 8(a) on the ground that it violates the due process clause, right
of association, and freedom of expression and that it is an ex post facto law.
The first three grounds were overruled by this Court when it held that the questioned
provision is a valid limitation on the due process, freedom of expression, freedom of
association, freedom of assembly and equal protection clauses; for the same is
designed to prevent the clear and present danger of the twin substantive evils,
namely, the prostitution of electoral process and denial of the equal protection of
the laws. Moreover, under the balancing-of-interests test, the cleansing of the
electoral process, the guarantee of equal change for all candidates, and the
independence of the delegates who must be "beholden to no one but to God, country
and conscience," are interests that should be accorded primacy.1
The petitioner should therefore be accordingly guided by the pronouncements in the
cases of Imbong and Gonzales.2
The claim of petitioner that the challenged provision constitutes an ex post facto law
is likewise untenable.
An ex post facto law is one which:.
(1) makes criminal an act done before the passage of the law and
which was innocent when done, and punishes such an act;
(2) aggravates a crime, or makes it greater than it was, when
committed;
(3) changes the punishment and inflicts a greater punishment than
the law annexed to the crime when committed;
(4) alters the legal rules of evidence, and authorizes conviction
upon less or different testimony than the law required at the time
of the commission of the offense;
(5) assuming to regulate civil rights and remedies only, in effect
imposes penalty or deprivation of a right for something which
when done was lawful; and
(6) deprives a person accused of a crime of some lawful protection
to which he has become entitled, such as the protection of a former
conviction or acquittal, or a proclamation of amnesty.3
From the aforesaid definition as well as classification of ex post facto laws, the
constitutional inhibition refers only to criminal laws which are given retroactive
effect.4
While it is true that Sec. 18 penalizes a violation of any provision of R.A. No. 6132
including Sec. 8(a) thereof, the penalty is imposed only for acts committed after the
approval of the law and not those perpetrated prior thereto. There is nothing in the
law that remotely insinuates that Secs. 8(a) and 18, or any other provision thereof,
shall apply to acts carried out prior to its approval. On the contrary, See. 23 directs
that the entire law shall be effective upon its approval. It was approved on August
24, 1970.
WHEREFORE, the prayer of the petition is hereby denied and paragraph 1 of Sec. 8(a)
of R.A. No. 6132 is not unconstitutional. Without costs.
Reyes, J.B.L., Actg. C.J., Dizon, Makalintal and Castro, JJ., concur.
Zaldivar, J., reserves his vote.
Concepcion, C.J., is on leave.
G.R. No. L-46228 January 17, 1978 We hold that the case was properly filed with the city court which has original
jurisdiction over it. The estafa imputed to Caesar Puerto is punishable under article
THE PEOPLE OF THE PHILIPPINES, petitioner, 315 of the Revised Penal Code by arresto mayor maximum to prision
vs. correccional minimum or four months and one day to two years and four months.
HON. ROLANDO R. VILLARAZA (as City Judge of Cagayan de Oro City), and CAESAR
PUERTO, respondents. The penalty of prision mayor medium, or eight years and one day to ten years,
imposed by Presidential Decree No. 818, applies only to swindling by means of issuing
Francisco P. Rabanes, Edgardo Y. Raagas, Casiano A. Gamotin, Jr., Office of the City bouncing checks which was committed or after October 22, 1975.
Fiscal of Cagayan de Oro City for petitioner.
That increased penalty does not apply to the estafa committed by Puerto on October
Eric Menchavez for respondent Caesar Puerto. 16, 1974. To apply it to Puerto would make the decree an ex post facto law. Its
retroactive application is prohibited by articles 21 and 22 of the Revised Penal Code
and section 12, Article IV of the Constitution.

AQUINO, J.: The city court has original jurisdiction over the case because the penultimate
paragraph or section 87 of the Judiciary Law, as amended by Republic Acts Nos. 2613
and 3828, provides that "judges of city courts shall have like jurisdiction as the Court
This case is about the jurisdiction of a city court in estafa cases.
of First Instance to try parties charged with an offense committed within their
respective jurisdictions, in which the penalty provided by law does not exceed prision
On December 3, 1975 an assistant city fiscal charged Caesar Puerto with estafa in the
correccional or imprisonment for not more than six years or fine not exceeding six
city court of Cagayan de Oro City for having issued on October 16, 1974 two bouncing
thousand pesos or both."
checks for the total sum of P4, 966. 63 (Criminal Case No. 32140).
As section 87 itself shows, that jurisdiction is concurrent with the court of First
City Judge Rolando R. Villaraza in his order March 31, 1976 noted that the accused
Instance which is empowered to try "all criminal cases in which the penalty provided
had waived the second stage of the preliminary investigation. He directed that the
by law is imprisonment for more than six months, or a fine of more than two hundred
case be elevated, for trial, to the court of First Instance or the Circuit Criminal Court.
pesos" (Sec. 44[f], Judiciary Law. See People vs. Nazareno, L-40037, April 30, 1976, 70
SCRA 531).
Upon petition of the prosecution, the Court of first Instance of Misamis Oriental,
Cagayan de Oro Branch VIII, in its order of February 3, 1977 returned the case to the
It was not necessary for the city court to have conducted the preliminary
city court because in its opinion the case falls within the concurrent jurisdiction of
investigation of the case. The filing of the information by the fiscal presupposes that
the two courts and, the city court, as the first court which took cognizance of the he had conducted the requisite preliminary investigation pursuant to Rule 112 of the
case, should try it.
Rules of Court and Republic Act No. 5180, as amended by Presidential Decree No. 77.

Disagreeing with the Court of First Instance, respondent city judge in his order of April
WHEREFORE, the order of the Court of First Instance, returning the case to the city
21, 1977 directed the re-elevation of the case. His view is that the case falls within
court, is affirmed and the two orders of the respondent city judge, elevating the case
the exclusive original jurisdiction of the Court of First Instance because estafa
to the Court of First Instance, are set aside. The city court is directed to try the case.
committed by the accused is punishable by prision mayor medium under Presidential
No costs. SO ORDERED.
Decree No. 818 which took effect on October 22, 1975 and which amended article
315 of the Revised Penal Code.
Fernando (Chairman), Barredo, Antonio and Concepcion Jr., JJ., concur.
That order of respondent judge is assailed in the petition for certiorari filed in this
Santos, J., is on leave.
Court on May 27, 1977 by the office of the city fiscal of Cagayan de Oro City.
G.R. No. L-18208 February 14, 1922
THE UNITED STATES, plaintiff-appellee,
vs.
VICENTE DIAZ CONDE and APOLINARIA R. DE CONDE, defendants-appellants.
Araneta & Zaragoza for appellants.
Attorney-General Villareal for appellee.
JOHNSON, J.:
It appears from the record that on the 6th day of May, 1921, a complaint was
presented in the Court of First Instance of the city of Manila, charging the defendants
with a violation of the Usury Law (Act No. 2655). Upon said complaint they were each
arrested, arraigned, and pleaded not guilty. The cause was finally brought on for trial
on the 1st day of September, 1921. At the close of the trial, and after a consideration
of the evidence adduced, the Honorable M. V. del Rosario, judge, found that the
defendants were guilty of the crime charged in the complaint and sentenced each of
them to pay a fine of P120 and, in case of insolvency, to suffer subsidiary
imprisonment in accordance with the provisions of the law. From that sentence each
of the defendants appealed to this court.
The appellants now contend: (a) That the contract upon which the alleged usurious
interest was collected was executed before Act No. 2655 was adopted; (b) that at the
time said contract was made (December 30, 1915), there was no usury law in force
in the Philippine Islands; (c) that said Act No. 2655 did not become effective until the
1st day of May, 1916, or four months and a half after the contract in question was
executed; (d) that said law could have no retroactive effect or operation, and (e) that
said law impairs the obligation of a contract, and that for all of said reasons the
judgment imposed by the lower court should be revoked; that the complaint should
be dismissed, and that they should each be discharged from the custody of the law.
The essential facts constituting the basis of the criminal action are not in dispute, and
may be stated as follows: (1) That on the 30th day of December, 1915, the alleged
offended persons Bartolome Oliveros and Engracia Lianco executed and delivered to
the defendants a contract (Exhibit B) evidencing the fact that the former had
borrowed from the latter the sum of P300, and (2) that, by virtue of the terms of said
contract, the said Bartolome Oliveros and Engracia Lianco obligated themselves to
pay to the defendants interest at the rate of five per cent (5%) per month, payable
within the first ten days of each and every month, the first payment to be made on
the 10th day of January, 1916. There were other terms in the contract which,
however, are not important for the decision in the present case.
The lower court, in the course of its opinion, stated that at the time of the execution
and delivery of said contract (Exhibit B), there was no law in force in the Philippine
Islands punishing usury; but, inasmuch as the defendants had collected a usurious
rate of interest after the adoption of the Usury Law in the Philippine Islands (Act No.
2655), they were guilty of a violation of that law and should be punished in
accordance with its provisions.
The law, we think, is well established that when a contract contains an obligation to
pay interest upon the principal, the interest thereby becomes part of the principal
and is included within the promise to pay. In other words, the obligation to pay
interest on money due under a contract, be it express or implied, is a part of the
obligation of the contract. Laws adopted after the execution of a contract, changing
or altering the rate of interest, cannot be made to apply to such contract without
violating the provisions of the constitution which prohibit the adoption of a law
"impairing the obligation of contract." (8 Cyc., 996; 12 Corpus Juris, 1058-1059.)
The obligation of the contract is the law which binds the parties to perform their
agreement if it is not contrary to the law of the land, morals or public order. That law
must govern and control the contract in every aspect in which it is intended to bear
upon it, whether it affect its validity, construction, or discharge. Any law which
enlarges, abridges, or in any manner changes the intention of the parties, necessarily
impairs the contract itself. If a law impairs the obligation of a contract, it is prohibited
by the Jones Law, and is null and void. The laws in force in the Philippine Islands prior
to any legislation by the American sovereignty, prohibited the Legislature from giving
to any penal law a retroactive effect unless such law was favorable to the person
accused. (Articles 21 and 22, Penal Code.)
A law imposing a new penalty, or a new liability or disability, or giving a new right of
action, must not be construed as having a retroactive effect. It is an elementary rule
of contract that the laws in force at the time the contract was made must govern its
interpretation and application. Laws must be construed prospectively and not
retrospectively. If a contract is legal at its inception, it cannot be rendered illegal by
any subsequent legislation. If that were permitted then the obligations of a contract
might be impaired, which is prohibited by the organic law of the Philippine Islands.
(U.S. vs. Constantino Tan Quingco Chua, 39 Phil., 552; Aguilar vs. Rubiato and
Gonzales Vila, 40 Phil., 570.)
Ex post facto laws, unless they are favorable to the defendant, are prohibited in this
jurisdiction. Every law that makes an action, done before the passage of the law, and
which was innocent when done, criminal, and punishes such action, is an ex post
facto law. In the present case Act No. 2655 made an act which had been done before
the law was adopted, a criminal act, and to make said Act applicable to the act
complained of would be to give it an ex post facto operation. The Legislature is
prohibited from adopting a law which will make an act done before its adoption a
crime. A law may be given a retroactive effect in civil action, providing it is curative in
character, but ex post facto laws are absolutely prohibited unless its retroactive
effect is favorable to the defendant.

For the reason, therefore, that the acts complained of in the present case were legal
at the time of their occurrence, they cannot be made criminal by any subsequent or
ex post facto legislation. What the courts may say, considering the provisions of
article 1255 of the Civil Code, when a civil action is brought upon said contract, cannot
now be determined. A contract may be annulled by the courts when it is shown that
it is against morals or public order.

For all of the foregoing reasons, we are of the opinion, and so decide, that the acts
complained of by the defendants did not constitute a crime at the time they were
committed, and therefore the sentence of the lower court should be, and is hereby,
revoked; and it is hereby ordered and decreed that the complaint be dismissed, and
that the defendants be discharged from the custody of the law, with costs de oficio.
So ordered.

Araullo, C.J., Street, Malcolm, Avanceña, Ostrand, Johns and Romualdez, JJ., concur.
G.R. Nos. L-32613-14 December 27, 1972
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. SIMEON. FERRER (in his capacity as Judge of the Court of First Instance of
Tarlac, Branch I), FELICIANO CO alias LEONCIO CO alias "Bob," and NILO S. TAYAG
alias Romy Reyes alias "Taba," respondents.
Solicitor R. Mutuc for respondent Feliciano Co.
Jose W. Diokno for respondent Nilo Tayag.
CASTRO, J.:p
I. Statement of the Case
Posed in issue in these two cases is the constitutionality of the Anti-Subversion
Act,1 which outlaws the Communist Party of the Philippines and other "subversive
associations," and punishes any person who "knowingly, willfully and by overt acts
affiliates himself with, becomes or remains a member" of the Party or of any other
similar "subversive" organization.
On March 5, 1970 a criminal complaint for violation of section 4 of the Anti-
Subversion Act was filed against the respondent Feliciano Co in the Court of First
Instance of Tarlac. On March 10 Judge Jose C. de Guzman conducted a preliminary
investigation and, finding a prima facie case against Co, directed the Government
prosecutors to file the corresponding information. The twice-amended information,
docketed as Criminal Case No. 27, recites:
That on or about May 1969 to December 5, 1969, in the
Municipality of Capas, Province of Tarlac, Philippines, and within
the jurisdiction of this Honorable Court, the abovenamed accused,
feloniously became an officer and/or ranking leader of the
Communist Party of the Philippines, an outlawed and illegal
organization aimed to overthrow the Government of the
Philippines by means of force, violence, deceit, subversion, or any
other illegal means for the purpose of establishing in the
Philippines a totalitarian regime and placing the government under
the control and domination of an alien power, by being an
instructor in the Mao Tse Tung University, the training school of
recruits of the New People's Army, the military arm of the said
Communist Party of the Philippines.
That in the commission of the above offense, the following
aggravating circumstances are present, to wit:
(a) That the crime has been committed in contempt of or with insult
to public authorities;
(b) That the crime was committed by a band; and afford impunity.
(c) With the aid of armed men or persons who insure or afford
impunity.
Co moved to quash on the ground that the Anti-Subversion Act is a bill of attainder.
Meanwhile, on May 25, 1970, another criminal complaint was filed with the same
court, sharing the respondent Nilo Tayag and five others with subversion. After
preliminary investigation was had, an information was filed, which, as amended,
reads:
The undersigned provincial Fiscal of Tarlac and State Prosecutors
duly designated by the Secretary of Justice to collaborate with the
Provincial Fiscal of Tarlac, pursuant to the Order dated June 5,
above entitled case, hereby accuse Nilo S. Tayag, alias Romy Reyes
alias TABA, ARTHUR GARCIA, RENATO (REY) CASIPE, ABELARDO
GARCIA, MANUEL ALAVADO, BENJAMIN BIE alias COMMANDER
MELODY and several JOHN DOES, whose identities are still
unknown, for violation of REPUBLIC ACT No. 1700, otherwise
known as the Anti-Subversion Law, committed as follows:
That in or about March 1969 and for sometime prior thereto and
thereafter, in the Province of Tarlac, within the jurisdiction of this
Honorable Court, and elsewhere in the Philippines, the above-
named accused knowingly, willfully and by overt acts organized,
joined and/or remained as offices and/or ranking leaders, of the
KABATAANG MAKABAYAN, a subversive organization as defined in
Republic Act No. 1700; that BENJAMIN BIE and COMMANDER
MELODY, in addition thereto, knowingly, willfully and by over acts
joined and/or remained as a member and became an officer and/or
ranking leader not only of the Communist Party of the Philippines
but also of the New People's Army, the military arm of the
Communist Party of the Philippines; and that all the above-named
 accused, as such officers and/or ranking leaders of the aforestated
subversive organizations, conspiring, confederating and mutually
helping one another, did then and there knowingly, willfully and
feloniously commit subversive and/or seditious acts, by inciting,
instigating and stirring the people to unite and rise publicly and
tumultuously and take up arms against the government, and/or
engage in rebellious conspiracies and riots to overthrow the
government of the Republic of the Philippines by force, violence,
deceit, subversion and/or other illegal means among which are the
following:
1. On several occasions within the province of Tarlac, the accused
conducted meetings and/or seminars wherein the said accused
delivered speeches instigating and inciting the people to unite, rise
in arms and overthrow the Government of the Republic of the
Philippines, by force, violence, deceit, subversion and/or other
illegal means; and toward this end, the said accused organized,
among others a chapter of the KABATAANG MAKABAYAN in barrio
Motrico, La Paz, Tarlac for the avowed purpose of undertaking or
promoting an armed revolution, subversive and/or seditious
propaganda, conspiracies, and/or riots and/or other illegal means
to discredit and overthrow the Government of the Republic of the
Philippines and to established in the Philippines a Communist
regime.
2. The accused NILO TAYAG alias ROMY REYES alias TABA, together
with FRANCISCO PORTEM alias KIKO Gonzales and others, pursued
the above subversive and/or seditious activities in San Pablo City
by recruiting members for the New People's Army, and/or by
instigating and inciting the people to organize and unite for the
purpose of overthrowing the Government of the Republic of the
Philippines through armed revolution, deceit, subversion and/or
other illegal means, and establishing in the Philippines a
Communist Government.
That the following aggravating circumstances attended the
commission of the offense: (a) aid of armed men or persons to
insure or afford impunity; and (b) craft, fraud, or disguise was
employed.
On July 21, 1970 Tayag moved to quash, impugning the validity of the statute on the
grounds that (1) it is a bill of attainder; (2) it is vague; (3) it embraces more than one
subject not expressed in the title thereof; and (4) it denied him the equal protection
of the laws.
Resolving the constitutional issues raised, the trial court, in its resolution of
September 15, 1970, declared the statute void on the grounds that it is a bill of
attainder and that it is vague and overboard, and dismissed the informations against
the two accused. The Government appealed. We resolved to treat its appeal as a
special civil action for certiorari.
II. Is the Act a Bill of Attainder?
Article III, section 1 (11) of the Constitution states that "No bill of attainder or ex port
facto law shall be enacted."2 A bill of attainder is a legislative act which inflicts
punishment without trial.3 Its essence is the substitution of a legislative for a judicial
determination of guilt.4 The constitutional ban against bills of attainder serves to
implement the principle of separation of powers 5 by confining legislatures to
rule-making 6 and thereby forestalling legislative usurpation of the judicial
function.7 History in perspective, bills of attainder were employed to suppress
unpopular causes and political minorities, 8 and it is against this evil that the
constitutional prohibition is directed. The singling out of a definite class, the
imposition of a burden on it, and a legislative intent, suffice to stigmatizea statute as
a bill of attainder. 9
In the case at bar, the Anti-Subversion Act was condemned by the court a quo as a
bill of attainder because it "tars and feathers" the Communist Party of the Philippines
as a "continuing menace to the freedom and security of the country; its existence, a
'clear, present and grave danger to the security of the Philippines.'" By means of the
Act, the trial court said, Congress usurped "the powers of the judge," and assumed
"judicial magistracy by pronouncing the guilt of the CCP without any of the forms or
safeguards of judicial trial." Finally, according to the trial court, "if the only issue [to
be determined] is whether or not the accused is a knowing and voluntary member,
the law is still a bill of attainder because it has expressly created a presumption of
organizational guilt which the accused can never hope to overthrow."
1. When the Act is viewed in its actual operation, it will be seen that it does not specify
the Communist Party of the Philippines or the members thereof for the purpose of
punishment. What it does is simply to declare the Party to be an organized conspiracy
for the overthrow of the Government for the purposes of the prohibition, stated in
section 4, against membership in the outlawed organization. The term "Communist
Party of the Philippines" issued solely for definitional purposes. In fact the Act applies
not only to the Communist Party of the Philippines but also to "any other organization
having the same purpose and their successors." Its focus is not on individuals but on
conduct. 10
This feature of the Act distinguishes it from section 504 of the U.S. Federal Labor-
Management Reporting and Disclosure Act of 1959 11 which, in U.S. vs. Brown, 12 was
held to be a bill of attainder and therefore unconstitutional. Section 504 provided in
its pertinent parts as follows:
(a) No person who is or has been a member of the Communist
Party ... shall serve —
(1) as an officer, director, trustee, member of any executive board
or similar governing body, business agent, manager, organizer, or
other employee (other than as an employee performing exclusively
clerical or custodial duties) of any labor organization.
during or for five years after the termination of his membership in
the Communist Party....
(b) Any person who willfully violates this section shall be fined not
more than $10,000 or imprisoned for not more than one year, or
both.
This statute specified the Communist Party, and imposes disability and penalties on
its members. Membership in the Party, without more, ipso facto disqualifies a person
from becoming an officer or a member of the governing body of any labor
organization. As the Supreme Court of the United States pointed out:
Under the line of cases just outlined, sec. 504 of the Labor
Management Reporting and Disclosure Act plainly constitutes a bill
of attainder. Congress undoubtedly possesses power under the
Commerce Clause to enact legislation designed to keep from
positions affecting interstate commerce persons who may use of
such positions to bring about political strikes. In section 504,
however, Congress has exceeded the authority granted it by the
Constitution. The statute does not set forth a generally applicable
rule decreeing that any person who commits certain acts or
possesses certain characteristics (acts and characteristics which, in
Congress' view, make them likely to initiate political strikes) shall
not hold union office, and leaves to courts and juries the job of
deciding what persons have committed the specified acts or
possessed the specified characteristics. Instead, it designates in no
uncertain terms the persons who possess the feared
characteristics and therefore cannot hold union office without
incurring criminal liability — members of the Communist Party.
Communist Party v. Subversive Activities Control Board, 367 US 1,
6 L ed 2d 625, 81 S CT 1357, lend a support to our conclusion. That
case involved an appeal from an order by the Control Board
ordering the Communist Party to register as a "Communist-action
organization," under the Subversive Activities Control Act of 1950,
64 Stat 987, 50 USC sec. 781 et seq. (1958 ed). The definition of
"Communist-action organization" which the Board is to apply is set
forth in sec. 3 of the Act:
[A]ny organization in the United States ... which (i)is substantially
directed, dominated, or controlled by the foreign government or
foreign organization controlling the world Communist movement
referred to in section 2 of this title, and(ii) operates primarily to
advance the objectives of such world Communist movement... 64
Stat 989, 50 USC sec. 782 (1958 ed.)
A majority of the Court rejected the argument that the Act was a
bill of attainder, reasoning that sec. 3 does not specify the persons
or groups upon which the deprivations setforth in the Act are to be
imposed, but instead sets forth a general definition. Although the
Board has determined in 1953 that the Communist Party was a
"Communist-action organization," the Court found the statutory
definition not to be so narrow as to insure that the Party would
always come within it:
In this proceeding the Board had found, and the Court of Appeals
has sustained its conclusion, that the Communist Party, by virtud of
the activities in which it now engages, comes within the terms of
the Act. If the Party should at anytime choose to abandon these
activities, after it is once registered pursuant to sec. 7, the Act
provides adequate means of relief. (367 US, at 87, 6 L ed 2d at 683)
Indeed, were the Anti-Subversion Act a bill of attainder, it would be totally
unnecessary to charge Communists in court, as the law alone, without more, would
suffice to secure their punishment. But the undeniable fact is that their guilt still has
to be judicially established. The Government has yet to prove at the trial that the
accused joined the Party knowingly, willfully and by overt acts, and that they joined
the Party, knowing its subversive character and with specific intent to further its basic
objective, i.e., to overthrow the existing Government by force deceit, and other illegal
means and place the country under the control and domination of a foreign power.
As to the claim that under the statute organizationl guilt is nonetheless imputed
despite the requirement of proof of knowing membership in the Party, suffice it to
say that is precisely the nature of conspiracy, which has been referred to as a
"dragneet device" whereby all who participate in the criminal covenant are liable.
The contention would be correct if the statute were construed as punishing mere
membership devoid of any specific intent to further the unlawful goals of the
Party. 13 But the statute specifically required that membership must be knowing or
active, with specific intent to further the illegal objectives of the Party. That is what
section 4 means when it requires that membership, to be unlawful, must be shown
to have been acquired "knowingly, willfully and by overt acts." 14 The ingredient of
specific intent to pursue the unlawful goals of the Party must be shown by "overt
acts." 15 This constitutes an element of "membership" distinct from the ingredient of
guilty knowledge. The former requires proof of direct participation in the
organization's unlawful activities, while the latter requires proof of mere adherence
to the organization's illegal objectives.
2. Even assuming, however, that the Act specifies individuals and not activities, this
feature is not enough to render it a bill of attainder. A statute prohibiting partners or
employees of securities underwriting firms from serving as officers or employees of
national banks on the basis of a legislative finding that the persons mentioned would
be subject to the temptation to commit acts deemed inimical to the national
economy, has been declared not to be a bill of attainder. 16 Similarly, a statute
requiring every secret, oath-bound society having a membership of at least twenty
to register, and punishing any person who becomes a member of such society which
fails to register or remains a member thereof, was declared valid even if in its
operation it was shown to apply only to the members of the Ku Klux Klan. 17
In the Philippines the validity of section 23 (b) of the Industrial Peace Act, 18 requiring
labor unions to file with the Department of Labor affidavits of union officers "to the
effect that they are not members of the Communist Party and that they are not
members of any organization which teaches the overthrow of the Government by
force or by any illegal or unconstitutional method," was upheld by this Court. 19
Indeed, it is only when a statute applies either to named individuals or to easily
ascertainable members of a group in such a way as to inflict punishment on them
without a judicial trial does it become a bill of attainder. 20 It is upon this ground that
statutes which disqualified those who had taken part in the rebellion against the
Government of the United States during the Civil War from holding office, 21 or from
exercising their profession, 22 or which prohibited the payment of further
compensation to individuals named in the Act on the basis of a finding that they had
engages in subversive activities, 23 or which made it a crime for a member of the
Communist Party to serve as an officer or employee of a labor union, 24 have been
invalidated as bills of attainder.
But when the judgment expressed in legislation is so universally acknowledged to be
certain as to be "judicially noticeable," the legislature may apply its own rules, and
judicial hearing is not needed fairly to make such determination. 25
In New York ex rel. Bryant vs. Zimmerman, 26 the New York legislature passed a law
requiring every secret, oath-bound society with a membership of at least twenty to
register, and punishing any person who joined or remained a member of such a
society failing to register. While the statute did not specify the Ku Klux Klan, in its
operation the law applied to the KKK exclusively. In sustaining the statute against the
claim that it discriminated against the Ku Klux Klan while exempting other secret,
oath-bound organizations like masonic societies and the Knights of Columbus, the
United States Supreme Court relied on common knowledge of the nature and
activities of the Ku Klux Klan. The Court said:
The courts below recognized the principle shown in the cases just
cited and reached the conclusion that the classification was
justified by a difference between the two classes of associations
shown by experience, and that the difference consisted (a) in a
manifest tendency on the part of one class to make the secrecy
surrounding its purpose and membership a cloak for acts and
conduct inimical to personal rights and public welfare, and (b) in
the absence of such a tendency on the part of the other class. In
pointing out this difference one of the courts said of the Ku Klux
Klan, the principal association in the included class: "It is a matter
of common knowledge that this organization functions largely at
night, its members disguised by hoods and gowns and doing things
calculated to strike terror into the minds of the people;" and later
said of the other class: "These organizations and their purposes are
well known, many of them having been in existence for many years.
Many of them are oath-bound and secret. But we hear no
complaint against them regarding violation of the peace or
interfering with the rights of others." Another of the courts said: "It
is a matter of common knowledge that the association or
organization of which the relator is concededly a member exercises
activities tending to the prejudice and intimidation of sundry
classes of our citizens. But the legislation is not confined to this
society;" and later said of the other class: "Labor unions have a
recognized lawful purpose. The benevolent orders mentioned in
the Benevolent Orders Law have already received legislative
scrutiny and have been granted special privileges so that the
legislature may well consider them beneficial rather than harmful
agencies." The third court, after recognizing "the potentialities of
evil in secret societies," and observing that "the danger of certain
 organizations has been judicially demonstrated," — meaning in
that state, — said: "Benevolent orders, labor unions and college
fraternities have existed for many years, and, while not immune
from hostile criticism, have on the whole justified their existence."
We assume that the legislature had before it such information as
was readily available including the published report of a hearing,
before a committee of the House of Representatives of the 57th
Congress relating to the formation, purposes and activities of the
Klu Klux Klan. If so it was advised — putting aside controverted
evidence — that the order was a revival of the Ku Klux Klan of an
earlier time with additional features borrowed from the Know
Nothing and the A. P. A. orders of other periods; that its
memberships was limited to native-born, gentile, protestant
whites; that in part of its constitution and printed creed it
proclaimed the widest freedom for all and full adherence to the
Constitution of the United States; in another exacted of its member
an oath to shield and preserve "white supremacy;" and in still
another declared any person actively opposing its principles to be
"a dangerous ingredient in the body politic of our country and an
enemy to the weal of our national commonwealth;" that it was
conducting a crusade against Catholics, Jews, and Negroes, and
stimulating hurtful religious and race prejudices; that it was striving
for political power and assuming a sort of guardianship over the
administration of local, state and national affairs; and that at times
it was taking into its own hands the punishment of what some of
its members conceived to be crimes. 27
In the Philippines the character of the Communist Party has been the object of
continuing scrutiny by this Court. In 1932 we found the Communist Party of the
Philippines to be an illegal association. 28 In 1969 we again found that the objective
of the Party was the "overthrow of the Philippine Government by armed struggle and
to establish in the Philippines a communist form of government similar to that of
Soviet Russia and Red China." 29 More recently, in Lansang vs. Garcia, 30 we noted the
growth of the Communist Party of the Philippines and the organization of Communist
fronts among youth organizations such as the Kabataang Makabayan (KM) and the
emergence of the New People's Army. After meticulously reviewing the evidence, we
said: "We entertain, therefore, no doubts about the existence of a sizeable group of
men who have publicly risen in arms to overthrow the government and have thus
been and still are engaged in rebellion against the Government of the Philippines.
3. Nor is it enough that the statute specify persons or groups in order that it may fall
within the ambit of the prohibition against bills of attainder. It is also necessary that
it must apply retroactively and reach past conduct. This requirement follows from
the nature of a bill of attainder as a legislative adjudication of guilt. As Justice
Frankfurter observed, "frequently a bill of attainder was ... doubly objectionable
because of its ex post facto features. This is the historic explanation for uniting the
two mischiefs in one
clause — 'No Bill of Attainder or ex post facto law shall be passed.' ... Therefore, if [a
statute] is a bill of attainder it is also an ex post facto law. But if it is not an ex post
facto law, the reasons that establish that it is not are persuasive that it cannot be a
bill of attainder." 31
Thus in Gardner vs. Board of Public Works, 32 the U.S. Supreme Court upheld the
validity of the Charter of the City of Los Angeles which provided:
... [N]o person shall hold or retain or be eligible for any public office
or employment in the service of the City of Los Angeles, in any
office or department thereof, either elective or appointive, who
has within five (5) years prior to the effective date of this section
advised, advocated, or taught, or who may, after this section
becomes effective, become a member of or affiliated with any
group, society, association, organization or party which advises,
advocates or teaches or has within said period of five (5) years
advised, advocated, or taught the overthrow by force or violence
of the Government of the United States of America or of the State
of California.
In upholding the statute, the Court stressed the prospective application of the Act to
the petitioner therein, thus:
... Immaterial here is any opinion we might have as to the charter
provision insofar as it purported to apply restrospectively for a five-
year period to its effective date. We assume that under the Federal
Constitution the Charter Amendment is valid to the extent that it
bars from the city's public service persons who, subsequently to its
adoption in 1941, advise, advocate, or reach the violent overthrow
of the Government or who are or become affiliated with any group
doing so. The provisions operating thus prospectively were a
reasonable regulation to protect the municipal service by
establishing an employment qualification of loyalty to the State and
the United States.
... Unlike the provisions of the charter and ordinance under which
petitioners were removed, the statute in the Lovett case did not
declare general and prospectively operative standards of
 qualification and eligibility for public employment. Rather, by its
terms it prohibited any further payment of compensationto named
individuals or employees. Under these circumstances, viewed
against the legislative background, the statutewas held to have
imposed penalties without judicial trial.
Indeed, if one objection to the bill of attainder is thatCongress thereby assumed
judicial magistracy, them it mustbe demonstrated that the statute claimed to be a
bill of attainderreaches past conduct and that the penalties it imposesare
inescapable. As the U.S. Supreme Court observedwith respect to the U.S. Federal
Subversive Activities ControlAct of 1950:
Nor is the statute made an act of "outlawry" or of attainderby the
fact that the conduct which it regulates is describedwith such
particularity that, in probability, few organizationswill come within
the statutory terms. Legislatures may act tocurb behaviour which
they regard as harmful to the public welfare,whether that conduct
is found to be engaged in by manypersons or by one. So long as the
incidence of legislation issuch that the persons who engage in the
regulated conduct, bethey many or few, can escape regulation
merely by altering thecourse of their own present activities, there
can be no complaintof an attainder. 33
This statement, mutatis mutandis, may be said of theAnti-Subversion Act. Section 4
thereof expressly statesthat the prohibition therein applies only to acts
committed"After the approval of this Act." Only those who "knowingly,willfully and
by overt acts affiliate themselves with,become or remain members of the Communist
Party of thePhilippines and/or its successors or of any subversive association"after
June 20, 1957, are punished. Those whowere members of the Party or of any other
subversive associationat the time of the enactment of the law, weregiven the
opportunity of purging themselves of liability byrenouncing in writing and under oath
their membershipin the Party. The law expressly provides that such renunciationshall
operate to exempt such persons from penalliability. 34 The penalties prescribed by
the Act are thereforenot inescapable.
III. The Act and the Requirements of Due Process
1. As already stated, the legislative declaration in section 2 of the Act that the
Communist Party of the Philippinesis an organized conspiracy for the overthrow of
theGovernment is inteded not to provide the basis for a legislativefinding of guilt of
the members of the Party butrather to justify the proscription spelled out in section
4. Freedom of expression and freedom of association are sofundamental that they
are thought by some to occupy a"preferred position" in the hierarchy of
constitutional values. 35 Accordingly, any limitation on their exercise mustbe justified
by the existence of a substantive evil. This isthe reason why before enacting the
statute in question Congressconducted careful investigations and then stated
itsfindings in the preamble, thus:
... [T]he Communist Party of the Philippines althoughpurportedly a
political party, is in fact an organized conspiracyto overthrow the
Government of the Republic of the Philippinesnot only by force and
violence but also by deceit, subversionand other illegal means, for
the purpose of establishing in thePhilippines a totalitarian regime
subject to alien dominationand control;
... [T]he continued existence and activities of the CommunistParty
of the Philippines constitutes a clear, present andgrave danger to
the security of the Philippines;
... [I]n the face of the organized, systematice and
persistentsubversion, national in scope but international in
direction,posed by the Communist Party of the Philippines and its
activities,there is urgent need for special legislation to cope
withthis continuing menace to the freedom and security of the
country.
In truth, the constitutionality of the Act would be opento question if, instead of
making these findings in enactingthe statute, Congress omitted to do so.
In saying that by means of the Act Congress has assumed judicial magistracy, the trial
courd failed to takeproper account of the distinction between legislative
fact and adjudicative fact. Professor Paul Freund elucidatesthe crucial distinction,
thus:
... A law forbidding the sale of beverages containingmore than 3.2
per cent of alcohol would raise a question of legislativefact, i.e.,
whether this standard has a reasonable relationto public health,
morals, and the enforcement problem. Alaw forbidding the sale of
intoxicating beverages (assuming itis not so vague as to require
supplementation by rule-making)would raise a question of
adjudicative fact, i.e., whether thisor that beverage is intoxicating
within the meaning of the statuteand the limits on governmental
action imposed by the Constitution. Of course what we mean by
fact in each case is itselfan ultimate conclusion founded on
underlying facts and oncriteria of judgment for weighing them.
 A conventional formulation is that legislative facts — those facts
which are relevant to the legislative judgment — will not be
canvassed save to determine whether there is a rationalbasis for
believing that they exist, while adjudicativefacts — those which tie
the legislative enactment to the litigant — are to be demonstrated
and found according to the ordinarystandards prevailing for judicial
trials. 36
The test formulated in Nebbia vs. new York, 37 andadopted by this Court in Lansang
vs. Garcia, 38 is that 'if laws are seen to have a reasonable relation to a
proper legislative purpose, and are neither arbitrary nor discriminatory, the
requirements of due process are satisfied, and judicial determination to that effect
renders a court functus officio." The recital of legislative findings implements this
test.
With respect to a similar statement of legislative findingsin the U.S. Federal
Subversive Activities Control Actof 1950 (that "Communist-action organizations" are
controlledby the foreign government controlling the worldCommunist movement
and that they operate primarily to"advance the objectives of such world Communist
movement"),the U.S. Supreme Court said:
It is not for the courts to reexamine the validity of theselegislative
findings and reject them....They are the productof extensive
investigation by Committes of Congress over morethan a decade
and a half. Cf. Nebbia v. New York, 291 U.S.502, 516, 530. We
certainly cannot dismiss them as unfoundedirrational imaginings.
... And if we accept them, as we mustas a not unentertainable
appraisal by Congress of the threatwhich Communist organizations
pose not only to existing governmentin the United States, but to
the United States as asovereign, independent Nation. ...we must
recognize that thepower of Congress to regulate Communist
organizations of thisnature is
extensive. 39
This statement, mutatis mutandis, may be said of thelegislative findings articulated
in the Anti-Subversion Act.
That the Government has a right to protect itself againstsubversion is a proposition
too plain to require elaboration.Self-preservation is the "ultimate value" of society.
It surpasses and transcendes every other value, "forif a society cannot protect its very
structure from armedinternal attack, ...no subordinate value can be protected" 40 As
Chief Justice Vinson so aptly said in Dennis vs. United States: 41
Whatever theoretical merit there may be to the argumentthat
there is a 'right' to rebellion against dictatorial governmentsis
without force where the existing structure of government provides
for peaceful and orderly change. We rejectany principle of
governmental helplessness in the face of preparationfor
revolution, which principle, carried to its logical conclusion,must
lead to anarchy. No one could conceive that it isnot within the
power of Congress to prohibit acts intended tooverthrow the
government by force and violence.
2. By carefully delimiting the reach of the Act to conduct (as explicitly described in
sectin 4 thereof), Congressreaffirmed its respect for the rule that "even throughthe
governmental purpose be legitimate and substantial,that purpose cannot be pursued
by means that broadly stiflefundamental personal liberties when the end can be
more narrowly achieved." 42 The requirement of knowing membership,as
distinguished from nominal membership, hasbeen held as a sufficient basis for
penalizing membershipin a subversive organization. 43 For, as has been stated:
Membership in an organization renders aid and encouragement to
the organization; and when membership is acceptedor retained
with knowledge that the organization is engaged inan unlawful
purpose, the one accepting or retaining membershipwith such
knowledge makes himself a party to the unlawfulenterprise in
which it is engaged. 44
3. The argument that the Act is unconstitutionallyoverbroad because section 2
merely speaks of "overthrow"of the Government and overthrow may be achieved
by peaceful means, misconceives the function of the phrase"knowingly, willfully and
by overt acts" in section 4. Section 2 is merely a legislative declaration; the
definitionsof and the penalties prescribed for the different acts prescribedare stated
in section 4 which requires that membershipin the Communist Party of the
Philippines, to be unlawful, must be acquired "knowingly, willfully and by overt acts."
Indeed, the first "whereas" clause makes clear thatthe overthrow contemplated is
"overthrow not only by forceand violence but also be deceit, subversion and other
illegalmeans." The absence of this qualificatio in section 2 appearsto be due more to
an oversight rather than to deliberateomission.
Moreover, the word "overthrow' sufficiently connotesthe use of violent and other
illegal means. Only in a metaphoricalsense may one speak of peaceful overthrow
ofgovernments, and certainly the law does not speak in metaphors.In the case of the
Anti-Subversion Act, the use ofthe word "overthrow" in a metaphorical sense is
hardlyconsistent with the clearly delineated objective of the "overthrow,"namely,
"establishing in the Philippines a totalitarianregime and place [sic] the Government
under thecontrol and domination of an alien power." What thisCourt once said in a
prosecution for sedition is appropos: "The language used by the appellant clearly
imported anoverthrow of the Government by violence, and it should beinterpreted
in the plain and obvious sense in which it wasevidently intended to be understood.
The word 'overthrow'could not have been intended as referring to an ordinarychange
by the exercise of the elective franchise. The useof the whip [which the accused
exhorted his audience to useagainst the Constabulary], an instrument designed
toleave marks on the sides of adversaries, is inconsistentwith the mild interpretation
which the appellant wouldhave us impute to the language." 45
IV. The Act and the Guaranty of Free Expression
As already pointed out, the Act is aimed against conspiracies to overthrow the
Government by force, violence orother illegal means. Whatever interest in freedom
of speechand freedom of association is infringed by the prohibitionagainst knowing
membership in the Communist Party ofthe Philippines, is so indirect and so
insubstantial as to beclearly and heavily outweighed by the overriding
considerationsof national security and the preservartion of democraticinstitutions in
his country.
The membership clause of the U.S. Federal Smith Actis similar in many respects to
the membership provision ofthe Anti-Subversion Act. The former provides:
Whoever organizes or helps or attempts to organize anysociety,
group, or assembly of persons who teach, advocate, orencourage
the overthrow or destruction of any such governmentby force or
violence; or becomes or is a member of, or affiliatedwith, any such
society, group or assembly of persons, knowingthe purpose thereof
— the government of any of its political subdivisionsby force,
Shall be fined not more than $20,000 or imprisoned notmore than
twenty years, or both, and shall be ineligible for emplymentby the
United States or any department or agencythereof, for the five
years next following his conviction.... 46
In sustaining the validity of this provision, the "Court said in Scales vs. United
States: 47
It was settled in Dennis that advocacy with which we arehere
concerned is not constitutionally protected speech, and itwas
further established that a combination to promote suchadvocacy,
albeit under the aegis of what purports to be a politicalparty, is not
such association as is protected by the firstAmendment. We can
discern no reason why membership, whenit constitutes a
purposeful form of complicity in a group engagingin this same
forbidden advocacy, should receive anygreater degree of
protection from the guarantees of that Amendment.
Moreover, as was held in another case, where the problemsof accommodating the
exigencies of self-preservationand the values of liberty are as complex and intricate
as inthe situation described in the legislative findings stated inthe U.S. Federal
Subversive Activities Control Act of 1950,the legislative judgment as to how that
threat may best bemet consistently with the safeguards of personal freedomsis not
to be set aside merely because the judgment of judgeswould, in the first instance,
have chosen other methods. 48 For in truth, legislation, "whether it restrains freedom
tohire or freedom to speak, is itself an effort at compromisebetween the claims of
the social order and individual freedom,and when the legislative compromise in
either case isbrought to the judicial test the court stands one step removedfrom the
conflict and its resolution through law." 49
V. The Act and its Title
The respondent Tayag invokes the constitutional commandthat "no bill which may
be enacted into law shall embrace more than one subject which shall be expressed
in the title of the bill." 50
What is assailed as not germane to or embraced in thetitle of the Act is the last
proviso of section 4 which reads:
And provided, finally, That one who conspires with anyother person
to overthrow the Government of the Republic ofthe Philippines, or
violence, deceit, subversion or illegal means,for the purpose of
placing such Government or political subdivisionunder the control
and domination of any lien power, shallbe punished by prision
correccional to prision mayor with allthe accessory penalties
provided therefor in the same code.
It is argued that the said proviso, in reality, punishes notonly membership in the
Communist Party of the Philippinesor similar associations, but as well "any
conspiracyby two persons to overthrow the national or any local governmentby
illegal means, even if their intent is not to establisha totalitarian regime, burt a
democratic regime, evenif their purpose is not to place the nation under an
aliencommunist power, but under an alien democratic power likethe United States
or England or Malaysia or even an anti-communistpower like Spain, Japan, Thailand
or Taiwanor Indonesia."
The Act, in addition to its main title ("An Act to Outlawthe Communist Party of the ACCORDINGLY, the questioned resolution of September15, 1970 is set aside, and
Philippines and SimilarAssociations, Penalizing Membership Therein, and forOther these two cases are herebyremanded to the court a quo for trial on the merits.
Purposes"), has a short title. Section 1 providesthat "This Act shall be known as the Costs de oficio.
Anti-Subversion Act."Together with the main title, the short title of the
statuteunequivocally indicates that the subject matter is subversionin general which Makalintal, Zaldivar, Teehankee, Barredo and Esguerra, JJ., concur.
has for its fundamental purpose the substitutionof a foreign totalitarian regime in
place of theexisting Government and not merely subversion by Concepcion, C.J., concurs in the result.
Communistconspiracies..
Makasiar and Antonio, JJ., took no part.
The title of a bill need not be a catalogue or an indexof its contents, and need not
recite the details of the Act. 51 It is a valid title if it indicates in broad but clear
termsthe nature, scope, and consequences of the proposed lawand its operation. 52 A
narrow or technical construction isto be avoided, and the statute will be read fairly
and reasonablyin order not to thwart the legislative intent. We holdthat the Anti-
Subversion Act fully satisfies these requirements.

VI. Conclusion and Guidelines

In conclusion, even as we uphold the validity of theAnti-Subversion Act, we cannot

overemphasize the needfor prudence and circumspection in its enforcement,
operatingas it does in the sensitive area of freedom of expressionand belief.
Accordingly, we set the following basic guidelines to be observed in any prosecution
under the Act.The Government, in addition to proving such circumstancesas may
affect liability, must establish the following elementsof the crime of joining the
Communist Party of the Philippinesor any other subversive association:

(1) In the case of subversive organizations other thanthe Communist Party of the
Philippines, (a) that thepurpose of the organization is to overthrow the
presentGovernment of the Philippines and to establish in thiscountry a totalitarian
regime under the domination of aforeign power; (b) that the accused joined such
organization;and (c) that he did so knowingly, willfully and byovert acts; and

(2) In the case of the Communist Party of the Philippines,(a) that the CPP continues
to pursue the objectiveswhich led Congress in 1957 to declare it to be an
organizedconspiracy for the overthrow of the Government by illegalmeans for the
purpose of placing the country under thecontrol of a foreign power; (b) that the
accused joined theCPP; and (c) that he did so willfully, knowingly and byovert acts.

We refrain from making any pronouncement as to thecrime or remaining a member

of the Communist Party ofthe Philippines or of any other subversive association:
weleave this matter to future determination.
G.R. No. 448 September 20, 1901 cited. There is nothing in the language of that article to indicate that it does not apply
to all persons within the territorial jurisdiction of the law. Under articles 4 and 5 of
THE UNITED STATES, complainant-appellee, the Code of Military Justice above cited a military person could not be brought to trial
vs. before a civil tribunal for an assault upon a prisoner of war, but by the commission of
PHILIP K. SWEET, defendant-appellant. that offense he incurred a criminal responsibility for which he was amenable only to
the military jurisdiction. That criminal responsibility, however, arose from an
Theofilus B. Steele, for appellant. infraction of the general penal laws, although the same acts, viewed in another
Office of the Solicitor-General Araneta, for appellee. aspect, might also, if committed in time of war, constitute an infraction of the military
code. We are unable to see how these provisions of the Spanish Military Code, no
longer in force here and which indeed never had any application to the Army of the
LADD, J.:
United States, can in any possible view have the effect claimed for them by counsel
for the appellant.
The offense charged in the complaint is punishable under the Penal Code now in force
by arresto mayor and a fine of from 325 to 3,250 pesetas. (Art. 418.) By Act No. 136
The second question is, Does the fact that the alleged offense was committed by an
of the United States Philippine Commission, section 56 (6), Courts of First Instance
employee of the United States military authorities deprive the court of jurisdiction?
are given original jurisdiction "in all criminal cases in which a penalty of more than six
We have been cited to no provision in the legislation of Congress, and to none in the
months' imprisonment or a fine exceeding one hundred dollars may be imposed."
local legislation, which has the effect of limiting, as respects employees of the United
The offense was therefore cognizable by the court below unless the fact that the
States military establishment, the general jurisdiction conferred upon the Courts of
appellant was at the time of its alleged commission an employee of the United States
First Instance by Act No. 136 of the United States Philippine Commission above cited,
military authorities in the Philippine Islands, and the further fact that the person upon
and we are not aware of the existence of any such provision. The case is therefore
whom it is alleged to have been committed was a prisoner of war in the custody of
open to the application of the general principle that the jurisdiction of the civil
such authorities, are sufficient to deprive it of jurisdiction. We must assume that both
tribunals is unaffected by the military or other special character of the person
these facts are true, as found, either upon sufficient evidence or upon the admissions
brought before them for trial, a principle firmly established in the law of England and
of the prosecuting attorney, by the court below.
America and which must, we think, prevail under any system of jurisprudence unless
controlled by express legislation to the contrary. (United States vs. Clark, 31 Fed.
Setting aside the claim that the appellant was "acting in the line of duty" at the time
Rep., 710.) The appellant's claim that the acts alleged to constitute the offense were
the alleged offense was committed, which is not supported by the findings or by any
performed by him in the execution of the orders of his military superiors may, if true,
evidence which appears in the record, the contention that the court was without
be available by way of defense upon the merits in the trial in the court below, but can
jurisdiction, as we understand it, is reducible to two propositions: First, that an
not under this principle affect the right of that court to take jurisdiction of the case.
assault committed by a soldier or military employee upon a prisoner of war is not an
offense under the Penal Code; and second, that if it is an offense under the Code,
Whether under a similar state of facts to that which appears in this case a court of
nevertheless the military character sustained by the person charged with the offense
one of the United States would have jurisdiction to try the offender against the State
at the time of its commission exempts him from the ordinary jurisdiction of the civil
laws (see In re Fair, 100 Fed. Rep., 149), it is not necessary to consider. The present is
tribunals.
not a case where the courts of one government are attempting to exercise
jurisdiction over the military agents or employees of another and distinct
As to the first proposition, it is true, as pointed out by counsel, that an assault of the
government, because the court asserting jurisdiction here derives its existence and
character charged in the complaint committed in time of war by a military person
powers from the same Government under the authority of which the acts alleged to
upon a prisoner of war is punishable as an offense under the Spanish Code of Military
constitute the offense are claimed to have been performed.
Justice (art. 232), and it is also true that under the provisions of the same Code (arts.
4, 5) the military tribunals have, with certain exceptions which it is not material to
It may be proper to add that there is no actual conflict between the two jurisdictions
state, exclusive cognizance of all offenses, whether of a purely military nature or
in the present case nor any claim of jurisdiction on the part of the military tribunals.
otherwise, committed by military persons. But the fact that the acts charged in the
On the contrary it appears from the findings of the court below that the complaint
complaint would be punishable as an offense under the Spanish military legislation
was entered by order of the commanding general of the Division of the Philippines,
does not render them any less an offense under the article of the Penal Code above
a fact not important, perhaps, as regards the technical question of jurisdiction, but
which relieves the case from any practical embarrassment which might result from a
claim on the part of the military tribunals to exclusive cognizance of the offense.

The order of the court below is affirmed with costs to the appellant.

Arellano, C.J., Torres, Willard, and Mapa, JJ., concur.

G.R. No. 125865 January 28, 2000
JEFFREY LIANG (HUEFENG), petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
YNARES-SANTIAGO, J.:
Petitioner is an economist working with the Asian Development Bank (ADB).
Sometime in 1994, for allegedly uttering defamatory words against fellow ADB
worker Joyce Cabal, he was charged before the Metropolitan Trial Court (MeTC) of
Mandaluyong City with two counts of grave oral defamation docketed as Criminal
Cases Nos. 53170 and 53171. Petitioner was arrested by virtue of a warrant issued by
the MeTC. After fixing petitioner's bail at P2,400.00 per criminal charge, the MeTC
released him to the custody of the Security Officer of ADB. The next day, the MeTC
judge received an "office of protocol" from the Department of Foreign Affairs (DFA)
stating that petitioner is covered by immunity from legal process under Section 45 of
the Agreement between the ADB and the Philippine Government regarding the
Headquarters of the ADB (hereinafter Agreement) in the country. Based on the said
protocol communication that petitioner is immune from suit, the MeTC judge
without notice to the prosecution dismissed the two criminal cases. The latter filed a
motion for reconsideration which was opposed by the DFA. When its motion was
denied, the prosecution filed a petition for certiorari and mandamus with the
Regional Trial Court (RTC) of Pasig City which set aside the MeTC rulings and ordered
the latter court to enforce the warrant of arrest it earlier issued. After the motion for
reconsideration was denied, petitioner elevated the case to this Court viaa petition
for review arguing that he is covered by immunity under the Agreement and that no
preliminary investigation was held before the criminal cases were filed in
court.1âwphi1.nêt
The petition is not impressed with merit.
First, courts cannot blindly adhere and take on its face the communication from the
DFA that petitioner is covered by any immunity. The DFA's determination that a
certain person is covered by immunity is only preliminary which has no binding effect
in courts. In receiving ex-parte the DFA's advice and in motu propio dismissing the
two criminal cases without notice to the prosecution, the latter's right to due process
was violated. It should be noted that due process is a right of the accused as much as
it is of the prosecution. The needed inquiry in what capacity petitioner was acting at
the time of the alleged utterances requires for its resolution evidentiary basis that
has yet to be presented at the proper time.1 At any rate, it has been ruled that the
mere invocation of the immunity clause does not ipso facto result in the dropping of
the charges.2
Second, under Section 45 of the Agreement which provides:
Officers and staff of the Bank including for the purpose of this Article experts
and consultants performing missions for the Bank shall enjoy the following
privileges and immunities:
a.) immunity from legal process with respect to acts performed by
them in their official capacity except when the Bank waives the
immunity.
the immunity mentioned therein is not absolute, but subject to the exception that
the acts was done in "official capacity." It is therefore necessary to determine if
petitioner's case falls within the ambit of Section 45(a). Thus, the prosecution should
have been given the chance to rebut the DFA protocol and it must be accorded the
opportunity to present its controverting evidence, should it so desire.
Third, slandering a person could not possibly be covered by the immunity agreement
because our laws do not allow the commission of a crime, such as defamation, in the
name of official duty.3 The imputation of theft is ultra vires and cannot be part of
official functions. It is well-settled principle of law that a public official may be liable
in his personal private capacity for whatever damage he may have caused by his act
done with malice or in bad faith or beyond the scope of his authority or jurisdiction. 4 It
appears that even the government's chief legal counsel, the Solicitor General, does
not support the stand taken by petitioner and that of the DFA.
Fourth, under the Vienna Convention on Diplomatic Relations, a diplomatic agent,
assuming petitioner is such, enjoys immunity from criminal jurisdiction of the
receiving state except in the case of an action relating to any professional or
commercial activity exercised by the diplomatic agent in the receiving state outside
his official functions.5 As already mentioned above, the commission of a crime is not
part of official duty.
Finally, on the contention that there was no preliminary investigation conducted,
suffice it to say that preliminary investigation is not a matter of right in cases
cognizable by the MeTC such as the one at bar.6 Being purely a statutory right,
preliminary investigation may be invoked only when specifically granted by law.7 The
rule on the criminal procedure is clear that no preliminary investigation is required in
cases falling within the jurisdiction of the MeTC.8 Besides the absence of preliminary
investigation does not affect the court's jurisdiction nor does it impair the validity of
the information or otherwise render it defective.9
WHEREFORE, the petition is DENIED. SO ORDERED. Davide, Jr., C.J., Puno, Kapunan
and Pardo, JJ., concur.
G.R. No. L-44896 July 31, 1936 November 15, 1935, has brought about a fundamental change in the
political and legal status of the Philippines. On the date mentioned the
RODOLFO A. SCHNECKENBURGER, petitioner, Constitution of the Philippines went into full force and effect. This
vs. Constitution is the supreme law of the land. Not only the members of this
MANUEL V. MORAN, Judge of First Instance of Manila, respondent. court but all other officers, legislative, executive and judicial, of the
Government of the Commonwealth, are bound by oath to support the
Cardenas and Casal for petitioner. Constitution. (Article XIII, section 2.) This court owes its own existence to the
Office of the Solicitor-General Hilado for respondent. great instrument, and derives all its powers therefrom. In the exercise of its
powers and jurisdiction, this court is bound by the provisions of the
Constitution. The Constitution provides that the original jurisdiction of this
ABAD SANTOS, J.:
court "shall include all cases affecting ambassadors, other public ministers,
and consuls." In deciding the instant case this court cannot go beyond this
The petitioner was duly accredited honorary consul of Uruguay at Manila, Philippine
constitutional provision.
Islands on June 11, 1934. He was subsequently charged in the Court of First Instance
of Manila with the crime of falsification of a private document. He objected to the
2. It remains to consider whether the original jurisdiction thus conferred
jurisdiction of the court on the ground that both under the Constitution of the United
upon this court by the Constitution over cases affecting ambassadors, other
States and the Constitution of the Philippines the court below had no jurisdiction to
public ministers, and consuls, is exclusive. The Constitution does not define
try him. His objection having been overruled, he filed this petition for a writ of
the jurisdiction of this court in specific terms, but merely provides that "the
prohibition with a view to preventing the Court of First Instance of Manila from taking
Supreme Court shall have such original and appellate jurisdiction as may be
cognizance of the criminal action filed against him.
possessed and exercised by the Supreme Court of the Philippine Islands at
the time of the adoption of this Constitution." It then goes on to provide that
In support of this petition counsel for the petitioner contend (1) That the Court of
the original jurisdiction of this court "shall include all cases affecting
First Instance of Manila is without jurisdiction to try the case filed against the
ambassadors, other public ministers, and consuls."
petitioner for the reason that under Article III, section 2, of the Constitution of the
United States, the Supreme Court of the United States has original jurisdiction in all
In the light of the constitutional provisions above adverted to, the question arises
cases affecting ambassadors, other public ministers, and consuls, and such
whether the original jurisdiction possessed and exercised by the Supreme Court of
jurisdiction excludes the courts of the Philippines; and (2) that even under the
the Philippine Islands at the time of the adoption of the Constitution was exclusive.
Constitution of the Philippines original jurisdiction over cases affecting ambassadors,
other public ministers, and consuls, is conferred exclusively upon the Supreme Court
of the Philippines. The original jurisdiction possessed and exercised by the Supreme Court of the
Philippine Islands at the time of the adoption of the Constitution was derived from
section 17 of Act No. 136, which reads as follows: The Supreme Court shall have
This case involves no question of diplomatic immunity. It is well settled that a consul
original jurisdiction to issue writs of mandamus, certiorari, prohibition, habeas
is not entitled to the privileges and immunities of an ambassador or minister, but is
corpus, and quo warrantoin the cases and in the manner prescribed in the Code of
subject to the laws and regulations of the country to which he is accredited. (Ex
Civil Procedure, and to hear and determine the controversies thus brought before it,
parte Baiz, 135 U. S., 403; 34 Law. ed., 222.) A consul is not exempt from criminal
and in other cases provided by law." Jurisdiction to issue writs of quo
prosecution for violations of the laws of the country where he resides. (U.
warranto, certiorari, mandamus, prohibition, and habeas corpus was also conferred
S. vs. Ravara, 2 Dall., 297; 1 Law. ed., 388; Wheaton's International Law [2d ed.], 423.)
on the Courts of First Instance by the Code of Civil Procedure. (Act No. 190, secs. 197,
The substantial question raised in this case is one of jurisdiction.
217, 222, 226, and 525.) It results that the original jurisdiction possessed and
exercised by the Supreme Court of the Philippine Islands at the time of the adoption
1. We find no merit in the contention that Article III, section 2, of the
of the Constitution was not exclusive of, but concurrent with, that of the Courts of
Constitution of the United States governs this case. We do not deem it
First Instance. Inasmuch as this is the same original jurisdiction vested in this court
necessary to discuss the question whether the constitutional provision
by the Constitution and made to include all cases affecting ambassadors, other public
relied upon by the petitioner extended ex propio vigore over the Philippines.
Suffice it to say that the inauguration of the Philippine Commonwealth on
ministers, and consuls, it follows that the jurisdiction of this court over such cases is
not exclusive.

The conclusion we have reached upon this branch of the case finds support in the
pertinent decisions of the Supreme Court of the United States. The Constitution of
the United States provides that the Supreme Court shall have "original jurisdiction"
in all cases affecting ambassadors, other public ministers, and consuls. In construing
this constitutional provision, the Supreme Court of the United States held that the
"original jurisdiction thus conferred upon the Supreme Court by the Constitution was
not exclusive jurisdiction, and that such grant of original jurisdiction did not prevent
Congress from conferring original jurisdiction in cases affecting consuls on the
subordinate courts of the Union. (U. S. vs. Ravara, supra; Bors vs. Preston, 111 U. S.,
252; 28 Law. ed., 419.)

3. The laws in force in the Philippines prior to the inauguration of the Commonwealth
conferred upon the Courts of the First Instance original jurisdiction in all criminal
cases to which a penalty of more than six months' imprisonment or a fine exceeding
one hundred dollars might be imposed. (Act No. 136, sec. 56.) Such jurisdiction
included the trial of criminal actions brought against consuls for, as we have already
indicated, consuls, not being entitled to the privileges and immunities of
ambassadors or ministers, are subject to the laws and regulations of the country
where they reside. By Article XV, section 2, of the Constitution, all laws of the
Philippine Islands in force at the time of the adoption of the Constitution were to
continue in force until the inauguration of the Commonwealth; thereafter, they were
to remain operative, unless inconsistent with the Constitution until amended,
altered, modified, or repealed by the National Assembly. The original jurisdiction
granted to the Courts of First Instance to try criminal cases was not made exclusively
by any, law in force prior to the inauguration of the Commonwealth, and having
reached the conclusion that the jurisdiction conferred upon this court by the
Constitution over cases affecting ambassadors, other public ministers, and consuls,
is not an exclusive jurisdiction, the laws in force at the time of the adoption of the
Constitution, granting the Courts of First Instance jurisdiction in such cases, are not
inconsistent with the Constitution, and must be deemed to remain operative and in
force, subject to the power of the National Assembly to amend alter, modify, or
repeal the same. (Asiatic P. Co. vs. Insular Collector of Customs, U. S. Supreme Court
[Law. ed.], Adv. Ops., vol. 80, No. 12, pp. 620, 623.)

We conclude, therefore, that the Court of First Instance of Manila has jurisdiction to
try the petitioner, an that the petition for a writ of prohibition must be denied. So
ordered.

Avanceña, C. J., Villa-Real, Imperial, Diaz, and Recto, JJ., concur.

G.R. No. 142396 February 11, 2003
KHOSROW MINUCHER, petitioner,
vs.
HON. COURT OF APPEALS and ARTHUR SCALZO, respondents.
DECISION
VITUG, J.:
Sometime in May 1986, an Information for violation of Section 4 of Republic Act No.
6425, otherwise also known as the "Dangerous Drugs Act of 1972," was filed against
petitioner Khosrow Minucher and one Abbas Torabian with the Regional Trial Court,
Branch 151, of Pasig City. The criminal charge followed a "buy-bust operation"
conducted by the Philippine police narcotic agents in the house of Minucher, an
Iranian national, where a quantity of heroin, a prohibited drug, was said to have been
seized. The narcotic agents were accompanied by private respondent Arthur Scalzo
who would, in due time, become one of the principal witnesses for the prosecution.
On 08 January 1988, Presiding Judge Eutropio Migrino rendered a decision acquitting
the two accused.
On 03 August 1988, Minucher filed Civil Case No. 88-45691 before the Regional Trial
Court (RTC), Branch 19, of Manila for damages on account of what he claimed to have
been trumped-up charges of drug trafficking made by Arthur Scalzo. The Manila RTC
detailed what it had found to be the facts and circumstances surrounding the case.
"The testimony of the plaintiff disclosed that he is an Iranian national. He came to the
Philippines to study in the University of the Philippines in 1974. In 1976, under the
regime of the Shah of Iran, he was appointed Labor Attaché for the Iranian Embassies
in Tokyo, Japan and Manila, Philippines. When the Shah of Iran was deposed by
Ayatollah Khomeini, plaintiff became a refugee of the United Nations and continued
to stay in the Philippines. He headed the Iranian National Resistance Movement in
the Philippines.
"He came to know the defendant on May 13, 1986, when the latter was brought to
his house and introduced to him by a certain Jose Iñigo, an informer of the
Intelligence Unit of the military. Jose Iñigo, on the other hand, was met by plaintiff at
the office of Atty. Crisanto Saruca, a lawyer for several Iranians whom plaintiff
assisted as head of the anti-Khomeini movement in the Philippines.
"During his first meeting with the defendant on May 13, 1986, upon the introduction
of Jose Iñigo, the defendant expressed his interest in buying caviar. As a matter of
fact, he bought two kilos of caviar from plaintiff and paid P10,000.00 for it. Selling
caviar, aside from that of Persian carpets, pistachio nuts and other Iranian products
was his business after the Khomeini government cut his pension of over $3,000.00
per month. During their introduction in that meeting, the defendant gave the plaintiff
his calling card, which showed that he is working at the US Embassy in the Philippines,
as a special agent of the Drug Enforcement Administration, Department of Justice, of
the United States, and gave his address as US Embassy, Manila. At the back of the
card appears a telephone number in defendant’s own handwriting, the number of
which he can also be contacted.
"It was also during this first meeting that plaintiff expressed his desire to obtain a US
Visa for his wife and the wife of a countryman named Abbas Torabian. The defendant
told him that he [could] help plaintiff for a fee of $2,000.00 per visa. Their
conversation, however, was more concentrated on politics, carpets and caviar.
Thereafter, the defendant promised to see plaintiff again.
"On May 19, 1986, the defendant called the plaintiff and invited the latter for dinner
at Mario's Restaurant at Makati. He wanted to buy 200 grams of caviar. Plaintiff
brought the merchandize but for the reason that the defendant was not yet there,
he requested the restaurant people to x x x place the same in the refrigerator.
Defendant, however, came and plaintiff gave him the caviar for which he was paid.
Then their conversation was again focused on politics and business.
"On May 26, 1986, defendant visited plaintiff again at the latter's residence for 18
years at Kapitolyo, Pasig. The defendant wanted to buy a pair of carpets which
plaintiff valued at $27,900.00. After some haggling, they agreed at $24,000.00. For
the reason that defendant did not yet have the money, they agreed that defendant
would come back the next day. The following day, at 1:00 p.m., he came back with
his $24,000.00, which he gave to the plaintiff, and the latter, in turn, gave him the
pair of carpets.1awphi1.nét
"At about 3:00 in the afternoon of May 27, 1986, the defendant came back again to
plaintiff's house and directly proceeded to the latter's bedroom, where the latter and
his countryman, Abbas Torabian, were playing chess. Plaintiff opened his safe in the
bedroom and obtained $2,000.00 from it, gave it to the defendant for the latter's fee
in obtaining a visa for plaintiff's wife. The defendant told him that he would be leaving
the Philippines very soon and requested him to come out of the house for a while so
that he can introduce him to his cousin waiting in a cab. Without much ado, and
without putting on his shirt as he was only in his pajama pants, he followed the
defendant where he saw a parked cab opposite the street. To his complete surprise,
an American jumped out of the cab with a drawn high-powered gun. He was in the
company of about 30 to 40 Filipino soldiers with 6 Americans, all armed. He was
handcuffed and after about 20 minutes in the street, he was brought inside the house
by the defendant. He was made to sit down while in handcuffs while the defendant
was inside his bedroom. The defendant came out of the bedroom and out from
defendant's attaché case, he took something and placed it on the table in front of the
plaintiff. They also took plaintiff's wife who was at that time at the boutique near his
house and likewise arrested Torabian, who was playing chess with him in the
bedroom and both were handcuffed together. Plaintiff was not told why he was being
handcuffed and why the privacy of his house, especially his bedroom was invaded by
defendant. He was not allowed to use the telephone. In fact, his telephone was
unplugged. He asked for any warrant, but the defendant told him to `shut up.’ He was
nevertheless told that he would be able to call for his lawyer who can defend him.
"The plaintiff took note of the fact that when the defendant invited him to come out
to meet his cousin, his safe was opened where he kept the $24,000.00 the defendant
paid for the carpets and another $8,000.00 which he also placed in the safe together
with a bracelet worth $15,000.00 and a pair of earrings worth $10,000.00. He also
discovered missing upon his release his 8 pieces hand-made Persian carpets, valued
at $65,000.00, a painting he bought for P30,000.00 together with his TV and betamax
sets. He claimed that when he was handcuffed, the defendant took his keys from his
wallet. There was, therefore, nothing left in his house.
"That his arrest as a heroin trafficker x x x had been well publicized throughout the
world, in various newspapers, particularly in Australia, America, Central Asia and in
the Philippines. He was identified in the papers as an international drug trafficker. x
xx
In fact, the arrest of defendant and Torabian was likewise on television, not only in
the Philippines, but also in America and in Germany. His friends in said places
informed him that they saw him on TV with said news.
"After the arrest made on plaintiff and Torabian, they were brought to Camp Crame
handcuffed together, where they were detained for three days without food and
water."1
During the trial, the law firm of Luna, Sison and Manas, filed a special appearance for
Scalzo and moved for extension of time to file an answer pending a supposed advice
from the United States Department of State and Department of Justice on the
defenses to be raised. The trial court granted the motion. On 27 October 1988, Scalzo
filed another special appearance to quash the summons on the ground that he, not
being a resident of the Philippines and the action being one in personam, was beyond
the processes of the court. The motion was denied by the court, in its order of 13
December 1988, holding that the filing by Scalzo of a motion for extension of time to
file an answer to the complaint was a voluntary appearance equivalent to service of
summons which could likewise be construed a waiver of the requirement of formal
notice. Scalzo filed a motion for reconsideration of the court order, contending that
a motion for an extension of time to file an answer was not a voluntary appearance
equivalent to service of summons since it did not seek an affirmative relief. Scalzo
argued that in cases involving the United States government, as well as its agencies
and officials, a motion for extension was peculiarly unavoidable due to the need (1)
for both the Department of State and the Department of Justice to agree on the
defenses to be raised and (2) to refer the case to a Philippine lawyer who would be
expected to first review the case. The court a quo denied the motion for
reconsideration in its order of 15 October 1989.
Scalzo filed a petition for review with the Court of Appeals, there docketed CA-G.R.
No. 17023, assailing the denial. In a decision, dated 06 October 1989, the appellate
court denied the petition and affirmed the ruling of the trial court. Scalzo then
elevated the incident in a petition for review on certiorari, docketed G.R. No. 91173,
to this Court. The petition, however, was denied for its failure to comply with SC
Circular No. 1-88; in any event, the Court added, Scalzo had failed to show that the
appellate court was in error in its questioned judgment.
Meanwhile, at the court a quo, an order, dated 09 February 1990, was issued (a)
declaring Scalzo in default for his failure to file a responsive pleading (answer) and (b)
setting the case for the reception of evidence. On 12 March 1990, Scalzo filed a
motion to set aside the order of default and to admit his answer to the complaint.
Granting the motion, the trial court set the case for pre-trial. In his answer, Scalzo
denied the material allegations of the complaint and raised the affirmative defenses
(a) of Minucher’s failure to state a cause of action in his complaint and (b) that Scalzo
had acted in the discharge of his official duties as being merely an agent of the Drug
Enforcement Administration of the United States Department of Justice. Scalzo
interposed a counterclaim of P100,000.00 to answer for attorneys' fees and expenses
of litigation.
Then, on 14 June 1990, after almost two years since the institution of the civil case,
Scalzo filed a motion to dismiss the complaint on the ground that, being a special
agent of the United States Drug Enforcement Administration, he was entitled to
diplomatic immunity. He attached to his motion Diplomatic Note No. 414 of the
United States Embassy, dated 29 May 1990, addressed to the Department of Foreign
Affairs of the Philippines and a Certification, dated 11 June 1990, of Vice Consul
Donna Woodward, certifying that the note is a true and faithful copy of its original.
In an order of 25 June 1990, the trial court denied the motion to dismiss.
On 27 July 1990, Scalzo filed a petition for certiorari with injunction with this Court,
docketed G.R. No. 94257 and entitled "Arthur W. Scalzo, Jr., vs. Hon. Wenceslao Polo,
et al.," asking that the complaint in Civil Case No. 88-45691 be ordered dismissed.
The case was referred to the Court of Appeals, there docketed CA-G.R. SP No. 22505,
per this Court’s resolution of 07 August 1990. On 31 October 1990, the Court of
Appeals promulgated its decision sustaining the diplomatic immunity of Scalzo and
ordering the dismissal of the complaint against him. Minucher filed a petition for
review with this Court, docketed G.R. No. 97765 and entitled "Khosrow Minucher vs.
the Honorable Court of Appeals, et. al." (cited in 214 SCRA 242), appealing the
judgment of the Court of Appeals. In a decision, dated 24 September 1992, penned
by Justice (now Chief Justice) Hilario Davide, Jr., this Court reversed the decision of
the appellate court and remanded the case to the lower court for trial. The remand
was ordered on the theses (a) that the Court of Appeals erred in granting the motion
to dismiss of Scalzo for lack of jurisdiction over his person without even considering
the issue of the authenticity of Diplomatic Note No. 414 and (b) that the complaint
contained sufficient allegations to the effect that Scalzo committed the imputed acts
in his personal capacity and outside the scope of his official duties and, absent any
evidence to the contrary, the issue on Scalzo’s diplomatic immunity could not be
taken up.
The Manila RTC thus continued with its hearings on the case. On 17 November 1995,
the trial court reached a decision; it adjudged:
"WHEREFORE, and in view of all the foregoing considerations, judgment is hereby
rendered for the plaintiff, who successfully established his claim by sufficient
evidence, against the defendant in the manner following:
"`Adjudging defendant liable to plaintiff in actual and compensatory damages of
P520,000.00; moral damages in the sum of P10 million; exemplary damages in the
sum of P100,000.00; attorney's fees in the sum of P200,000.00 plus costs.
`The Clerk of the Regional Trial Court, Manila, is ordered to take note of the lien of
the Court on this judgment to answer for the unpaid docket fees considering that the
plaintiff in this case instituted this action as a pauper litigant.’"2
While the trial court gave credence to the claim of Scalzo and the evidence presented
by him that he was a diplomatic agent entitled to immunity as such, it ruled that he,
nevertheless, should be held accountable for the acts complained of committed
outside his official duties. On appeal, the Court of Appeals reversed the decision of
the trial court and sustained the defense of Scalzo that he was sufficiently clothed
with diplomatic immunity during his term of duty and thereby immune from the
criminal and civil jurisdiction of the "Receiving State" pursuant to the terms of the
Vienna Convention.
Hence, this recourse by Minucher. The instant petition for review raises a two-fold
issue: (1) whether or not the doctrine of conclusiveness of judgment, following the
decision rendered by this Court in G.R. No. 97765, should have precluded the Court
of Appeals from resolving the appeal to it in an entirely different manner, and (2)
whether or not Arthur Scalzo is indeed entitled to diplomatic immunity.
The doctrine of conclusiveness of judgment, or its kindred rule of res judicata, would
require 1) the finality of the prior judgment, 2) a valid jurisdiction over the subject
matter and the parties on the part of the court that renders it, 3) a judgment on the
merits, and 4) an identity of the parties, subject matter and causes of action.3 Even
while one of the issues submitted in G.R. No. 97765 - "whether or not public
respondent Court of Appeals erred in ruling that private respondent Scalzo is a
diplomat immune from civil suit conformably with the Vienna Convention on
Diplomatic Relations" - is also a pivotal question raised in the instant petition, the
ruling in G.R. No. 97765, however, has not resolved that point with finality. Indeed,
the Court there has made this observation -
"It may be mentioned in this regard that private respondent himself, in his Pre-trial
Brief filed on 13 June 1990, unequivocally states that he would present documentary
evidence consisting of DEA records on his investigation and surveillance of plaintiff
and on his position and duties as DEA special agent in Manila. Having thus reserved
his right to present evidence in support of his position, which is the basis for the
alleged diplomatic immunity, the barren self-serving claim in the belated motion to
dismiss cannot be relied upon for a reasonable, intelligent and fair resolution of the
issue of diplomatic immunity."4
Scalzo contends that the Vienna Convention on Diplomatic Relations, to which the
Philippines is a signatory, grants him absolute immunity from suit, describing his
functions as an agent of the United States Drugs Enforcement Agency as "conducting
surveillance operations on suspected drug dealers in the Philippines believed to be
the source of prohibited drugs being shipped to the U.S., (and) having ascertained
the target, (he then) would inform the Philippine narcotic agents (to) make the actual
arrest." Scalzo has submitted to the trial court a number of documents -
1. Exh. '2' - Diplomatic Note No. 414 dated 29 May 1990;
2. Exh. '1' - Certification of Vice Consul Donna K. Woodward dated 11 June
1990;
3. Exh. '5' - Diplomatic Note No. 757 dated 25 October 1991;
4. Exh. '6' - Diplomatic Note No. 791 dated 17 November 1992; and
5. Exh. '7' - Diplomatic Note No. 833 dated 21 October 1988.
 6. Exh. '3' - 1st Indorsement of the Hon. Jorge R. Coquia, Legal Adviser,
Department of Foreign Affairs, dated 27 June 1990 forwarding Embassy
Note No. 414 to the Clerk of Court of RTC Manila, Branch 19 (the trial court);
7. Exh. '4' - Diplomatic Note No. 414, appended to the 1st Indorsement (Exh.
'3'); and
8. Exh. '8' - Letter dated 18 November 1992 from the Office of the Protocol,
Department of Foreign Affairs, through Asst. Sec. Emmanuel Fernandez,
addressed to the Chief Justice of this Court.5
The documents, according to Scalzo, would show that: (1) the United States Embassy
accordingly advised the Executive Department of the Philippine Government that
Scalzo was a member of the diplomatic staff of the United States diplomatic mission
from his arrival in the Philippines on 14 October 1985 until his departure on 10 August
1988; (2) that the United States Government was firm from the very beginning in
asserting the diplomatic immunity of Scalzo with respect to the case pursuant to the
provisions of the Vienna Convention on Diplomatic Relations; and (3) that the United
States Embassy repeatedly urged the Department of Foreign Affairs to take
appropriate action to inform the trial court of Scalzo’s diplomatic immunity. The
other documentary exhibits were presented to indicate that: (1) the Philippine
government itself, through its Executive Department, recognizing and respecting the
diplomatic status of Scalzo, formally advised the "Judicial Department" of his
diplomatic status and his entitlement to all diplomatic privileges and immunities
under the Vienna Convention; and (2) the Department of Foreign Affairs itself
authenticated Diplomatic Note No. 414. Scalzo additionally presented Exhibits "9" to
"13" consisting of his reports of investigation on the surveillance and subsequent
arrest of Minucher, the certification of the Drug Enforcement Administration of the
United States Department of Justice that Scalzo was a special agent assigned to the
Philippines at all times relevant to the complaint, and the special power of attorney
executed by him in favor of his previous counsel 6 to show (a) that the United States
Embassy, affirmed by its Vice Consul, acknowledged Scalzo to be a member of the
diplomatic staff of the United States diplomatic mission from his arrival in the
Philippines on 14 October 1985 until his departure on 10 August 1988, (b) that, on
May 1986, with the cooperation of the Philippine law enforcement officials and in
the exercise of his functions as member of the mission, he investigated Minucher for
alleged trafficking in a prohibited drug, and (c) that the Philippine Department of
Foreign Affairs itself recognized that Scalzo during his tour of duty in the Philippines
(14 October 1985 up to 10 August 1988) was listed as being an Assistant Attaché of
the United States diplomatic mission and accredited with diplomatic status by the
Government of the Philippines. In his Exhibit 12, Scalzo described the functions of the
overseas office of the United States Drugs Enforcement Agency, i.e., (1) to provide
criminal investigative expertise and assistance to foreign law enforcement agencies
on narcotic and drug control programs upon the request of the host country, 2) to
establish and maintain liaison with the host country and counterpart foreign law
enforcement officials, and 3) to conduct complex criminal investigations involving
international criminal conspiracies which affect the interests of the United States.
The Vienna Convention on Diplomatic Relations was a codification of centuries-old
customary law and, by the time of its ratification on 18 April 1961, its rules of law had
long become stable. Among the city states of ancient Greece, among the peoples of
the Mediterranean before the establishment of the Roman Empire, and among the
states of India, the person of the herald in time of war and the person of the
diplomatic envoy in time of peace were universally held sacrosanct. 7 By the end of
the 16th century, when the earliest treatises on diplomatic law were published, the
inviolability of ambassadors was firmly established as a rule of customary
international law.8Traditionally, the exercise of diplomatic intercourse among states
was undertaken by the head of state himself, as being the preeminent embodiment
of the state he represented, and the foreign secretary, the official usually entrusted
with the external affairs of the state. Where a state would wish to have a more
prominent diplomatic presence in the receiving state, it would then send to the latter
a diplomatic mission. Conformably with the Vienna Convention, the functions of the
diplomatic mission involve, by and large, the representation of the interests of the
sending state and promoting friendly relations with the receiving state.9
The Convention lists the classes of heads of diplomatic missions to include (a)
ambassadors or nuncios accredited to the heads of state, 10 (b) envoys,11 ministers
or internuncios accredited to the heads of states; and (c) charges d'
affairs12 accredited to the ministers of foreign affairs. 13 Comprising the "staff of the
(diplomatic) mission" are the diplomatic staff, the administrative staff and the
technical and service staff. Only the heads of missions, as well as members of the
diplomatic staff, excluding the members of the administrative, technical and service
staff of the mission, are accorded diplomatic rank. Even while the Vienna Convention
on Diplomatic Relations provides for immunity to the members of diplomatic
missions, it does so, nevertheless, with an understanding that the same be
restrictively applied. Only "diplomatic agents," under the terms of the Convention,
are vested with blanket diplomatic immunity from civil and criminal suits. The
Convention defines "diplomatic agents" as the heads of missions or members of the
diplomatic staff, thus impliedly withholding the same privileges from all others. It
might bear stressing that even consuls, who represent their respective states in
concerns of commerce and navigation and perform certain administrative and
notarial duties, such as the issuance of passports and visas, authentication of
documents, and administration of oaths, do not ordinarily enjoy the traditional
diplomatic immunities and privileges accorded diplomats, mainly for the reason that
they are not charged with the duty of representing their states in political matters.
Indeed, the main yardstick in ascertaining whether a person is a diplomat entitled to
immunity is the determination of whether or not he performs duties of diplomatic
nature.
Scalzo asserted, particularly in his Exhibits "9" to "13," that he was an Assistant
Attaché of the United States diplomatic mission and was accredited as such by the
Philippine Government. An attaché belongs to a category of officers in the diplomatic
establishment who may be in charge of its cultural, press, administrative or financial
affairs. There could also be a class of attaches belonging to certain ministries or
departments of the government, other than the foreign ministry or department, who
are detailed by their respective ministries or departments with the embassies such
as the military, naval, air, commercial, agricultural, labor, science, and customs
attaches, or the like. Attaches assist a chief of mission in his duties and are
administratively under him, but their main function is to observe, analyze and
interpret trends and developments in their respective fields in the host country and
submit reports to their own ministries or departments in the home
government.14 These officials are not generally regarded as members of the
diplomatic mission, nor are they normally designated as having diplomatic rank.
In an attempt to prove his diplomatic status, Scalzo presented Diplomatic Notes Nos.
414, 757 and 791, all issued post litem motam, respectively, on 29 May 1990, 25
October 1991 and 17 November 1992. The presentation did nothing much to alleviate
the Court's initial reservations in G.R. No. 97765, viz:
"While the trial court denied the motion to dismiss, the public respondent gravely
abused its discretion in dismissing Civil Case No. 88-45691 on the basis of an
erroneous assumption that simply because of the diplomatic note, the private
respondent is clothed with diplomatic immunity, thereby divesting the trial court of
jurisdiction over his person.
"x x x x x x x x x
"And now, to the core issue - the alleged diplomatic immunity of the private
respondent. Setting aside for the moment the issue of authenticity raised by the
petitioner and the doubts that surround such claim, in view of the fact that it took
private respondent one (1) year, eight (8) months and seventeen (17) days from the
time his counsel filed on 12 September 1988 a Special Appearance and Motion asking
for a first extension of time to file the Answer because the Departments of State and
Justice of the United States of America were studying the case for the purpose of
determining his defenses, before he could secure the Diplomatic Note from the US
Embassy in Manila, and even granting for the sake of argument that such note is
authentic, the complaint for damages filed by petitioner cannot be peremptorily
dismissed.
"x x x x x x x x x
"There is of course the claim of private respondent that the acts imputed to him were
done in his official capacity. Nothing supports this self-serving claim other than the
so-called Diplomatic Note. x x x. The public respondent then should have sustained
the trial court's denial of the motion to dismiss. Verily, it should have been the most
proper and appropriate recourse. It should not have been overwhelmed by the self-
serving Diplomatic Note whose belated issuance is even suspect and whose
authenticity has not yet been proved. The undue haste with which respondent Court
yielded to the private respondent's claim is arbitrary."
A significant document would appear to be Exhibit No. 08, dated 08 November 1992,
issued by the Office of Protocol of the Department of Foreign Affairs and signed by
Emmanuel C. Fernandez, Assistant Secretary, certifying that "the records of the
Department (would) show that Mr. Arthur W. Scalzo, Jr., during his term of office in
the Philippines (from 14 October 1985 up to 10 August 1988) was listed as an
Assistant Attaché of the United States diplomatic mission and was, therefore,
accredited diplomatic status by the Government of the Philippines." No certified true
copy of such "records," the supposed bases for the belated issuance, was presented
in evidence.
Concededly, vesting a person with diplomatic immunity is a prerogative of the
executive branch of the government. In World Health Organization vs. Aquino, 15 the
Court has recognized that, in such matters, the hands of the courts are virtually tied.
Amidst apprehensions of indiscriminate and incautious grant of immunity, designed
to gain exemption from the jurisdiction of courts, it should behoove the Philippine
government, specifically its Department of Foreign Affairs, to be most circumspect,
that should particularly be no less than compelling, in its post litem motam issuances.
It might be recalled that the privilege is not an immunity from the observance of the
law of the territorial sovereign or from ensuing legal liability; it is, rather, an immunity
from the exercise of territorial jurisdiction.16 The government of the United States
itself, which Scalzo claims to be acting for, has formulated its standards for
recognition of a diplomatic agent. The State Department policy is to only concede
diplomatic status to a person who possesses an acknowledged diplomatic title and
"performs duties of diplomatic nature."17 Supplementary criteria for accreditation
are the possession of a valid diplomatic passport or, from States which do not issue
such passports, a diplomatic note formally representing the intention to assign the
person to diplomatic duties, the holding of a non-immigrant visa, being over twenty-
one years of age, and performing diplomatic functions on an essentially full-time
basis.18 Diplomatic missions are requested to provide the most accurate and
descriptive job title to that which currently applies to the duties performed. The
Office of the Protocol would then assign each individual to the appropriate functional
category.19
But while the diplomatic immunity of Scalzo might thus remain contentious, it was
sufficiently established that, indeed, he worked for the United States Drug
Enforcement Agency and was tasked to conduct surveillance of suspected drug
activities within the country on the dates pertinent to this case. If it should be
ascertained that Arthur Scalzo was acting well within his assigned functions when he
committed the acts alleged in the complaint, the present controversy could then be
resolved under the related doctrine of State Immunity from Suit.
The precept that a State cannot be sued in the courts of a foreign state is a long-
standing rule of customary international law then closely identified with the personal
immunity of a foreign sovereign from suit20 and, with the emergence of democratic
states, made to attach not just to the person of the head of state, or his
representative, but also distinctly to the state itself in its sovereign capacity. 21 If the
acts giving rise to a suit are those of a foreign government done by its foreign agent,
although not necessarily a diplomatic personage, but acting in his official capacity,
the complaint could be barred by the immunity of the foreign sovereign from suit
without its consent. Suing a representative of a state is believed to be, in effect, suing
the state itself. The proscription is not accorded for the benefit of an individual but
for the State, in whose service he is, under the maxim - par in parem, non habet
imperium - that all states are sovereign equals and cannot assert jurisdiction over one
another.22 The implication, in broad terms, is that if the judgment against an official
would require the state itself to perform an affirmative act to satisfy the award, such
as the appropriation of the amount needed to pay the damages decreed against him,
the suit must be regarded as being against the state itself, although it has not been
formally impleaded.23
In United States of America vs. Guinto,24 involving officers of the United States Air
Force and special officers of the Air Force Office of Special Investigators charged with
the duty of preventing the distribution, possession and use of prohibited drugs, this
Court has ruled -
"While the doctrine (of state immunity) appears to prohibit only suits against the
state without its consent, it is also applicable to complaints filed against officials of
the state for acts allegedly performed by them in the discharge of their duties. x x x.
It cannot for a moment be imagined that they were acting in their private or unofficial
capacity when they apprehended and later testified against the complainant. It
follows that for discharging their duties as agents of the United States, they cannot
be directly impleaded for acts imputable to their principal, which has not given its
consent to be sued. x x x As they have acted on behalf of the government, and within
the scope of their authority, it is that government, and not the petitioners personally,
[who were] responsible for their acts."25
This immunity principle, however, has its limitations. Thus, Shauf vs. Court of
Appeals26 elaborates:
"It is a different matter where the public official is made to account in his capacity as
such for acts contrary to law and injurious to the rights of the plaintiff. As was clearly
set forth by Justice Zaldivar in Director of the Bureau of Telecommunications, et al.,
vs. Aligaen, et al. (33 SCRA 368): `Inasmuch as the State authorizes only legal acts by
its officers, unauthorized acts of government officials or officers are not acts of the
State, and an action against the officials or officers by one whose rights have been
invaded or violated by such acts, for the protection of his rights, is not a suit against
the State within the rule of immunity of the State from suit. In the same tenor, it has
been said that an action at law or suit in equity against a State officer or the director
of a State department on the ground that, while claiming to act for the State, he
violates or invades the personal and property rights of the plaintiff, under an
unconstitutional act or under an assumption of authority which he does not have, is
not a suit against the State within the constitutional provision that the State may not
be sued without its consent. The rationale for this ruling is that the doctrine of state
immunity cannot be used as an instrument for perpetrating an injustice.
"x x x x x x x x x
"(T)he doctrine of immunity from suit will not apply and may not be invoked where
the public official is being sued in his private and personal capacity as an ordinary
citizen. The cloak of protection afforded the officers and agents of the government is
removed the moment they are sued in their individual capacity. This situation usually
arises where the public official acts without authority or in excess of the powers
vested in him. It is a well-settled principle of law that a public official may be liable in
his personal private capacity for whatever damage he may have caused by his act
done with malice and in bad faith or beyond the scope of his authority and
jurisdiction."27
A foreign agent, operating within a territory, can be cloaked with immunity from suit
but only as long as it can be established that he is acting within the directives of the
sending state. The consent of the host state is an indispensable requirement of basic
courtesy between the two sovereigns. Guinto and Shauf both involve officers and
personnel of the United States, stationed within Philippine territory, under the RP-
US Military Bases Agreement. While evidence is wanting to show any similar
agreement between the governments of the Philippines and of the United States (for
the latter to send its agents and to conduct surveillance and related activities of
suspected drug dealers in the Philippines), the consent or imprimatur of the
Philippine government to the activities of the United States Drug Enforcement
Agency, however, can be gleaned from the facts heretofore elsewhere mentioned.
The official exchanges of communication between agencies of the government of the
two countries, certifications from officials of both the Philippine Department of
Foreign Affairs and the United States Embassy, as well as the participation of
members of the Philippine Narcotics Command in the "buy-bust operation"
conducted at the residence of Minucher at the behest of Scalzo, may be inadequate
to support the "diplomatic status" of the latter but they give enough indication that
the Philippine government has given its imprimatur, if not consent, to the activities
within Philippine territory of agent Scalzo of the United States Drug Enforcement
Agency. The job description of Scalzo has tasked him to conduct surveillance on
suspected drug suppliers and, after having ascertained the target, to inform local law
enforcers who would then be expected to make the arrest. In conducting surveillance
activities on Minucher, later acting as the poseur-buyer during the buy-bust
operation, and then becoming a principal witness in the criminal case against
Minucher, Scalzo hardly can be said to have acted beyond the scope of his official
function or duties.

All told, this Court is constrained to rule that respondent Arthur Scalzo, an agent of
the United States Drug Enforcement Agency allowed by the Philippine government
to conduct activities in the country to help contain the problem on the drug traffic, is
entitled to the defense of state immunity from suit.

WHEREFORE, on the foregoing premises, the petition is DENIED. No costs.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio and Azcuna, JJ., concur
G.R. No. L-1988 February 24, 1948
JESUS MIQUIABAS, petitioner,
vs.
COMMANDING GENERAL, PHILIPPINE-RYUKYUS COMMAND, UNITED STATES
ARMY, respondents.
Lorenzo Sumulong and Esteban P. Garcia for petitioner.
J. A. Wolfson for respondent.
MORAN, C.J.:
This is a petition for a writ of habeas corpus filed by Jesus Miquiabas against the
Commanding General Philippine-Ryukyus Command, United States Army, who is
alleged to have petitioner under custody and to have appointed a General Court-
Martial to try petitioner in connection with an offense over which the said court has
no jurisdiction.
Petitioner is a Filipino citizen and a civilian employee of the United States Army in the
Philippines, who has been charged with disposing in the Port of Manila Area of things
belonging to the United States Army, in violation of the 94th Article of War of the
United States. He has been arrested for that reason and a General Court-Martial
appointed by respondent tried and found him guilty and sentenced him to 15 years
imprisonment. This sentence, however, is not yet final for it is still subject to review.
It may be stated as a rule that the Philippines, being a sovereign nation, has
jurisdiction over all offenses committed within its territory, but it may, by treaty or
by agreement, consent that the United States or any other foreign nation, shall
exercise jurisdiction over certain offenses committed within certain portions of said
territory. On March 11, 1947, the Republic of the Philippines and the Government of
the United States of America, entered into an agreement concerning military bases,
and Article XIII thereof is as follows:
JURISDICTION
1. The Philippines consents that the United States shall have the right to
exercise jurisdiction over the following offenses:
(a) Any offense committed by any person within any base except
where the offender and offended parties are both Philippine
citizens (not members of the armed forces of the United States on
active duty) or the offense is against the security of the Philippines;
(b) Any offense committed outside the bases by any member of the
armed forces of the United States in which the offended party is
also a member of the armed forces of the United States; and
(c) Any offense committed outside the bases by any member of the
armed forces of the United States against the security of the United
States.
2. The Philippines shall have the right to exercise jurisdiction over all other
offenses committed outside the bases by any member of the armed forces
of the United States.
3. Whenever for special reasons the United States may desire not to exercise
the jurisdiction reserved to it in paragraphs 1 and 6 of this Article, the officer
holding the offender in custody shall so notify the fiscal (prosecuting
attorney) of the city or province in which the offense has been committed
within ten days after his arrest, and in such case the Philippines shall exercise
jurisdiction.
4. Whenever for special reasons the Philippines may desire not to exercise
the jurisdiction reserved to it in paragraph 2 of this Article, the fiscal
(prosecuting attorney) of the city or province where the offense has been
committed shall so notify the officer holding the offender in custody within
ten days after his arrest, and in such a case the United States shall be free to
exercise jurisdiction. If any offense falling under paragraph 2 of this article
is committed by any member of the armed forces of the United States.
(a) While engaged in the actual performance of a specific military
duty, or
(b) during a period of national emergency declared by either
Government and the fiscal (prosecuting attorney) so finds from the
evidence, he shall immediately notify the officer holding the
offender in custody that the United States is free to exercise
jurisdiction. In the event the fiscal (prosecuting attorney) finds that
the offense was not committed in the actual performance of a
specific military duty, the offender's commanding officer shall have
the right to appeal from such finding to the Secretary of Justice
within ten days from the receipt of the decision of the fiscal and the
decision of the Secretary of Justice shall be final.
5. In all cases over which the Philippines exercises jurisdiction the custody of
the accused, pending trial and final judgment, shall be entrusted without
 delay to the commanding officer of the nearest base, who shall acknowledge
in writing that such accused has been delivered to him for custody pending
trial in a competent court of the Philippines and that he will be held ready
to appear and will be produced before said court when required by it. The
commanding officer shall be furnished by the fiscal (prosecuting attorney)
with a copy of the information against the accused upon the filing of the
original in the competent court.
6. Notwithstanding the foregoing provisions, it is naturally agreed that in
time of war the United States shall have the right to exercise exclusive
jurisdiction over any offenses which may be committed by members of the
armed forces of the United States in the Philippines.
7. The United States agrees that it will not grant asylum in any of the bases
to any person fleeing from the lawful jurisdiction of the Philippines. Should
such person be found in any base, he will be surrendered on demand to the
competent authorities of the Philippines.
8. In every case in which jurisdiction over an offense is exercised by the
United States, the offended party may institute a separate civil action
against the offender in the proper court of the Philippines to enforce the
civil liability which under the laws of the Philippines may arise from the
offense.
Under paragraph 1 (a), the General Court-Martial would have jurisdiction over the
criminal case against petitioner if the offense had been committed within a base.
Under paragraph 1 (b), if the offense had been committed outside a base, still the
General Court-Martial would have jurisdiction if the offense had been committed by
a "member of the armed forces of the United States" there being no question that
the offended party in this case is the United States. It is not necessary therefore, to
consider whether the offense is against "the security of the United States" under
paragraph 1 (c), or whether petitioner committed it in "the actual performance of a
specific military duty" or in time of a declared "national emergency" under paragraph
4, or whether we are still in a state of war under paragraph 6, for in all these instances
the military jurisdiction depends also upon whether the offender is a member of the
armed forces of the United States. We shall then determine in this case (1) whether
the offense has been committed within or without a base, and, in the second
instance, (2) whether the offender is or is not a member of the armed forces of the
United States.
As to the first question, Article XXVI of the Agreement provides that "bases are those
area named in Annex A and Annex B and such additional areas as may be acquired
for military purposes pursuant to the terms of this Agreement." Among the areas
specified in Annexes A and B, there is none that has reference to the Port Area of
Manila where the offense has allegedly been committed. On the contrary, it appears
in Annex A that "army communications system" is included, but with "the deletion of
all stations in the Port of Manila Area."
Paragraph 2 of Article XXI is invoked by respondent. The whole article is as follows:
TEMPORARY INSTALLATIONS
1. It is mutually agreed that the United States shall retain the right to occupy
temporary quarters and installations now existing outside the bases
mentioned in Annex A and Annex B, for such reasonable time, not exceeding
two years, as may be necessary to develop adequate facilities within the
bases for the United States armed forces. If circumstances require an
extension of time, such a period will be fixed by mutual agreement of the
two Governments; but such extension shall not apply to the existing
temporary quarters and installations within the limits of the City of Manila
and shall in no case exceed a period of three years.
2. Notwithstanding the provisions of the preceding paragraph, the Port of
Manila reservation with boundaries as of 1941 will be available for use to
the United States armed forces until such time as other arrangements can
be made for the supply of the bases by mutual agreement of the two
Governments.
3. The terms of this agreement pertaining to bases shall be applicable to
temporary quarters and installations referred to in paragraph 1 of this article
while they are so occupied by the armed forces of the United States;
provided, that offenses committed within the temporary quarters and
installations located within the present limits of the City of Manila shall not
be considered as offenses within the bases but shall be governed by the
provisions of Article XIII, paragraphs 2 and 4, except that the election not to
exercise the jurisdiction reserved to the Philippines shall be made by the
Secretary of Justice. It is agreed that the United States shall have full use and
full control of all these quarters and installations while they are occupied by
the armed forces of the United States, including the exercise of such
measures as may be necessary to police said quarters for the security of the
personnel and property therein.
The subject matter of this article, as indicated by its heading, is "Temporary
Installations." Paragraph 1 refers to temporary quarters and installations existing
outside the bases specified in Annex A and Annex B, which may be retained by the
United States armed forces for such reasonable time as may be necessary not
exceeding two years in duration, extendible fro not more than three years, the
extension not being applicable to existing temporary quarters and installations within
the limits of the City of Manila.
Paragraph 2, of Article XXI, refers to the Port of Manila Reservation, which will be
available for use to the United States armed forces, also as a temporary quarters and
installations, its temporariness not being for a definite period of time, but "until such
time as other arrangements can be made for supply of the bases by mutual
agreement of the two Governments." There is in paragraph 2 absolutely nothing that
may be construed as placing the Port of Manila Reservation in the category of a
permanent base.
Paragraph 3, of Article XXI, provides "that offenses committed within the temporary
quarters and installations located within the present limits of the City of Manila shall
not be considered as offenses within the bases but shall be governed by the
provisions of Article XIII, paragraphs 2 and 4." Therefore, the offense at bar cannot
be considered as committed within, but without, a base, since it has been committed
in the Port of Manila Area, which is not one of the bases mentioned in Annexes A and
B to the Agreement, and is merely temporary quarters located within the present
limits of the City of Manila.
Respondent maintains that petitioner has no cause of action because the Secretary
of Justice had not notified the officer holding the petitioner in custody whether or
not the Philippines desired to retain jurisdiction under Article XXI, paragraph 3, of the
Military Base Agreement. It is sufficient to state in this connection that in cases like
the present where the offender is a civilian employee and not a member of the Unites
States armed forces, no waiver can be made either by the prosecuting attorney of by
the Secretary of Justice, under paragraphs 2 and 4 of Article XIII in connection with
paragraph 3 of Article XXI, of the Agreement.
We are, therefore, of the opinion and so hold, that the General Court-Martial
appointed by respondent has no jurisdiction to try petitioner for the offense allegedly
committed by him and, consequently, the judgment rendered by said court
sentencing the petitioner to 15 years' imprisonment is null and void for lack of
jurisdiction.
It is ordered that petitioner be released immediately by respondent without
prejudice to any criminal action which may be instituted in the proper court of the
Philippines.
Let a copy of this decision be sent immediately to the Honorable, Secretary of Justice.

The next inquiry is whether or not the offender may be considered as a member of Paras, Feria, Pablo, Hilado, Bengzon, Briones, Padilla, and Tuason, JJ, concur.
the armed forces of the United States under Article XIII, paragraph 1 (b). As above
stated, petitioner is a Filipino citizen and a civilian employee of the United States
Army in the Philippines. Under the terms of the Agreement, a civilian employee
cannot be considered as a member of the armed forces of the United States. Articles
XI, XVI and XVIII of the Agreement make mention of civilian employees separately
from members of the armed forces of the United States, which is a conclusive
indication that under said Agreement armed forces do not include civilian employees.

Respondent invokes Articles II of the Articles of War of the United States, which
enumerates, among the persons subject to military law, persons accompanying or
serving with the armies of the United States. But this case should be decided not
under the Articles of War, but under the terms of the Base Agreement between the
United States and the Philippines. And not because a person is subject to military law
under the Articles of War does he become, for that reason alone, a member of the
armed forces under the Base Agreement. And even under the Articles of War, the
mere fact that a civilian employee is in the service of the United States Army does
not make him a member of the armed forces of the United States. Otherwise, it would
have been necessary for said Article to enumerate civilian employees separately from
members of the armed forces of the United States.
G.R. No. L-5270 January 15, 1910
THE UNITED STATES, plaintiff-appellee,
vs.
H. N. BULL, defendant-appellant.
Bruce & Lawrence, for appellant.
Office of the Solicitor-General Harvey, for appellee.
ELLIOTT, J.:
The appellant was convicted in the Court of First Instance of a violation of section 1
of Act No. 55, as amended by section 1 of Act No. 275, and from the judgment
entered thereon appealed to this court, where under proper assignments of error he
contends: (1) that the complaint does not state facts sufficient to confer jurisdiction
upon the court; (2) that under the evidence the trial court was without jurisdiction to
hear and determine the case; (3) that Act No. 55 as amended is in violation of certain
provisions of the Constitution of the United States, and void as applied to the facts of
this case; and (4) that the evidence is insufficient to support the conviction.
The information alleges:
That on and for many months prior to the 2d day of December, 1908, the
said H. N. Bull was then and there master of a steam sailing vessel known as
the steamship Standard, which vessel was then and there engaged in
carrying and transporting cattle, carabaos, and other animals from a foreign
port and city of Manila, Philippine Islands; that the said accused H. N. Bull,
while master of said vessel, as aforesaid, on or about the 2d day of
December, 1908, did then and there willfully, unlawfully, and wrongly carry,
transport, and bring into the port and city of Manila, aboard said vessel,
from the port of Ampieng, Formosa, six hundred and seventy-seven (677)
head of cattle and carabaos, without providing suitable means for securing
said animals while in transit, so as to avoid cruelty and unnecessary suffering
to the said animals, in this, to wit, that the said H. N. Bull, master, as
aforesaid, did then and there fail to provide stalls for said animals so in
transit and suitable means for trying and securing said animals in a proper
manner, and did then and there cause some of said animals to be tied by
means of rings passed through their noses, and allow and permit others to
be transported loose in the hold and on the deck of said vessel without being
tied or secured in stalls, and all without bedding; that by reason of the
aforesaid neglect and failure of the accused to provide suitable means for
securing said animals while so in transit, the noses of some of said animals
were cruelly torn, and many of said animals were tossed about upon the
decks and hold of said vessel, and cruelly wounded, bruised, and killed.
All contrary to the provisions of Acts No. 55 and No. 275 of the Philippine
Commission.
Section 1 of Act No. 55, which went into effect January 1, 1901, provides that —
The owners or masters of steam, sailing, or other vessels, carrying or
transporting cattle, sheep, swine, or other animals, from one port in the
Philippine Islands to another, or from any foreign port to any port within the
Philippine Islands, shall carry with them, upon the vessels carrying such
animals, sufficient forage and fresh water to provide for the suitable
sustenance of such animals during the ordinary period occupied by the
vessel in passage from the port of shipment to the port of debarkation, and
shall cause such animals to be provided with adequate forage and fresh
water at least once in every twenty-four hours from the time that the
animals are embarked to the time of their final debarkation.
By Act No. 275, enacted October 23, 1901, Act No. 55 was amended by adding to
section 1 thereof the following:
The owners or masters of steam, sailing, or other vessels, carrying or
transporting cattle, sheep, swine, or other animals from one port in the
Philippine Islands to another, or from any foreign port to any port within the
Philippine Islands, shall provide suitable means for securing such animals
while in transit so as to avoid all cruelty and unnecessary suffering to the
animals, and suitable and proper facilities for loading and unloading cattle
or other animals upon or from vessels upon which they are transported,
without cruelty or unnecessary suffering. It is hereby made unlawful to load
or unload cattle upon or from vessels by swinging them over the side by
means of ropes or chains attached to the thorns.
Section 3 of Act No. 55 provides that —
Any owner or master of a vessel, or custodian of such animals, who
knowingly and willfully fails to comply with the provisions of section one,
shall, for every such failure, be liable to pay a penalty of not less that one
hundred dollars nor more that five hundred dollars, United States money,
for each offense. Prosecution under this Act may be instituted in any Court
of First Instance or any provost court organized in the province or port in
which such animals are disembarked.
1. It is contended that the information is insufficient because it does not state that
the court was sitting at a port where the cattle were disembarked, or that the offense
was committed on board a vessel registered and licensed under the laws of the
Philippine Islands.
Act No. 55 confers jurisdiction over the offense created thereby on Courts of First
Instance or any provost court organized in the province or port in which such animals
are disembarked, and there is nothing inconsistent therewith in Act No. 136, which
provides generally for the organization of the courts of the Philippine Islands. Act No.
400 merely extends the general jurisdiction of the courts over certain offenses
committed on the high seas, or beyond the jurisdiction of any country, or within any
of the waters of the Philippine Islands on board a ship or water craft of any kind
registered or licensed in the Philippine Islands, in accordance with the laws thereof.
(U.S. vs. Fowler, 1 Phil. Rep., 614.) This jurisdiction may be exercised by the Court of
First Instance in any province into which such ship or water upon which the offense
or crime was committed shall come after the commission thereof. Had this offense
been committed upon a ship carrying a Philippine registry, there could have been no
doubt of the Jurisdiction of the court, because it is expressly conferred, and the Act
is in accordance with well recognized and established public law. But
the Standard was a Norwegian vessel, and it is conceded that it was not registered or
licensed in the Philippine Islands under the laws thereof. We have then the question
whether the court had jurisdiction over an offense of this character, committed on
board a foreign ship by the master thereof, when the neglect and omission which
constitutes the offense continued during the time the ship was within the territorial
waters of the United States. No court of the Philippine Islands had jurisdiction over
an offenses or crime committed on the high seas or within the territorial waters of
any other country, but when she came within 3 miles of a line drawn from the
headlines which embrace the entrance to Manila Bay, she was within territorial
waters, and a new set of principles became applicable. (Wheaton, Int. Law (Dana ed.),
p. 255, note 105; Bonfils, Le Droit Int., sec 490 et seq.; Latour, La Mer Ter., ch. 1.) The
ship and her crew were then subject to the jurisdiction of the territorial sovereign
subject through the proper political agency. This offense was committed within
territorial waters. From the line which determines these waters the Standard must
have traveled at least 25 miles before she came to anchor. During that part of her
voyage the violation of the statue continued, and as far as the jurisdiction of the court
is concerned, it is immaterial that the same conditions may have existed while the
vessel was on the high seas. The offense, assuming that it originated at the port of
departure in Formosa, was a continuing one, and every element necessary to
constitute it existed during the voyage across the territorial waters. The completed
forbidden act was done within American waters, and the court therefore had
jurisdiction over the subject-matter of the offense and the person of the offender.
The offense then was thus committed within the territorial jurisdiction of the court,
but the objection to the jurisdiction raises the further question whether that
jurisdiction is restricted by the fact of the nationality of the ship. Every. Every state
has complete control and jurisdiction over its territorial waters. According to strict
legal right, even public vessels may not enter the ports of a friendly power without
permission, but it is now conceded that in the absence of a prohibition such ports are
considered as open to the public ship of all friendly powers. The exemption of such
vessels from local jurisdiction while within such waters was not established until
within comparatively recent times. In 1794, Attorney-General Bradford, and in 1796
Attorney-General Lee, rendered opinions to the effect that "the laws of nations invest
the commander of a foreign ship of war with no exemption from the jurisdiction of
the country into which he comes." (1, Op. U.S. Attys. Gen., 46, 87.) This theory was
also supported by Lord Stowell in an opinion given by him to the British Government
as late as 1820. In the leading case of the Schooner Exchange vs. McFadden (7 Cranch
(U.S.), 116, 144), Chief Justice Marshall said that the implied license under which such
vessels enter a friendly port may reasonably be construed as "containing exemption
from the jurisdiction of the sovereign within whose territory she claims the rights of
hospitality." The principle was accepted by the Geneva Arbitration Tribunal, which
announced that "the priviledge of exterritoriality accorded to vessels of war has been
admitted in the law of nations; not as an absolute right, but solely as a proceeding
founded on the principle of courtesy and mutual deference between nations."
(2 Moore, Int. Law Dig., secs. 252 and 254; Hall, Int. Law, sec. 55; Taylor, Int. Law, sec.
256; Ortolan, Dip de la Mer, 2. C.X.)
Such vessels are therefore permitted during times of peace to come and go freely.
Local official exercise but little control over their actions, and offenses committed by
their crew are justiciable by their own officers acting under the laws to which they
primarily owe allegiance. This limitation upon the general principle of territorial
sovereignty is based entirely upon comity and convenience, and finds its justification
in the fact that experience shows that such vessels are generally careful to respect
local laws and regulation which are essential to the health, order, and well-being of
the port. But comity and convenience does not require the extension of the same
degree of exemption to merchant vessels. There are two well-defined theories as to
extent of the immunities ordinarily granted to them, According to the French theory
and practice, matters happening on board a merchant ship which do not concern the
tranquillity of the port or persons foreign to the crew, are justiciable only by the court
of the country to which the vessel belongs. The French courts therefore claim
exclusive jurisdiction over crimes committed on board French merchant vessels in
foreign ports by one member of the crew against another. (See Bonfils, Le Droit Int.
(quat. ed.), secs. 624-628; Martens, Le Droit Int., tome 2, pp. 338, 339; Ortolan, Dip.
de la Mer, tit. 1, p. 292; Masse, Droit Int., tome 2, p. 63.) Such jurisdiction has never
been admitted or claim by Great Britain as a right, although she has frequently
conceded it by treaties. (Halleck, Int. Law (Baker's ed.), vol. 1, 231; British Territorial
Waters Act, 1878.) Writers who consider exterritoriality as a fact instead of a theory
have sought to restrict local jurisdiction, but Hall, who is doubtless the leading English
authority, says that —
It is admitted by the most thoroughgoing asserters of the territoriality of
merchant vessels that so soon as the latter enter the ports of a foreign state
they become subject to the local jurisdiction on all points in which the
interests of the country are touched. (Hall, Int. Law, p. 263.)
The United States has adhered consistently to the view that when a merchant vessel
enters a foreign port it is subject to the jurisdiction of the local authorities, unless the
local sovereignty has by act of acquiescence or through treaty arrangements
consented to waive a portion of such jurisdiction. (15 Op. Attys. Gen., U. S., 178; 2
Moore, Int. Law Dig., sec. 204; article by Dean Gregory, Mich. Law Review, Vol. II, No.
5.) Chief Justice Marshall, in the case of the Exchange, said that —
When merchant vessels enter for the purpose of trade, in would be
obviously in convinient and dangerous to society and would subject the laws
to continual infraction and the government to degradation if such individual
merchants did not owe temporary and local allegiance, and were not
amendable to the jurisdiction of the country.
The Supreme Court of the United States has recently said that the merchant vessels
of one country visiting the ports of another for the purpose of trade, subject
themselves to the laws which govern the ports they visit, so long as they remain; and
this as well in war as in peace, unless otherwise provided by treaty. (U.
S. vs. Diekelman, 92 U. S., 520-525.)
Certain limitations upon the jurisdiction of the local courts are imposed by article 13
of the treaty of commerce and navigation between Sweden and Norway and the
United States, of July 4, 1827, which concedes to the consul, vice-consuls, or consular
agents of each country "The right to sit as judges and arbitrators in such differences
as may arise between the captains and crews of the vessels belonging to the nation
whose interests are committed to their charge, without the interference of the local
authorities, unless the conduct of the crews or of the captains should disturb the
order or tranquillity of the country." (Comp. of Treaties in Force, 1904, p. 754.) This
exception applies to controversies between the members of the ship's company, and
particularly to disputes regarding wages. (2 Moore, Int. Law Dig., sec. 206, p. 318;
Tellefsen vs. Fee, 168 Mass., 188.) The order and tranquillity of the country are
affected by many events which do not amount to a riot or general public disturbance.
Thus an assault by one member of the crew upon another, committed upon the ship,
of which the public may have no knowledge whatever, is not by this treaty withdrawn
from the cognizance of the local authorities.
In 1876 the mates of the Swedish bark Frederike and Carolina engaged in a "quarrel"
on board the vessel in the port of Galveston, Texas. They were prosecuted before a
justice of the peace, but the United States district attorney was instructed by the
Government to take the necessary steps to have the proceedings dismissed, and the
aid of the governor of Texas was invoked with the view to "guard against a repetition
of similar proceedings." (Mr. Fish, Secretary of State, to Mr. Grip, Swedish and
Norwegian charged, May 16, 1876; Moore, Int. Law Dig.) It does not appear that this
"quarrel" was of such a nature as to amount to a breach of the criminal laws of Texas,
but when in 1879 the mate for the Norwegian bark Livingston was prosecuted in the
courts of Philadelphia County for an assault and battery committed on board the ship
while lying in the port of Philadelphia, it was held that there was nothing in the treaty
which deprived the local courts of jurisdiction. (Commonwealth vs. Luckness, 14
Phila. (Pa.), 363.) Representations were made through diplomatic channels to the
State Department, and on July 30, 1880, Mr. Evarts, Secretary of State, wrote to
Count Lewenhaupt, the Swedish and Norwegian minister, as follows:
I have the honor to state that I have given the matter careful consideration
in connection with the views and suggestion of your note and the provisions
of the thirteenth article of the treaty of 1827 between the United States and
Sweden and Norway. The stipulations contained in the last clause of that
article . . . are those under which it is contended by you that jurisdiction is
conferred on the consular officers, not only in regard to such differences of
a civil nature growing out of the contract of engagement of the seamen, but
also as to disposing of controversies resulting from personal violence
involving offense for which the party may be held amenable under the local
criminal law.
This Government does not view the article in question as susceptible of such
broad interpretation. The jurisdiction conferred upon the consuls is
conceived to be limited to their right to sit as judges or abitrators in such
differences as may arise between captains and crews of the vessels, where
such differences do not involve on the part of the captain or crew a
disturbance of the order or tranquillity of the country. When, however, a
complaint is made to a local magistrate, either by the captain or one or more
of the crew of the vessel, involving the disturbance of the order or
tranquillity of the country, it is competent for such magistrate to take
cognizance of the matter in furtherance of the local laws, and under such
circumstances in the United States it becomes a public duty which the judge
or magistrate is not at liberty voluntarily to forego. In all such cases it must
necessarily be left to the local judicial authorities whether the procedure
shall take place in the United States or in Sweden to determine if in fact
there had been such disturbance of the local order and tranquillity, and if
the complaint is supported by such proof as results in the conviction of the
 party accused, to visit upon the offenders such punishment as may be
defined against the offense by the municipal law of the place." (Moore, Int.
Law Dig., vol. 2, p. 315.)
The treaty does not therefore deprive the local courts of jurisdiction over offenses
committed on board a merchant vessel by one member of the crew against another
which amount to a disturbance of the order or tranquillity of the country, and a fair
and reasonable construction of the language requires un to hold that any violation of
criminal laws disturbs the order or traquillity of the country. The offense with which
the appellant is charged had nothing to so with any difference between the captain
and the crew. It was a violation by the master of the criminal law of the country into
whose port he came. We thus find that neither by reason of the nationality of the
vessel, the place of the commission of the offense, or the prohibitions of any treaty
or general principle of public law, are the court of the Philippine Islands deprived of
jurisdiction over the offense charged in the information in this case.
It is further contended that the complaint is defective because it does not allege that
the animals were disembarked at the port of Manila, an allegation which it is claimed
is essential to the jurisdiction of the court sitting at that port. To hold with the
appellant upon this issue would be to construe the language of the complaint very
strictly against the Government. The disembarkation of the animals is not necessary
in order to constitute the completed offense, and a reasonable construction of the
language of the statute confers jurisdiction upon the court sitting at the port into
which the animals are bought. They are then within the territorial jurisdiction of the
court, and the mere fact of their disembarkation is immaterial so far as jurisdiction is
concerned. This might be different if the disembarkation of the animals constituted
a constitutional element in the offense, but it does not.
It is also contended that the information is insufficient because it fails to allege that
the defendant knowingly and willfully failed to provide suitable means for securing
said animals while in transit, so as to avoid cruelty and unnecessary suffering. The
allegation of the complaint that the act was committed willfully includes the
allegation that it was committed knowingly. As said in Woodhouse vs. Rio Grande
R.R. Company (67 Texas, 416), "the word 'willfully' carries the idea, when used in
connection with an act forbidden by law, that the act must be done knowingly or
intentionally; that, with knowledge, the will consented to, designed, and directed the
act." So in Wong vs. City of Astoria (13 Oregon, 538), it was said: "The first one is that
the complaint did not show, in the words of the ordinance, that the appellant
'knowingly' did the act complained of. This point, I think, was fully answered by the
respondent's counsel — that the words 'willfully' and 'knowingly' conveyed the same
meaning. To 'willfully' do an act implies that it was done by design — done for a
certain purpose; and I think that it would necessarily follow that it was 'knowingly'
done." To the same effect is Johnson vs. The People (94 Ill., 505), which seems to be
on all fours with the present case.
The evidence shows not only that the defendant's acts were knowingly done, but his
defense rests upon the assertion that "according to his experience, the system of
carrying cattle loose upon the decks and in the hold is preferable and more secure to
the life and comfort of the animals." It was conclusively proven that what was done
was done knowingly and intentionally.
In charging an offense under section 6 of General Orders, No. 58, paragraph 3, it is
only necessary to state the act or omission complained of as constituting a crime or
public offense in ordinary and concise language, without repitition. It need not
necessarily be in the words of the statute, but it must be in such form as to enable a
person of common understanding to know what is intended and the court to
pronounce judgment according to right. A complaint which complies with this
requirement is good. (U.S. vs. Sarabia, 4 Phil. Rep., 556.)
The Act, which is in the English language, impose upon the master of a vessel the duty
to "provide suitable means for securing such animals while in transit, so as to avoid
all cruelty and unnecessary suffering to the animals." The allegation of the complaint
as it reads in English is that the defendant willfully, unlawfully, and wrongfully carried
the cattle "without providing suitable means for securing said animals while in transit,
so as to avoid cruelty and unnecessary suffering to the said animals in this . . . that by
reason of the aforesaid neglect and failure of the accused to provide suitable means
for securing said animals were cruelty torn, and many of said animals were tossed
about upon the decks and hold of said vessels, and cruelty wounded, bruised, and
killed."
The appellant contends that the language of the Spanish text of the information does
not charge him with failure to provide "sufficient" and "adequate" means. The words
used are "medios suficientes" and "medios adecuados." In view of the fact that the
original complaint was prepared in English, and that the word "suitable" is
translatable by the words "adecuado," "suficiente," and "conveniente," according to
the context and circumstances, we determine this point against the appellant,
particularly in view of the fact that the objection was not made in the court below,
and that the evidence clearly shows a failure to provide "suitable means for the
protection of the animals."
2. The appellant's arguments against the constitutionality of Act No. 55 and the
amendment thereto seems to rest upon a fundamentally erroneous conception of
the constitutional law of these Islands. The statute penalizes acts and ommissions
incidental to the transportation of live stock between foreign ports and ports of the
Philippine Islands, and had a similar statute regulating commerce with its ports been
enacted by the legislature of one of the States of the Union, it would doubtless have
been in violation of Article I, section 3, of the Constitution of the United States.
(Stubbs vs. People (Colo.), 11 L. R. A., N. S., 1071.)
But the Philippine Islands is not a State, and its relation to the United States is
controlled by constitutional principles different from those which apply to States of
the Union. The importance of the question thus presented requires a statement of
the principles which govern those relations, and consideration of the nature and
extent of the legislative power of the Philippine Commission and the Legislature of
the Philippines. After much discussion and considerable diversity of opinion certain
applicable constitutional doctrines are established.
The Constitution confers upon the United States the express power to make war and
treaties, and it has the power possessed by all nations to acquire territory by
conquest or treaty. Territory thus acquired belongs to the United States, and to guard
against the possibility of the power of Congress to provide for its government being
questioned, the framers of the Constitution provided in express terms that Congress
should have the power "to dispose of and make all needful rules and regulations
respecting territory and other property belonging to the United States." (Art. IV, sec.
3, par. 3.) Upon the acquisition of the territory by the United States, and until it is
formally incorporated into the Union, the duty of providing a government therefor
devolves upon Congress. It may govern the territory by its direct acts, or it may create
a local government, and delegate thereto the ordinary powers required for local
government. (Binns vs. U. S., 194 U. S., 486.) This has been the usual procedure.
Congress has provided such governments for territories which were within the Union,
and for newly acquired territory not yet incorporated therein. It has been customary
to organize a government with the ordinary separation of powers into executive,
legislative, and judicial, and to prescribe in an organic act certain general conditions
in accordance with which the local government should act. The organic act thus
became the constitution of the government of the territory which had not been
formally incorporated into the Union, and the validity of legislation enacted by the
local legislature was determined by its conformity with the requirements of such
organic act. (National Bank vs. Yankton, 11 Otto (U. S.), 129.) To the legislative body
of the local government Congress has delegated that portion of legislative power
which in its wisdom it deemed necessary for the government of the territory,
reserving, however, the right to annul the action of the local legislature and itself
legislate directly for the territory. This power has been exercised during the entire
period of the history of the United States. The right of Congress to delegate such
legislative power can no longer be seriously questioned. (Dorr vs. U. S., 195 U. S., 138;
U. S. vs. Heinszen, 206 U. S., 370, 385.)
The Constitution of the United States does not by its own force operate within such
territory, although the liberality of Congress in legislating the Constitution into
contiguous territory tended to create an impression upon the minds of many people
that it went there by its own force. (Downes vs. Bidwell, 182 U. S., 289.) In legislating
with reference to this territory, the power of Congress is limited only by those
prohibitions of the Constitution which go to the very root of its power to act at all,
irrespective of time or place. In all other respects it is plenary. (De Lima vs. Bidwell,
182 U. S., 1; Downes vs. Bidwell, 182 U. S., 244; Hawaii vs. Mankichi, 190 U. S., 197;
Dorr vs. U. S., 195 U. S., 138; Rassmussen vs. U. S., 197 U. S., 516.)
This power has been exercised by Congress throughout the whole history of the
United States, and legislation founded on the theory was enacted long prior to the
acquisition of the present Insular possessions. Section 1891 of the Revised Statutes
of 1878 provides that "The Constitution and all laws of the United States which are
not locally inapplicable shall have the same force and effect within all the organized
territories, and in every Territory hereafter organized, as elsewhere within the United
States." When Congress organized a civil government for the Philippines, it expressly
provided that this section of the Revised Statutes should not apply to the Philippine
Islands. (Sec. 1, Act of 1902.)
In providing for the government of the territory which was acquired by the United
States as a result of the war with Spain, the executive and legislative authorities have
consistently proceeded in conformity with the principles above state. The city of
Manila was surrendered to the United States on August 13, 1898, and the military
commander was directed to hold the city, bay, and harbor, pending the conclusion
of a peace which should determine the control, disposition, and government of the
Islands. The duty then devolved upon the American authorities to preserve peace and
protect person and property within the occupied territory. Provision therefor was
made by proper orders, and on August 26 General Merritt assumed the duties of
military governor. The treaty of peace was signed December 10, 1898. On the 22d of
December, 1898, the President announced that the destruction of the Spanish fleet
and the surrender of the city had practically effected the conquest of the Philippine
Islands and the suspension of the Spanish sovereignty therein, and that by the treaty
of peace the future control, disposition, and government of the Islands had been
ceded to the United States. During the periods of strict military occupation, before
the treaty of peace was ratified, and the interim thereafter, until Congress acted
(Santiago vs. Noueral, 214 U.S., 260), the territory was governed under the military
authority of the President as commander in chief. Long before Congress took any
action, the President organized a civil government which, however, had its legal
justification, like the purely military government which it gradually superseded, in the
war power. The military power of the President embraced legislative, executive
personally, or through such military or civil agents as he chose to select. As stated by
Secretary Root in his report for 1901 —
 The military power in exercise in a territory under military occupation
includes executive, legislative, and judicial authority. It not infrequently
happens that in a single order of a military commander can be found the
exercise of all three of these different powers — the exercise of the
legislative powers by provisions prescribing a rule of action; of judicial power
by determination of right; and the executive power by the enforcement of
the rules prescribed and the rights determined.
President McKinley desired to transform military into civil government as rapidly as
conditions would permit. After full investigation, the organization of civil government
was initiated by the appointment of a commission to which civil authority was to be
gradually transferred. On September 1, 1900, the authority to exercise, subject to the
approval of the President. "that part of the military power of the President in the
Philippine Islands which is legislative in its character" was transferred from the
military government to the Commission, to be exercised under such rules and
regulations as should be prescribed by the Secretary of War, until such time as
complete civil government should be established, or congress otherwise provided.
The legislative power thus conferred upon the Commission was declared to include
"the making of rules and orders having the effect of law for the raising of revenue by
taxes, customs duties, and imposts; the appropriation and expenditure of public
funds of the Islands; the establishment of an educational system to secure an efficient
civil service; the organization and establishment of courts; the organization and
establishment of municipal and departmental government, and all other matters of
a civil nature which the military governor is now competent to provide by rules or
orders of a legislative character." This grant of legislative power to the Commission
was to be exercised in conformity with certain declared general principles, and
subject to certain specific restrictions for the protection of individual rights. The
Commission were to bear in mind that the government to be instituted was "not for
our satisfaction or for the expression of our theoretical views, but for the happiness,
peace, and prosperity of the people of the Philippine Island, and the measures
adopted should be made to conforms to their customs, their habits, and even their
prejudices, to the fullest extent consistent with the accomplishment of the
indispensable requisites of just and effective government." The specific restrictions
upon legislative power were found in the declarations that "no person shall be
deprived of life, liberty, or property without due process of law; that private property
shall not be taken for public use without just compensation; that in all criminal
prosecutions the accused shall enjoy the right to a speedy and public trial, to be
informed of the nature and cause of the accusation, to be confronted with the
witnesses against him, to have compulsory process for obtaining witnesses in his
favor, and to have the assistance of counsel for his defense; that excessive bail shall
not be required, nor excessive fines imposed, nor cruel and unusual punishment
inflicted; that no person shall be put twice in jeopardy for the same offense or be
compelled in any criminal case to be a witness against himself; that the right to be
secure against unreasonable searches and seizures shall not be violated; that neither
slavery nor involuntary servitude shall exist except as a punishment for crime; that
no bill of attainder or ex post facto law shall be passed; that no law shall be passed
abridging the freedom of speech or of the press or of the rights of the people to
peaceably assemble and petition the Government for a redress of grievances; that no
law shall be made respecting an establishment of religion or prohibiting the free
exercise thereof, and that the free exercise and enjoyment of religious profession
and worship without discrimination or preference shall forever be allowed."
To prevent any question as to the legality of these proceedings being raised, the
Spooner amendment to the Army Appropriation Bill passed March 2, 1901, provided
that "all military, civil, and judicial powers necessary to govern the Philippine Islands
. . . shall until otherwise provided by Congress be vested in such person and persons,
and shall be exercised in such manner, as the President of the United States shall
direct, for the establishment of civil government, and for maintaining and protecting
the inhabitants of said Islands in the free enjoyment of their liberty, property, and
religion." Thereafter, on July 4, 1901, the authority, which had been exercised
previously by the military governor, was transferred to that official. The government
thus created by virtue of the authority of the President as Commander in Chief of the
Army and Navy continued to administer the affairs of the Islands under the direction
of the President until by the Act of July 1, 1902, Congress assumed control of the
situation by the enactment of a law which, in connection with the instructions of April
7, 1900, constitutes the organic law of the Philippine Islands.
The Act of July 1, 1902, made no substancial changes in the form of government
which the President had erected. Congress adopted the system which was in
operation, and approved the action of the President in organizing the government.
Substantially all the limitations which had been imposed on the legislative power by
the President's instructions were included in the law, Congress thus extending to the
Islands by legislative act nor the Constitution, but all its provisions for the protection
of the rights and privileges of individuals which were appropriate under the
conditions. The action of the President in creating the Commission with designated
powers of government, in creating the office of the Governor-General and Vice-
Governor-General, and through the Commission establishing certain executive
departments, was expressly approved and ratified. Subsequently the action of the
President in imposing a tariff before and after the ratification of the treaty of peace
was also ratified and approved by Congress. (Act of March 8, 1902; Act of July 1, 1902;
U.S. vs. Heinszen, 206 U.S., 370; Lincoln vs. U.S., 197 U.S., 419.) Until otherwise
provided by law the Islands were to continue to be governed "as thereby and herein
provided." In the future the enacting clause of all statutes should read "By authority
of the United States" instead of "By the authority of the President." In the course of
time the legislative authority of the Commission in all parts of the Islands not
inhabited by Moros or non-Christian tribes was to be transferred to a legislature
consisting of two houses — the Philippine Commission and the Philippine Assembly.
The government of the Islands was thus assumed by Congress under its power to
govern newly acquired territory not incorporated into the United States.
This Government of the Philippine Islands is not a State or a Territory, although its
form and organization somewhat resembles that of both. It stands outside of the
constitutional relation which unites the States and Territories into the Union. The
authority for its creation and maintenance is derived from the Constitution of the
United States, which, however, operates on the President and Congress, and not
directly on the Philippine Government. It is the creation of the United States, acting
through the President and Congress, both deriving power from the same source, but
from different parts thereof. For its powers and the limitations thereon the
Government of the Philippines looked to the orders of the President before Congress
acted and the Acts of Congress after it assumed control. Its organic laws are derived
from the formally and legally expressed will of the President and Congress, instead
of the popular sovereign constituency which lies upon any subject relating to the
Philippines is primarily in Congress, and when it exercise such power its act is from
the viewpoint of the Philippines the legal equivalent of an amendment of a
constitution in the United States.
Within the limits of its authority the Government of the Philippines is a complete
governmental organism with executive, legislative, and judicial departments
exercising the functions commonly assigned to such departments. The separation of
powers is as complete as in most governments. In neither Federal nor State
governments is this separation such as is implied in the abstract statement of the
doctrine. For instance, in the Federal Government the Senate exercises executive
powers, and the President to some extent controls legislation through the veto
power. In a State the veto power enables him to exercise much control over
legislation. The Governor-General, the head of the executive department in the
Philippine Government, is a member of the Philippine Commission, but as executive
he has no veto power. The President and Congress framed the government on the
model with which Americans are familiar, and which has proven best adapted for the
advancement of the public interests and the protection of individual rights and
priviliges.
In instituting this form of government of intention must have been to adopt the
general constitutional doctrined which are inherent in the system. Hence, under it
the Legislature must enact laws subject to the limitations of the organic laws, as
Congress must act under the national Constitution, and the States under the national
and state constitutions. The executive must execute such laws as are constitutionally
enacted. The judiciary, as in all governments operating under written constitutions,
must determine the validity of legislative enactments, as well as the legality of all
private and official acts. In performing these functions it acts with the same
independence as the Federal and State judiciaries in the United States. Under no
other constitutional theory could there be that government of laws and not of men
which is essential for the protection of rights under a free and orderly government.
Such being the constitutional theory of the Government of the Philippine Islands, it
is apparent that the courts must consider the question of the validity of an act of the
Philippine Commission or the Philippine Legislature, as a State court considers an act
of the State legislature. The Federal Government exercises such powers only as are
expressly or impliedly granted to it by the Constitution of the United States, while the
States exercise all powers which have not been granted to the central government.
The former operates under grants, the latter subject to restrictions. The validity of an
Act of Congress depends upon whether the Constitution of the United States contains
a grant of express or implied authority to enact it. An act of a State legislature is valid
unless the Federal or State constitution expressly or impliedly prohibits its enaction.
An Act of the legislative authority of the Philippines Government which has not been
expressly disapproved by Congress is valid unless its subject-matter has been covered
by congressional legislation, or its enactment forbidden by some provision of the
organic laws.
The legislative power of the Government of the Philippines is granted in general
terms subject to specific limitations. The general grant is not alone of power to
legislate on certain subjects, but to exercise the legislative power subject to the
restrictions stated. It is true that specific authority is conferred upon the Philippine
Government relative to certain subjects of legislation, and that Congress has itself
legislated upon certain other subjects. These, however, should be viewed simply as
enactments on matters wherein Congress was fully informed and ready to act, and
not as implying any restriction upon the local legislative authority in other matters.
(See Opinion of Atty. Gen. of U. S., April 16, 1908.)
The fact that Congress reserved the power to annul specific acts of legislation by the
Government of the Philippine tends strongly to confirm the view that for purposes of
construction the Government of the Philippines should be regarded as one of general
instead of enumerated legislative powers. The situation was unusual. The new
government was to operate far from the source of its authority. To relieve Congress
from the necessity of legislating with reference to details, it was thought better to
grant general legislative power to the new government, subject to broad and easily
understood prohibitions, and reserve to Congress the power to annul its acts if they
met with disapproval. It was therefore provided "that all laws passed by the
Government of the Philippine Islands shall be reported to Congress, which hereby
reserves the power and authority to annul the same." (Act of Congress, July 1, 1902,
sec. 86.) This provision does not suspend the acts of the Legislature of the Philippines
until approved by Congress, or when approved, expressly or by acquiescence, make
them the laws of Congress. They are valid acts of the Government of the Philippine
Islands until annulled. (Miners Bank vs. Iowa, 12 How. (U. S.), 1.)
In order to determine the validity of Act No. 55 we must then ascertain whether the
Legislature has been expressly or implication forbidden to enact it. Section 3, Article
IV, of the Constitution of the United States operated only upon the States of the
Union. It has no application to the Government of the Philippine Islands. The power
to regulate foreign commerce is vested in Congress, and by virtue of its power to
govern the territory belonging to the United States, it may regulate foreign
commerce with such territory. It may do this directly, or indirectly through a
legislative body created by it, to which its power in this respect if delegate. Congress
has by direct legislation determined the duties which shall be paid upon goods
imported into the Philippines, and it has expressly authorized the Government of the
Philippines to provide for the needs of commerce by improving harbors and navigable
waters. A few other specific provisions relating to foreign commerce may be found in
the Acts of Congress, but its general regulation is left to the Government of the
Philippines, subject to the reserved power of Congress to annul such legislation as
does not meet with its approval. The express limitations upon the power of the
Commission and Legislature to legislate do not affect the authority with respect to
the regulation of commerce with foreign countries. Act No. 55 was enacted before
Congress took over the control of the Islands, and this act was amended by Act No.
275 after the Spooner amendment of March 2, 1901, was passed. The military
government, and the civil government instituted by the President, had the power,
whether it be called legislative or administrative, to regulate commerce between
foreign nations and the ports of the territory. (Cross vs. Harrison, 16 How. (U.S.), 164,
190; Hamilton vs. Dillin, 21 Wall. (U.S.), 73, 87.) This Act has remained in force since
its enactment without annulment or other action by Congress, and must be
presumed to have met with its approval. We are therefore satisfied that the
Commission had, and the Legislature now has, full constitutional power to enact laws
for the regulation of commerce between foreign countries and the ports of the
Philippine Islands, and that Act No. 55, as amended by Act No. 275, is valid.
3. Whether a certain method of handling cattle is suitable within the meaning of the
Act can not be left to the judgment of the master of the ship. It is a question which
must be determined by the court from the evidence. On December 2, 1908, the
defendant Bull brought into and disembarked in the port and city of Manila certain
cattle, which came from the port of Ampieng, Formosa, without providing suitable
means for securing said animals while in transit, so as to avoid cruelty and
unnecessary suffering to said animals, contrary to the provisions of section 1 of Act
No. 55, as amended by section 1 of Act No. 275. The trial court found the following
facts, all of which are fully sustained by the evidence:
That the defendant, H. N. Bull, as captain and master of the Norwegian
steamer known as the Standard, for a period of six months or thereabouts
prior to the 2d day of December, 1908, was engaged in the transportation
of cattle and carabaos from Chines and Japanese ports to and into the city
of Manila, Philippine Islands.
That on the 2d day of December, 1908, the defendant, as such master and
captain as aforesaid, brought into the city of Manila, aboard said ship, a large
number of cattle, which ship was anchored, under the directions of the said
defendant, behind the breakwaters in front of the city of Manila, in Manila
Bay, and within the jurisdiction of this court; and that fifteen of said cattle
then and there had broken legs and three others of said cattle were dead,
having broken legs; and also that said cattle were transported and carried
upon said ship as aforesaid by the defendant, upon the deck and in the hold
of said ship, without suitable precaution and care for the transportation of
said animals, and to avoid danger and risk to their lives and security; and
further that said cattle were so transported abroad said ship by the
defendant and brought into the said bay, and into the city of Manila, without
any provisions being made whatever upon said decks of said ship and in the
hold thereof to maintain said cattle in a suitable condition and position for
such transportation.
That a suitable and practicable manner in which to transport cattle abroad
steamship coming into Manila Bay and unloading in the city of Manila is by
way of individual stalls for such cattle, providing partitions between the
cattle and supports at the front sides, and rear thereof, and cross-cleats
upon the floor on which they stand and are transported, of that in case of
storms, which are common in this community at sea, such cattle may be able
to stand without slipping and pitching and falling, individually or collectively,
and to avoid the production of panics and hazard to the animals on account
or cattle were transported in this case. Captain Summerville of the
steamship Taming, a very intelligent and experienced seaman, has testified,
as a witness in behalf of the Government, and stated positively that since
the introduction in the ships with which he is acquainted of the stall system
for the transportation of animals and cattle he has suffered no loss whatever
during the last year. The defendant has testified, as a witness in his own
behalf, that according to his experience the system of carrying cattle loose
upon the decks and in the hold is preferable and more secure to the life and
comfort of the animals, but this theory of the case is not maintainable, either
by the proofs or common reason. It can not be urged with logic that, for
instance, three hundred cattle supports for the feet and without stalls or any
other protection for them individually can safely and suitably carried in
times of storm upon the decks and in the holds of ships; such a theory is
against the law of nature. One animal falling or pitching, if he is untied or
unprotected, might produce a serious panic and the wounding of half the
animals upon the ship if transported in the manner found in this case.
The defendant was found guilty, and sentenced to pay a fine of two hundred and fifty
pesos, with subsidiary imprisonment in case of insolvency, and to pay the costs. The
sentence and judgment is affirmed. So ordered.

Arellano, C.J., Torres, Johnson, Carson and Moreland, JJ., concur.

G.R. No. L-5887 December 16, 1910
THE UNITED STATES, plaintiff-appellee,
vs.
LOOK CHAW (alias LUK CHIU), defendant-appellant.
Thos. D. Aitken for appellant.
Attorney-General Villamor for appellee.
ARELLANO, C. J.:
The first complaint filed against the defendant, in the Court of First Instance of Cebu,
stated that he "carried, kept, possessed and had in his possession and control, 96
kilogrammes of opium," and that "he had been surprised in the act of selling 1,000
pesos worth prepared opium."
The defense presented a demurrer based on two grounds, the second of which was
the more than one crime was charged in the complaint. The demurrer was sustained,
as the court found that the complaint contained two charges, one, for the unlawful
possession of opium, and the other, for the unlawful sale of opium, and, consequence
of that ruling, it ordered that the fiscal should separated one charge from the other
and file a complaint for each violation; this, the fiscal did, and this cause concerns
only the unlawful possession of opium. It is registered as No. 375, in the Court of First
Instance of Cebu, and as No. 5887 on the general docket of this court.
The facts of the case are contained in the following finding of the trial court:
The evidence, it says, shows that between 11 and 12 o'clock a. m. on the
present month (stated as August 19, 1909), several persons, among them
Messrs. Jacks and Milliron, chief of the department of the port of Cebu and
internal-revenue agent of Cebu, respectively, went abroad the
steamship Erroll to inspect and search its cargo, and found, first in a cabin
near the saloon, one sack (Exhibit A) and afterwards in the hold, another
sack (Exhibit B). The sack referred to as Exhibit A contained 49 cans of opium,
and the other, Exhibit B, the larger sack, also contained several cans of the
same substance. The hold, in which the sack mentioned in Exhibit B was
found, was under the defendant's control, who moreover, freely and of his
own will and accord admitted that this sack, as well as the other referred to
in Exhibit B and found in the cabin, belonged to him. The said defendant also
stated, freely and voluntarily, that he had bought these sacks of opium, in
Hongkong with the intention of selling them as contraband in Mexico or
Vera Cruz, and that, as his hold had already been searched several times for
opium, he ordered two other Chinamen to keep the sack. Exhibit A.
It is to be taken into account that the two sacks of opium, designated as Exhibits A
and B, properly constitute the corpus delicti. Moreover, another lot of four cans of
opium, marked, as Exhibit C, was the subject matter of investigation at the trial, and
with respect to which the chief of the department of the port of Cebu testified that
they were found in the part of the ship where the firemen habitually sleep, and that
they were delivered to the first officer of the ship to be returned to the said firemen
after the vessel should have left the Philippines, because the firemen and crew of
foreign vessels, pursuant to the instructions he had from the Manila custom-house,
were permitted to retain certain amounts of opium, always provided it should not be
taken shore.
And, finally, another can of opium, marked "Exhibit D," is also corpus delicti and
important as evidence in this cause. With regard to this the internal-revenue agent
testified as follows:itc-alf
FISCAL. What is it?
WITNESS. It is a can opium which was bought from the defendant by a
secret-service agent and taken to the office of the governor to prove that
the accused had opium in his possession to sell.
On motion by the defense, the court ruled that this answer might be stricken out
"because it refers to a sale." But, with respect to this answer, the chief of the
department of customs had already given this testimony, to wit:
FISCAL. Who asked you to search the vessel?
WITNESS. The internal-revenue agent came to my office and said that a
party brought him a sample of opium and that the same party knew that
there was more opium on board the steamer, and the agent asked that the
vessel be searched.
The defense moved that this testimony be rejected, on the ground of its being
hearsay evidence, and the court only ordered that the part thereof "that there was
more opium, on board the vessel" be stricken out.
The defense, to abbreviate proceedings, admitted that the receptacles mentioned as
Exhibits A, B, and C, contained opium and were found on board the steamship Erroll,
a vessel of English nationality, and that it was true that the defendant stated that
these sacks of opium were his and that he had them in his possession.
According to the testimony of the internal-revenue agent, the defendant stated to
him, in the presence of the provincial fiscal, of a Chinese interpreter (who afterwards
was not needed, because the defendant spoke English), the warden of the jail, and
four guards, that the opium seized in the vessel had been bought by him in Hongkong,
at three pesos for each round can and five pesos for each one of the others, for the
purpose of selling it, as contraband, in Mexico and Puerto de Vera Cruz; that on the
15th the vessel arrived at Cebu, and on the same day he sold opium; that he had tried
to sell opium for P16 a can; that he had a contract to sell an amount of the value of
about P500; that the opium found in the room of the other two Chinamen prosecuted
in another cause, was his, and that he had left it in their stateroom to avoid its being
found in his room, which had already been searched many times; and that, according
to the defendant, the contents of the large sack was 80 cans of opium, and of the
small one, 49, and the total number, 129.
thus committing an open violation of the laws of the land, with respect to which, as
it is a violation of the penal law in force at the place of the commission of the crime,
only the court established in that said place itself had competent jurisdiction, in the
absence of an agreement under an international treaty.
It is also found: That, even admitting that the quantity of the drug seized, the subject
matter of the present case, was considerable, it does not appear that, on such
account, the two penalties fixed by the law on the subject, should be imposed in the
maximum degree.
Therefore, reducing the imprisonment and the fine imposed to six months and
P1,000, respectively, we affirm in all other respects the judgment appealed from,
with the costs of this instance against the appellant. So ordered.

It was established that the steamship Erroll was of English nationality, that it came Torres, Mapa, Johnson, Carson, Moreland and Trent, JJ., concur.
from Hongkong, and that it was bound for Mexico, via the call ports of Manila and
Cebu.

The defense moved for a dismissal of the case, on the grounds that the court had no
jurisdiction to try the same and the facts concerned therein did not constitute a
crime. The fiscal, at the conclusion of his argument, asked that the maximum penalty
of the law be imposed upon the defendant, in view of the considerable amount of
opium seized. The court ruled that it did not lack jurisdiction, inasmuch as the crime
had been committed within its district, on the wharf of Cebu.

The court sentenced the defendant to five years' imprisonment, to pay a fine of
P10,000, with additional subsidiary imprisonment in case of insolvency, though not
to exceed one third of the principal penalty, and to the payment of the costs. It
further ordered the confiscation, in favor of the Insular Government, of the exhibits
presented in the case, and that, in the event of an appeal being taken or a bond given,
or when the sentenced should have been served, the defendant be not released from
custody, but turned over to the customs authorities for the purpose of the fulfillment
of the existing laws on immigration.

From this judgment, the defendant appealed to this court.lawphi1.net

The appeal having been heard, together with the allegations made therein by the
parties, it is found: That, although the mere possession of a thing of prohibited use in
these Islands, aboard a foreign vessel in transit, in any of their ports, does not, as a
general rule, constitute a crime triable by the courts of this country, on account of
such vessel being considered as an extension of its own nationality, the same rule
does not apply when the article, whose use is prohibited within the Philippine Islands,
in the present case a can of opium, is landed from the vessel upon Philippine soil,
G.R. No. L-13005 October 10, 1917
THE UNITED STATES, plaintiff-appellee,
vs.
AH SING, defendant-appellant.
Antonio Sanz for appellant.
Acting Attorney-General Paredes for appellee.
MALCOLM, J.:
This is an appeal from a judgment of the Court of First Instance of Cebu finding the
defendant guilty of a violation of section 4 of Act No. 2381 (the Opium Law), and
sentencing him to two years imprisonment, to pay a fine of P300 or to suffer
subsidiary imprisonment in case of insolvency, and to pay the costs.
The following facts are fully proven: The defendant is a subject of China employed as
a fireman on the steamship Shun Chang. The Shun Chang is a foreign steamer which
arrived at the port of Cebu on April 25, 1917, after a voyage direct from the port of
Saigon. The defendant bought eight cans of opium in Saigon, brought them on board
the steamship Shun Chang, and had them in his possession during the trip from
Saigon to Cebu. When the steamer anchored in the port of Cebu on April 25, 1917,
the authorities on making a search found the eight cans of opium above mentioned
hidden in the ashes below the boiler of the steamer's engine. The defendant
confessed that he was the owner of this opium, and that he had purchased it in
Saigon. He did not confess, however, as to his purpose in buying the opium. He did
not say that it was his intention to import the prohibited drug into the Philippine
Islands. No other evidence direct or indirect, to show that the intention of the
accused was to import illegally this opium into the Philippine Islands, was introduced.
Has the crime of illegal importation of opium into the Philippine Islands been proven?
Two decisions of this Court are cited in the judgment of the trial court, but with the
intimation that there exists inconsistently between the doctrines laid down in the
two cases. However, neither decision is directly a precedent on the facts before us.
In the case of United States vs. Look Chaw ([1910], 18 Phil., 573), in the opinion
handed down by the Chief Justice, it is found —
That, although the mere possession of a thing of prohibited use in these
Islands, aboard a foreign vessel in transit, in any of their ports, does not, as
a general rule, constitute a crime triable by the courts of this country, on
account of such vessel being considered as an extension of its own
nationality, the same rule does no apply when the article, whose use is
prohibited within the Philippine Islands, in the present case a can of opium,
is landed from the vessel upon Philippine soil, thus committing an open
violation of the laws of the land, with respect to which, as it is a violation of
the penal law in force at the place of the commission of the crime, only the
court established in the said place itself has competent jurisdiction, in the
absence of an agreement under an international treaty.1awphil.net
A marked difference between the facts in the Look Chaw case and the facts in the
present instance is readily observable. In the Look Chaw case, the charge case the
illegal possession and sale of opium — in the present case the charge as illegal
importation of opium; in the Look Chaw case the foreign vessel was in transit — in
the present case the foreign vessel was not in transit; in the Look Chaw case the
opium was landed from the vessel upon Philippine soil — in the present case of
United States vs. Jose ([1916], 34 Phil., 840), the main point, and the one on which
resolution turned, was that in a prosecution based on the illegal importation of opium
or other prohibited drug, the Government must prove, or offer evidence sufficient to
raise a presumption, that the vessel from which the drug is discharged came into
Philippine waters from a foreign country with the drug on board. In the Jose case, the
defendants were acquitted because it was not proved that the opium was imported
from a foreign country; in the present case there is no question but what the opium
came from Saigon to Cebu. However, in the opinion in the Jose case, we find the
following which may be obiter dicta, but which at least is interesting as showing the
view of the writer of the opinion:
The importation was complete, to say the least, when the ship carrying it
anchored in Subic Bay. It was not necessary that the opium discharged or
that it be taken from the ship. It was sufficient that the opium was brought
into the waters of the Philippine Islands on a boat destined for a Philippine
port and which subsequently anchored in a port of the Philippine Islands
with intent to discharge its cargo.
Resolving whatever doubt was exist as to the authority of the views just quoted, we
return to an examination of the applicable provisions of the law. It is to be noted that
section 4 of Act No. 2381 begins, "Any person who shall unlawfully import or bring
any prohibited drug into the Philippine Islands." "Import" and "bring" are
synonymous terms. The Federal Courts of the United States have held that the mere
act of going into a port, without breaking bulk, is prima facie evidence of importation.
(The Mary [U. S.], 16 Fed. Cas., 932, 933.) And again, the importation is not the
making entry of goods at the custom house, but merely the bringing them into port;
and the importation is complete before entry of the Custom House. (U. S. vs. Lyman
[U. S.], 26, Fed. Cas., 1024, 1028; Perots vs. U. S., 19 Fed. Cas., 258.) As applied to the
Opium Law, we expressly hold that any person unlawfully imports or brings any
prohibited drug into the Philippine Islands, when the prohibited drug is found under
this person's control on a vessel which has come direct from a foreign country and is
within the jurisdictional limits of the Philippine Islands. In such case, a person is guilty
of illegal importation of the drug unless contrary circumstances exist or the defense
proves otherwise. Applied to the facts herein, it would be absurb to think that the
accused was merely carrying opium back and forth between Saigon and Cebu for the
mere pleasure of so doing. It would likewise be impossible to conceive that the
accused needed so large an amount of opium for his personal use. No better
explanation being possible, the logical deduction is that the defendant intended this
opium to be brought into the Philippine Islands. We accordingly find that there was
illegal importation of opium from a foreign country into the Philippine Islands. To
anticipate any possible misunderstanding, let it be said that these statements do not
relate to foreign vessels in transit, a situation not present.

The defendant and appellant, having been proved guilty beyond a reasonable doubt
as charged and the sentence of the trial court being within the limits provided by law,
it results that the judgment must be affirmed with the costs of this instance against
the appellant. So ordered.

Arellano, C.J., Johnson, Carson, Araullo and Street, JJ., concur.

G.R. No. L-18924 October 19, 1922
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellant,
vs.
WONG CHENG (alias WONG CHUN), defendant-appellee.
Attorney-General Villa-Real for appellant.
Eduardo Gutierrez Repide for appellee.
ROMUALDEZ, J.:
In this appeal the Attorney-General urges the revocation of the order of the Court of
First Instance of Manila, sustaining the demurrer presented by the defendant to the
information that initiated this case and in which the appellee is accused of having
illegally smoked opium, aboard the merchant vessel Changsa of English nationality
while said vessel was anchored in Manila Bay two and a half miles from the shores of
the city.
The demurrer alleged lack of jurisdiction on the part of the lower court, which so held
and dismissed the case.
The question that presents itself for our consideration is whether such ruling is
erroneous or not; and it will or will not be erroneous according as said court has or
has no jurisdiction over said offense.
The point at issue is whether the courts of the Philippines have jurisdiction over
crime, like the one herein involved, committed aboard merchant vessels anchored in
our jurisdiction waters. 1awph!l.net
There are two fundamental rules on this particular matter in connection with
International Law; to wit, the French rule, according to which crimes committed
aboard a foreign merchant vessels should not be prosecuted in the courts of the
country within whose territorial jurisdiction they were committed, unless their
commission affects the peace and security of the territory; and the English rule, based
on the territorial principle and followed in the United States, according to which,
crimes perpetrated under such circumstances are in general triable in the courts of
the country within territory they were committed. Of this two rules, it is the last one
that obtains in this jurisdiction, because at present the theories and jurisprudence
prevailing in the United States on this matter are authority in the Philippines which is
now a territory of the United States.
In the cases of The Schooner Exchange vs. M'Faddon and Others (7 Cranch [U. S.],
116), Chief Justice Marshall said:
. . . When merchant vessels enter for the purposes of trade, it would be
obviously inconvenient and dangerous to society, and would subject the
laws to continual infraction, and the government to degradation, if such
individuals or merchants did not owe temporary and local allegiance, and
were not amenable to the jurisdiction of the country. . . .
In United States vs. Bull (15 Phil., 7), this court held:
. . . No court of the Philippine Islands had jurisdiction over an offense or
crime committed on the high seas or within the territorial waters of any
other country, but when she came within three miles of a line drawn from
the headlands, which embrace the entrance to Manila Bay, she was within
territorial waters, and a new set of principles became applicable. (Wheaton,
International Law [Dana ed.], p. 255, note 105; Bonfils, Le Droit Int., secs.
490 et seq.; Latour, La Mer Ter., ch. 1.) The ship and her crew were then
subject to the jurisdiction of the territorial sovereign subject to such
limitations as have been conceded by that sovereignty through the proper
political agency. . . .
It is true that in certain cases the comity of nations is observed, as in Mali and
Wildenhus vs. Keeper of the Common Jail (120 U.., 1), wherein it was said that:
. . . The principle which governs the whole matter is this: Disorder which
disturb only the peace of the ship or those on board are to be dealt with
exclusively by the sovereignty of the home of the ship, but those which
disturb the public peace may be suppressed, and, if need be, the offenders
punished by the proper authorities of the local jurisdiction. It may not be
easy at all times to determine which of the two jurisdictions a particular act
of disorder belongs. Much will undoubtedly depend on the attending
circumstances of the particular case, but all must concede that felonious
homicide is a subject for the local jurisdiction, and that if the proper
authorities are proceeding with the case in the regular way the consul has
no right to interfere to prevent it.
Hence in United States vs. Look Chaw (18 Phil., 573), this court held that:
Although the mere possession of an article of prohibited use in the
Philippine Islands, aboard a foreign vessel in transit in any local port, does
not, as a general rule, constitute a crime triable by the courts of the Islands,
such vessels being considered as an extension of its own nationality, the
 same rule does not apply when the article, the use of which is prohibited in
the Islands, is landed from the vessels upon Philippine soil; in such a case an
open violation of the laws of the land is committed with respect to which,
as it is a violation of the penal law in force at the place of the commission of
the crime, no court other than that established in the said place has
jurisdiction of the offense, in the absence of an agreement under an
international treaty.
As to whether the United States has ever consented by treaty or otherwise to
renouncing such jurisdiction or a part thereof, we find nothing to this effect so far as
England is concerned, to which nation the ship where the crime in question was
committed belongs. Besides, in his work "Treaties, Conventions, etc.," volume 1, page
625, Malloy says the following:
are impotent to lay hands on him, is simply subversive of public order. It
requires no unusual stretch of the imagination to conceive that a foreign
ship may come into the port of Manila and allow or solicit Chinese residents
to smoke opium on board.
The order appealed from is revoked and the cause ordered remanded to the court of
origin for further proceedings in accordance with law, without special findings as to
costs. So ordered.
Araullo, C.J., Street, Malcolm, Avanceña, Villamor, Ostrand and Johns, JJ., concur.

There shall be between the territories of the United States of America, and
all the territories of His Britanic Majesty in Europe, a reciprocal liberty of
commerce. The inhabitants of the two countries, respectively, shall have
liberty freely and securely to come with their ships and cargoes to all such
places, ports and rivers, in the territories aforesaid, to which other
foreigners are permitted to come, to enter into the same, and to remain and
reside in any parts of the said territories, respectively; also to hire and
occupy houses and warehouses for the purposes of their commerce; and,
generally, the merchants and traders of each nation respectively shall enjoy
the most complete protection and security for their commerce, but subject
always to the laws and statutes of the two countries, respectively. (Art. 1,
Commerce and Navigation Convention.)

We have seen that the mere possession of opium aboard a foreign vessel in transit
was held by this court not triable by or courts, because it being the primary object of
our Opium Law to protect the inhabitants of the Philippines against the disastrous
effects entailed by the use of this drug, its mere possession in such a ship, without
being used in our territory, does not being about in the said territory those effects
that our statute contemplates avoiding. Hence such a mere possession is not
considered a disturbance of the public order.

But to smoke opium within our territorial limits, even though aboard a foreign
merchant ship, is certainly a breach of the public order here established, because it
causes such drug to produce its pernicious effects within our territory. It seriously
contravenes the purpose that our Legislature has in mind in enacting the aforesaid
repressive statute. Moreover, as the Attorney-General aptly observes:

. . . The idea of a person smoking opium securely on board a foreign vessel

at anchor in the port of Manila in open defiance of the local authorities, who
G.R. No. 17958 February 27, 1922
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
LOL-LO and SARAW, defendants-appellants.
Thos. D. Aitken for appellants.
Acting Attorney-General Tuason for appellee.
MALCOLM, J.:
The days when pirates roamed the seas, when picturesque buccaneers like Captain
Avery and Captain Kidd and Bartholomew Roberts gripped the imagination, when
grostesque brutes like Blackbeard flourished, seem far away in the pages of history
and romance. Nevertheless, the record before us tells a tale of twentieth century
piracy in the south seas, but stripped of all touches of chivalry or of generosity, so as
to present a horrible case of rapine and near murder.
On or about June 30, 1920, two boats left matuta, a Dutch possession, for Peta,
another Dutch possession. In one of the boats was one individual, a Dutch subject,
and in the other boat eleven men, women, and children, likewise subjects of Holland.
After a number of days of navigation, at about 7 o'clock in the evening, the second
boat arrived between the Islands of Buang and Bukid in the Dutch East Indies. There
the boat was surrounded by six vintas manned by twenty-four Moros all armed. The
Moros first asked for food, but once on the Dutch boat, too for themselves all of the
cargo, attacked some of the men, and brutally violated two of the women by methods
too horrible to the described. All of the persons on the Dutch boat, with the exception
of the two young women, were again placed on it and holes were made in it, the idea
that it would submerge, although as a matter of fact, these people, after eleven days
of hardship and privation, were succored violating them, the Moros finally arrived at
Maruro, a Dutch possession. Two of the Moro marauder were Lol-lo, who also raped
one of the women, and Saraw. At Maruro the two women were able to escape.
Lol-lo and Saraw later returned to their home in South Ubian, Tawi-Tawi, Sulu,
Philippine Islands. There they were arrested and were charged in the Court of First
Instance of Sulu with the crime of piracy. A demurrer was interposed by counsel de
officio for the Moros, based on the grounds that the offense charged was not within
the jurisdiction of the Court of First Instance, nor of any court of the Philippine
Islands, and that the facts did not constitute a public offense, under the laws in force
in the Philippine Islands. After the demurrer was overruled by the trial judge, trial
was had, and a judgment was rendered finding the two defendants guilty and
sentencing each of them to life imprisonment (cadena perpetua), to return together
with Kinawalang and Maulanis, defendants in another case, to the offended parties,
the thirty-nine sacks of copras which had been robbed, or to indemnify them in the
amount of 924 rupees, and to pay a one-half part of the costs.
A very learned and exhaustive brief has been filed in this court by the attorney de
officio. By a process of elimination, however, certain questions can be quickly
disposed of.
The proven facts are not disputed. All of the elements of the crime of piracy are
present. Piracy is robbery or forcible depredation on the high seas, without lawful
authority and done animo furandi, and in the spirit and intention of universal
hostility.
It cannot be contended with any degree of force as was done in the lover court and
as is again done in this court, that the Court of First Instance was without jurisdiction
of the case. Pirates are in law hostes humani generis. Piracy is a crime not against any
particular state but against all mankind. It may be punished in the competent tribunal
of any country where the offender may be found or into which he may be carried.
The jurisdiction of piracy unlike all other crimes has no territorial limits. As it is against
all so may it be punished by all. Nor does it matter that the crime was committed
within the jurisdictional 3-mile limit of a foreign state, "for those limits, though
neutral to war, are not neutral to crimes." (U.S. vs. Furlong [1820], 5 Wheat., 184.)
The most serious question which is squarely presented to this court for decision for
the first time is whether or not the provisions of the Penal Code dealing with the
crime of piracy are still in force. Article 153 to 156 of the Penal Code reads as follows:
ART. 153. The crime of piracy committed against Spaniards, or the subjects
of another nation not at war with Spain, shall be punished with a penalty
ranging from cadena temporal to cadena perpetua.
If the crime be committed against nonbelligerent subjects of another nation
at war with Spain, it shall be punished with the penalty of presidio mayor.
ART. 154. Those who commit the crimes referred to in the first paragraph of
the next preceding article shall suffer the penalty of cadena perpetua or
death, and those who commit the crimes referred to in the second
paragraph of the same article, from cadena temporal to cadena perpetua:
1. Whenever they have seized some vessel by boarding or firing
upon the same.
 2. Whenever the crime is accompanied by murder, homicide, or by
any of the physical injuries specified in articles four hundred and
fourteen and four hundred and fifteen and in paragraphs one and
two of article four hundred and sixteen.
3. Whenever it is accompanied by any of the offenses against
chastity specified in Chapter II, Title IX, of this book.
4. Whenever the pirates have abandoned any persons without
means of saving themselves.
5. In every case, the captain or skipper of the pirates.
ART. 155. With respect to the provisions of this title, as well as all others of
this code, when Spain is mentioned it shall be understood as including any
part of the national territory.
ART. 156. For the purpose of applying the provisions of this code, every
person, who, according to the Constitution of the Monarchy, has the status
of a Spaniard shall be considered as such.
The general rules of public law recognized and acted on by the United States relating
to the effect of a transfer of territory from another State to the United States are
well-known. The political law of the former sovereignty is necessarily changed. The
municipal law in so far as it is consistent with the Constitution, the laws of the United
States, or the characteristics and institutions of the government, remains in force. As
a corollary to the main rules, laws subsisting at the time of transfer, designed to
secure good order and peace in the community, which are strictly of a municipal
character, continue until by direct action of the new government they are altered or
repealed. (Chicago, Rock Islands, etc., R. Co. vs. McGlinn [1885], 114 U.S., 542.)
These principles of the public law were given specific application to the Philippines
by the Instructions of President McKinley of May 19, 1898, to General Wesley Meritt,
the Commanding General of the Army of Occupation in the Philippines, when he said:
Though the powers of the military occupant are absolute and supreme, and
immediately operate upon the political condition of the inhabitants, the
municipal laws of the conquered territory, such as affect private rights of
person and property, and provide for the punishment of crime, are
considered as continuing in force, so far as they are compatible with the new
order of things, until they are suspended or superseded by the occupying
belligerent; and practice they are not usually abrogated, but are allowed to
remain in force, and to be administered by the ordinary tribunals,
substantially as they were before the occupations. This enlightened practice
is so far as possible, to be adhered to on the present occasion. (Official
Gazette, Preliminary Number, Jan. 1, 1903, p. 1. See also General Merritt
Proclamation of August 14, 1898.)
It cannot admit of doubt that the articles of the Spanish Penal Code dealing with
piracy were meant to include the Philippine Islands. Article 156 of the Penal Code in
relation to article 1 of the Constitution of the Spanish Monarchy, would also make
the provisions of the Code applicable not only to Spaniards but to Filipinos.
The opinion of Grotius was that piracy by the law of nations is the same thing as piracy
by the civil law, and he has never been disputed. The specific provisions of the Penal
Code are similar in tenor to statutory provisions elsewhere and to the concepts of
the public law. This must necessarily be so, considering that the Penal Code finds its
inspiration in this respect in the Novelas, the Partidas, and the Novisima
Recopilacion.
The Constitution of the United States declares that the Congress shall have the power
to define and punish piracies and felonies committed on the high seas, and offenses
against the law of nations. (U.S. Const. Art. I, sec. 8, cl. 10.) The Congress, in putting
on the statute books the necessary ancillary legislation, provided that whoever, on
the high seas, commits the crime of piracy as defined by the law of nations, and is
afterwards brought into or found in the United States, shall be imprisoned for life.
(U.S. Crim. Code, sec. 290; penalty formerly death: U.S. Rev. Stat., sec. 5368.) The
framers of the Constitution and the members of Congress were content to let a
definition of piracy rest on its universal conception under the law of nations.
It is evident that the provisions of the Penal Code now in force in the Philippines
relating to piracy are not inconsistent with the corresponding provisions in force in
the United States.
By the Treaty of Paris, Spain ceded the Philippine Islands to the United States. A
logical construction of articles of the Penal Code, like the articles dealing with the
crime of piracy, would be that wherever "Spain" is mentioned, it should be
substituted by the words "United States" and wherever "Spaniards" are mentioned,
the word should be substituted by the expression "citizens of the United States and
citizens of the Philippine Islands." somewhat similar reasoning led this court in the
case of United States vs. Smith ([1919], 39 Phil., 533) to give to the word "authority"
as found in the Penal Code a limited meaning, which would no longer comprehend
all religious, military, and civil officers, but only public officers in the Government of
the Philippine Islands.
Under the construction above indicated, article 153 of the Penal Code would read as
follows:
The crime of piracy committed against citizens of the United States and
citizens of the Philippine Islands, or the subjects of another nation not at war
with the United States, shall be punished with a penalty ranging from cadena
temporal to cadena perpetua.
the Twenty-sixth Judicial District. The two appellants together with Kinawalang and
Maulanis, defendants in another case, shall indemnify jointly and severally the
offended parties in the equivalent of 924 rupees, and shall pay a one-half part of the
costs of both instances. So ordered.
Araullo, C.J., Johnson, Avanceña, Villamor, Ostrand, Johns and Romualdez, JJ., concur.

If the crime be committed against nonbelligerent subjects of another nation

at war with the United States, it shall be punished with the penalty of
presidio mayor.

We hold those provisions of the Penal code dealing with the crime of piracy, notably
articles 153 and 154, to be still in force in the Philippines.

The crime falls under the first paragraph of article 153 of the Penal Code in relation
to article 154. There are present at least two of the circumstances named in the last
cited article as authorizing either cadena perpetua or death. The crime of piracy was
accompanied by (1) an offense against chastity and (2) the abandonment of persons
without apparent means of saving themselves. It is, therefore, only necessary for us
to determine as to whether the penalty of cadena perpetua or death should be
imposed. In this connection, the trial court, finding present the one aggravating
circumstance of nocturnity, and compensating the same by the one mitigating
circumstance of lack of instruction provided by article 11, as amended, of the Penal
Code, sentenced the accused to life imprisonment. At least three aggravating
circumstances, that the wrong done in the commission of the crime was deliberately
augmented by causing other wrongs not necessary for its commission, that
advantage was taken of superior strength, and that means were employed which
added ignominy to the natural effects of the act, must also be taken into
consideration in fixing the penalty. Considering, therefore, the number and
importance of the qualifying and aggravating circumstances here present, which
cannot be offset by the sole mitigating circumstance of lack of instruction, and the
horrible nature of the crime committed, it becomes our duty to impose capital
punishment.

The vote upon the sentence is unanimous with regard to the propriety of the
imposition of the death penalty upon the defendant and appellant Lo-lo (the accused
who raped on of the women), but is not unanimous with regard to the court, Mr.
Justice Romualdez, registers his nonconformity. In accordance with provisions of Act
No. 2726, it results, therefore, that the judgment of the trial court as to the defendant
and appellant Saraw is affirmed, and is reversed as to the defendant and appellant
Lol-lo, who is found guilty of the crime of piracy and is sentenced therefor to be hung
until dead, at such time and place as shall be fixed by the judge of first instance of
G.R. No. 123918 December 9, 1999
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
AUGUSTO LORETO RINGOR, JR., accused-appellant.
PURISIMA, J.:
For automatic review is the Decision 1 dated November 13, 1995 of Branch 6 of the
Regional Trial Court in Baguio City, finding accused-appellant Augusto Loreto Ringor,
Jr. guilty of the crime of murder and sentencing him to suffer the supreme penalty
death in Criminal Case No. 13102-R, also guilty of illegal possession of firearms under
P.D. No. 1866 in Criminal Case No. 13100-R for and disposing thus:
WHEREFORE, Judgment is rendered as follows:
1. In Criminal Case No. 13102, the Court Finds (sic) the accused
Augusto Loreto Ringor Guilty beyond reasonable doubt of the
crime of Murder defined and penalized under Article 248 of the
Revised Penal Code as amended by Section 6, RA 7659, qualified by
Treachery and as further qualified by the use of an unlicensed
firearm and hereby sentences him to suffer the supreme penalty of
Death; to indemnify the heirs of deceased Marcelino Florida, Jr.,
the sum of P50,000.00 for his death and the sum of P100,000.00 as
Moral damages for his death, both indemnification being without
subsidiary imprisonment in case of insolvency and to pay the costs.
2. In Criminal Case No. 13100-R, the Court Finds (sic) accused
Augusto Loreto Ringor Guilty beyond reasonable doubt of the
offense of Violation of Section 1 PD 1866 (Illegal Possession of
firearm and ammunitions) as charged in the Information and
hereby sentences him, applying the Indeterminate Sentence Law,
to an imprisonment ranging from 17 years 4 months and 1 day as
Minimum to 20 years as Maximum and to pay the costs.
The subject gun, caliber .38 (Paltik) bearing Serial Number 853169
(Exh. A) being the subject of the offense is hereby declared
confiscated and forfeited in favor of the State.
The accused Augusto Loreto Ringor is entitled to be credited in the
service of his sentence four fifth (4/5) of his preventive
imprisonment in accordance with Article 29 of the Revised Penal
Code.
SO ORDERED.2
Filed on June 28, 1994, the Informations against accused-appellant, alleges:
In Criminal Case No. 13102-R
That on or about the 23rd day of June, 1994, in the City of Baguio,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, being then armed with a Caliber 38
handgun paltick with Serial Number 853169 and with intent to kill,
did then and there willfully, unlawfully, and feloniously attack,
assault and shoot MARCELINO BUSLAY FLORIDA, JR. thereby
inflicting upon the latter hypovolemic shock secondary to massive
hemorrhage; multiple gunshot wounds of the liver, stomach, small
intestine and mesentric blood vessels, which injuries directly
caused his death.
That the qualifying circumstance of TREACHERY attended the
commission of the crime when the accused suddenly attacked
victim and shot him several times at the back, with the use of a
handgun, thus employing means, methods of forms in the
execution thereof which tend directly and specially to insure its
execution, without risk to himself arising from the defense which
the offended party might make.
CONTRARY TO LAW.3
and in Criminal Case No. 13100-R
That on or about the 23rd day of June, 1994, in the City of Baguio,
Philippines, and within the jurisdiction of this honorable Court, the
above-named accused, did then and there willfully, unlawfully and
feloniously possess and carry outside of his residence, a firearm,
Caliber .38 revolver (Paltik) bearing Serial Number 853169, without
any legal authority or permit from any government official or
authority concerned, in violation of the above cited provision of
law.
 CONTRARY TO LAW. 4
With the accused-appellant, assisted by counsel, entering a plea of Not
Guilty upon arraignment, a joint trial of the two cases ensued.
The inculpatory facts and circumstances sued upon are succinctly summarized in the
Appellee's Brief as follows:
On June 23, 1994, at around 6:00 P.M. (sic), Fely Batanes, a waitress
at People's Restaurant located at Kalantiao St., Baguio City, saw
appellant Ringor and his two companions enter the restaurant.
(Tsn, December 8, 1994, p. 4). After seating themselves, the group
ordered a bottle of gin (ibid., p. 6). Minutes later, appellant
approached one of the tables where Florida, the restaurant's cook
was drinking beer. Without any warning, appellant pulled Florida's
hair and poked a knife on the latter's throat. Florida stood up and
pleaded with appellant not to harm him (ibid., p. 7). Appellant
relented and released his grip on Florida. Thereafter, he left the
restaurant together with his companions. However, a few minutes
latter he was back (ibid, p. 8).
Appellant brandished a gun and menacingly entered the
restaurant. Not encountering any resistance, he thus proceeded to
the kitchen where Florida worked (ibid). Stealthily approaching
Florida from behind, appellant fired six successive shots at Florida
who fell down (ibid., p. 9). His evil deed accomplished, appellant
left the kitchen and fled (ibid).
Appellant was chased by a man who while running, shouted at
onlookers that the person he was running after was armed and had
just killed somebody. Alerted, SPO2 Fernandez, who was then in
the vicinity, went into action and nabbed appellant. He frisked
appellant and recovered from him a Paltik revolver, caliber. 38,
with Serial Number 853169 (Exh. A). He checked the revolver's
cylinder and found six empty cartridges (Exhs. T to T-6). He noted
that it smelled of gunpowder. He and PO1 Ortega turned over
appellant and the confiscated firearm to the Investigation Division
of the Baguio Police and then executed a Joint Affidavit of Arrest
(Exhibit O). On the same night, Fely Batanes gave her sworn
statement (Exhibit E) to the Baguio Police wherein she positively
identified appellant as the assailant.
xxx xxx xxx
NBI Forensic Chemist Ms. Carina Javier found both hands of
appellant positive for nitrates as stated in her Chemist Report No.
C-94-22. She conducted a microscopic chemical examination on the
subject firearm and found that the gun was fired within one week
prior to June 27, 1994.
Elmer Nelson Piedad, Ballistician of the Firearm Investigation
Division, NBI, Manila, tested and concluded that the slugs
recovered from the victim were fired from appellant's firearm.
Upon verification from the Firearms Explosive division, Camp
Crame, Quezon City, it was found that appellant is not a licensed
firearm holder nor, was the subject firearm duly registered with the
said office (Exh. A). 5
The autopsy conducted by Dr. John Tinoyan on the cadaver of the deceased yielded
a Necropsy Report, which states:
POST MORTEM FINDINGS
Body of a male, 1.66 m. height, medium built, with complete rigor
mortis, lividity well developed on the dependent parts, cloudy
cornea and dilated pupils with very pale papebral conjunctive.
Gunshot wounds: GSW no. 1 measuring 10 x 10 mm. serrated
edges, positive powder burns located at the left mid clavicular line,
posterior, 2 inches below the shoulder. It was directed downward
towards the mid-body, penetrating the skin. (sic) soft tissue, middle
3rd of the 3rd rib, the upper and lower lobes of the left lung to the
diaphragm, through and through the stomach, lacerating the
superior mesentric vessels, perforating the small intestine then
lodged at the superior surface of the urinary bladder (slug was
recovered marked no. 1)
GSW no. 2 measures 8 mm. diameter, positive powder burns,
located on the right shoulder near the s. joint posteriorly,
penetrating the skin, soft tissue, then lodged at the surface of the
fractured surgical neck of the humorous (sic) (slug recovered).
Marked no. 2.
GSW no. 3 measures 8 mm. Diameter, positive powder burns,
located on the right shoulder posteriorly near the joint penetrating
the skin, soft tissues, and the head of the Humorous, (sic) then
dislodged form the same entry point.
 GSW no. 4 measures 8 x 10 mm, oval shaped, with abrasion
superiorly located at the anterior left parasternal line at the level
of the 6th ICS. It was directed downward towards the posterior of
the body, penetrating the skin, soft tissue, the left lobe of the liver
with partial avulsion, then perforating the stomach through and
though the duodenum lumbar muscle then lodged underneath the
skin, (1) paravertebral, level of L3 (slug recovered marked no. 4).
CAUSE OF DEATH:
HYPOVOLEMIC SHOCK SECONDARY TO MASSIVE HEMORRHAGE;
MULTIPLE GUNSHOT WOUND(S) OF THE LIVER, STOMACH, SMALL
INTESTINE AND MESENTRIC BLOOD VESSELS. Multiple Gunshot
Wound(s) of the body. 6
Accused-appellant admitted shooting the victim but theorized that he acted in self-
defense. As embodied in the Appellant's Brief, the defense version runs thus:
3.01 On June 23, 1994, at a little after five o'clock in the afternoon,
appellant, together with two (2) other companions, entered the
People's Restaurant in Baguio City to order drinks. They sat at a
table next to another then occupied by Marcelino B. Florida, Jr.
(Florida) and a woman companion (TSN, Testimony of Augusto
Loreto G. Ringor, Jr., May 4, 1995, pp. 3-6).
3. 02 Soon after receiving their orders, appellant's companion,
Ramon Fernandez, stood up and approached Florida to inquire
about his (Fernandez') brother, Cesar. Florida angrily responded to
the query and said, "Putang ina ninyo! anong pakialam ko diyan!"
3.03 A quarrel thereafter ensued between Fernandez and Florida
prompting the appellant to intervene and pacify Fernandez. When
Fernandez drew out a gun from his waist, appellant immediately
seized the same directing his friend to leave the restaurant before
he started hurting other people with his gun. No sooner had
Fernandez stepped out, however, Florida, armed with a bolo, came
charging in from the kitchen and headed towards the appellant.
(Ibid., pp. 6-7)
3.04 Surprised, appellant shot Florida with the gun he was holding
just as the latter was about to hit him with the bolo. Thereafter,
appellant put the gun on the table and walked out of the
restaurant. Once already outside the restaurant, appellant's other
companion, Virgilio, followed him and handed to him the gun he
(appellant) left at the table. He then proceeded to surrender the
gun and report the incident at the nearest police station. (Ibid., pp.
8-9)
3.05 Before appellant could reach the police station, however,
appellant was already arrested by off-duty policeman who brought
him back to the People's Restaurant. Appellant was thereafter
incarcerated at the Baguio City Police Station. (Ibid., pp. 10-12) 7
On November 13, 1995, the trial court handed down decision under automatic
review. Accused-appellant contends that:
I
THE TRIAL COURT ERRED IN CONVICTING THE APPELLANT FOR
SIMPLE ILLEGAL POSSESSION OF FIREARMS AND SENTENCING HIM
TO SUFFER AN INDETERMINATE SENTENCE OF 17 YEARS AND 1 DAY
AS MINIMUM TO 20 YEARS AS MAXIMUM.
II
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED OF
MURDER.
III
THE TRIAL COURT SERIOUSLY ERRED IN SENTENCING THE ACCUSED
TO DEATH ON THE GROUNDS THAT: (i) THE CHARGE OF MURDER
WAS NOT PROVED BY THE PROSECUTION; AND (ii)
ASSUMING ARGUENDO THAT MURDER WAS COMMITTED BY
APPELLANT, THE APPROPRIATE PENALTY FOR THE OFFENSE
IS RECLUSION PERPETUA THERE BEING NO AGGRAVATING
CIRCUMSTANCE TO RAISE THE PENALTY TO DEATH. 8
Well-settled is the rule that in interposing self-defense, the offender admits
authorship of the killing. The onus probandi is thus shifted to him to prove the
elements of self-defense and that the killing was justified; 9 otherwise, having
admitted the killing, conviction is inescapable. Concomitantly, he must rely on the
strength of his own evidence and not on the weakness of the prosecution's
evidence. 10
For self-defense to prosper, it must be established that: (1) there was unlawful
aggression by the victim; (2) that the means employed to prevent or repel such
aggression was reasonable; and (3) that there was lack of sufficient provocation on
the part of person defending himself. 11
In the case at bar, accused-appellant failed to prove the element of unlawful
aggression. The allegation that the victim allegedly went out of the kitchen armed
with a bolo, and was about to hack him (accused-appellant) who was then at an
almost prone lying position on the table he was occupying, 12 is a self-serving and
unconvincing statement which did not anyway constitute the requisite quantum of
proof for unlawful aggression. Prosecution witness Fely Batanes, a waitress in the
restaurant where the shooting incident occurred, was firm in her declaration that the
victim was in the kitchen unarmed 13 when the accused-appellant shot him. The
victim had no weapon or bolo. He was neither threatening to attack nor in any
manner manifesting any aggressive act which could have imperiled accused-
appellant's safety and well-being.
No improper motive having been shown on the part of Fely Batanes to testify falsely
against accused-appellant or to implicate him in the commission of the crime, the
logical conclusion is that there was no such improper motive and her testimony is
worthy of full faith and credit. 14
What is more, the testimony of Fely Batanes is buttressed by the fact that
immediately after the incident, the body of the victim was found lying in the kitchen
and not outside; thus weakening further the theory of accused-appellant that he shot
the victim while they were at the dining area. 15
Then too, the nature, location and number of gunshot wounds inflicted on the
deceased belie accused-appellant's theory of self-defense. 16 The deceased sustained
three gun shot wounds on the back and one in front. Dr. John Tinoyan, who
conducted the autopsy on the cadaver of the victim, testified that the gunshot wound
on the frontal portion of the victim's body showed a downward trajectory of the
bullet on his chest, penetrating the liver, perforating the stomach down to the small
intestine, and then lodged underneath the skin. 17 Verily, such finding negates the
claim of accused-appellant that he shot the victim while he was at an almost prone
lying position and the victim was standing in front of him about to strike with a bolo.
If this were true, the trajectory of the bullet should have been upward or better still,
it should have been at the level at which the gun was fired while he (accused-
appellant) was in a prone lying position.
Rather telling are the three gunshot wounds on the back of the victim, which wounds
showed traces of gunpowder which, according to Dr. Tinoyan, indicated that the
weapon used was at a distance of less than one meter. 18Evidently, accused-appellant
stealthily approached the victim from behind and fired at him six successive shots,
four of which hit him, to ensure his death. 19 If he shot the victim merely to defend
himself, there would have been no cause for accused-appellant to pump several
bullets into the body of the victim.
In light of the foregoing, the imputation of unlawful aggression on the part of the
victim cannot be believed. Absent the element of unlawful aggression by the
deceased, there can be no self-defense, complete or incomplete. If there was no
unlawful aggression, there was nothing to prevent or repel and the second and third
requisites of self-defense would have no basis. 20
The Court a quo properly appreciated the aggravating circumstance of treachery
which qualified the crime to murder. It was clearly established that the accused-
appellant fired six successive shots on the victim, suddenly, without warning, and
from behind, giving the victim no chance to flee or to prepare for his defense or to
put up the least resistance to such sudden assault. There is treachery when the
means, manner or method of attack employed by the offender offered no risk to
himself from any defensive or retaliatory act which the victim might have taken. 21
All things studiedly considered and viewed in proper perspective, the mind of the
Court can rest easy on a finding that accused-appellant Augusto Loreto Ringor, Jr. is
guilty beyond reasonable doubt of the crime of murder, and did not act in self-
defense.
Art. 248 of the Revised Penal Code, as amended, prescribes the penalty of reclusion
perpetua to death for the crime of murder. When, as in this case, neither aggravating
nor mitigating circumstance is attendant, the lesser penalty of reclusion perpetua has
to be applied, 22 in accordance with Article 63(2) of the Revised Penal Code.
With respect to the conviction of accused-appellant for illegal possession of firearms
under P.D. No. 1866, it was held in the case of People vs.
Molina 23 and reiterated in the recent case of People vs. Ronaldo Valdez, 24 that in
cases where murder or homicide is committed with the use of an unlicensed firearm,
there can be no separate conviction for the crime of illegal possession of firearms
under P.D. No. 1866 in view of the amendments introduced by Republic Act No. 8294.
Thereunder, the use of unlicensed firearm in murder or homicide is simply considered
as an aggravating circumstance in the murder or homicide and no longer as a
separate offense. Furthermore, the penalty for illegal possession of firearms shall be
imposed provided that no other crime is committed. 25 In other words, where murder
or homicide was committed, the penalty for illegal possession of firearms is no longer
imposable since it becomes merely a special aggravating circumstance. 26
It bears stressing, however, that the dismissal of the present case for illegal
possession of firearm should not be misinterpreted to mean that there can no longer
be any prosecution for the offense of illegal possession of firearms. In general, all
pending cases involving illegal possession of firearms should continue to be
prosecuted and tried if no other crimes expressly provided in R. A. No. 8294 are
involved (murder or homicide, under Section 1, and rebellion, insurrection, sedition
or attempted coup d' etat, under Section 3). 27
Pursuant to Article 22 of the Revised Penal Code, where the new law is favorable to
the accused, it has to be applied retroactively. Thus, insofar as it spares accused-
appellant a separate conviction for illegal possession of firearms, Republic Act No.
8294 has to be given retroactive application in Criminal Case No. 13100-R.
On the matter of the aggravating circumstance of "use of unlicensed firearm" in the
commission of murder or homicide, the trial court erred in appreciating the same to
qualify to death the penalty for the murder committed by accused-appellant. It
should be noted that at the time accused-appellant perpetrated the offense, the
unlicensed character of a firearm used in taking the life of another was not yet an
aggravating circumstance in homicide or murder; to wit:
A law may, of course, be enacted making the use of an unlicensed
firearm as a qualifying circumstance. 28 (Emphasis supplied)
Thus, before R.A. No. 8294 (which took effect on July 6, 1997) made the use of
unlicensed firearm as an aggravating circumstance in murder or homicide, the
penalty for the murder committed by accused-appellant on June 23, 1994 was not
death, as erroneously imposed by the trial court. There was yet no such aggravating
circumstance of use of unlicensed firearm to raise the penalty for murder
from reclusion perpetua to death, at the time of commission of the crime.
The amendatory law making the "use of an unlicensed firearm" as an aggravating
circumstance in murder or homicide, cannot be applied here because the said
provision of R.A. No. 8294 is not favorable to accused-appellant, lest it becomes an ex
post facto law. 29
WHEREFORE, the decision in Criminal Case No. 13102-R is AFFIRMED with the
modification that accused-appellant Augusto Loreto Ringor, Jr. is hereby sentenced
to suffer the penalty of reclusion perpetua. It is understood that the civil liabilities
imposed below are UPHELD.

Neither is the second paragraph of Section 1 meant to punish Criminal Case No. 13100-R instituted pursuant to Presidential Decree No. 1866 is
homicide or murder with death if either crime is committed with DISMISSED. No pronouncement as to costs. SO ORDERED.
the use of an unlicensed firearm, i.e., to consider such use merely
as a qualifying circumstance and not as an offense. That could not Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing, Pardo, Buena,
have been the intention of the lawmaker because the term Gonzaga-Reyes, Ynares-Santiago and De Leon, Jr., JJ., concur.
"penalty" in the subject provision is obviously meant to be the
penalty for illegal possession of firearm and not the penalty for for
Davide, Jr., C.J. and Panganiban, J., in the result.
homicide or murder. We explicitly stated in Tac-an:

There is no law which renders the use of an

unlicensed firearm as an aggravating
circumstances in homicide or murder. Under an
information charging homicide or muder,the fact
that the death weapon was an unlicensed firearm
cannot be used to increase the penalty of the
second offense of homicide or murder to
death (or reclusion perpetua under 1987
Constitution). The essential point is that the
unlicensed character or condition of the
instrument used in destroying human life or
committing some other crime, is not included on
the inventory of aggravating circumstances set
out in Article 14 of the Revised Penal Code.
G.R. No. L-30026 January 30, 1971 since then imprisoned by virtue of the above convictions. Each of them has served
more than 13 years.5
MARIO GUMABON, BLAS BAGOLBAGOL, GAUDENCIO AGAPITO, EPIFANIO PADUA
and PATERNO PALMARES, petitioners, Subsequently, in People v. Hernandez,6 as above noted, this Court ruled that the
vs. information against the accused in that case for rebellion complexed with murder,
THE DIRECTOR OF THE BUREAU OF PRISONS, respondent. arson and robbery was not warranted under Article 134 of the Revised Penal Code,
there being no such complex offense.7 In the recently-decided case of People vs.
Jose W. Diokno for petitioners. Lava,8 we expressly reaffirmed the ruling in the Hernandez case rejecting the plea of
the Solicitor General for the abandonment of such doctrine. It is the contention of
Office of the Solicitor General Felix V. Makasiar, Assistant Solicitor General Antonio A. each of the petitioners that he has served, in the light of the above, more than the
Torres and Solicitor Eduardo C. Abaya for respondent. maximum penalty that could have been imposed upon him. He is thus entitled to
freedom, his continued detention being illegal.9

The fear that the Pomeroy ruling stands as an obstacle to their release on a habeas
corpus proceeding prompted petitioners, as had been mentioned, to ask that it be
FERNANDO, J.:
appraised anew and, if necessary, discarded. We can resolve the present petition
without doing so. The plea there made was unconvincing, there being a failure to
Habeas corpus, the great writ of liberty, is relied upon by petitioners, five in number,
invoke the contentions now pressed vigorously by their counsel, Attorney Jose W.
for their release from imprisonment. Meted out life terms for the complex crime of
Diokno, as to the existence of a denial of a constitutional right that would suffice to
rebellion with murder and other crimes, they would invoke the People v.
raise a serious jurisdictional question and the retroactive effect to be given a judicial
Hernandez1 doctrine, negating the existence of such an offense, a ruling that
decision favorable to one already sentenced to a final judgment under Art. 22 of the
unfortunately for them was not handed down until after their convictions had
Revised Penal Code. To repeat, these two grounds carry weight. We have to grant
become final. Nor is this the first instance, a proceeding of this character was
this petition.
instituted, as in Pomeroy v. Director of Prisons,2 likewise a petition for habeas corpus,
a similar question was presented. The answer given was in the negative. Petitioners
1. The fundamental issue, to repeat, is the availability of the writ of habeas corpus
plead for a new look on the matter. They would premise their stand on the denial of
under the circumstances disclosed. Its latitudinarian scope to assure that illegality of
equal protection if their plea would not be granted. Moreover they did invoke the
restraint and detention be avoided is one of the truisms of the law. It is not known as
codal provision that judicial decisions shall form part of the legal system of the
the writ of liberty for nothing. The writ imposes on judges the grave responsibility of
Philippines,3 necessarily resulting in the conclusion that the Hernandez decision once
ascertaining whether there is any legal justification for a deprivation of physical
promulgated calls for a retroactive effect under the explicit mandate of the Revised
freedom. Unless there be such a showing, the confinement must thereby cease. If
Penal Code as to penal laws having such character even if at the time of their
there be a valid sentence it cannot, even for a moment, be extended beyond the
application a final sentence has been rendered "and the convict is serving the
period provided for by law. Any deviation from the legal norms call for the
same."4 These arguments carry considerable persuasion. Accordingly we find for
termination of the imprisonment.
petitioners, without going so far as to overrule Pomeroy.

Rightly then could Chafee refer to the writ as "the most important human rights
Petitioner Mario Gumabon, after pleading guilty, was sentenced on May 5, 1953 to
provision" in the fundamental law. 10Nor is such praise unique. Cooley spoke of it as
suffer reclusion perpetua for the complex crime of rebellion with multiple murder,
"one of the principal safeguards to personal liberty." 11 For Willoughby, it is "the
robbery, arson and kidnapping. Petitioners Gaudencio Agapito, Paterno Palmares
greatest of the safeguards erected by the civil law against arbitrary and illegal
and Epifanio Padua, likewise pleaded guilty to the complex crime of rebellion with
imprisonment by whomsoever detention may be exercised or ordered." 12 Burdick
multiple murder and other offenses, and were similarly made to suffer the same
echoed a similar sentiment, referring to it as "one of the most important bulwarks of
penalty in decisions rendered, as to the first two, on March 8, 1954 and, as to the
liberty." 13 Fraenkel made it unanimous, for to him, "without it much else would be
third, on December 15, 1955. The last petitioner, Blas Bagolbagol, stood trial also for
of no avail." 14 Thereby the rule of law is assured.
the complex crime of rebellion with multiple murder and other offenses and on
January 12, 1954 penalized with reclusion perpetua. Each of the petitioners has been
A full awareness of the potentialities of the writ of habeas corpus in the defense of
liberty coupled with its limitations may be detected in the opinions of former Chief
Justices Arellano, 15 Avanceña, 16 Abad Santos, 17 Paras, 18Bengzon, 19 and the
present Chief Justice. 20 It fell to Justice Malcolm's lot, however to emphasize quite a
few times the breadth of its amplitude and of its reach. In Villavicencio v.
Lukban, 21 the remedy came in handy to challenge the validity of the order of the then
respondent Mayor of Manila who, for the best of reasons but without legal
justification, ordered the transportation of more than 150 inmates of houses of ill-
repute to Davao. After referring to the writ of habeas corpus as having been devised
and existing "as a speedy and effectual remedy to relieve persons from unlawful
restraint" the opinion of Justice Malcolm continued: "The essential object and
purpose of the writ of habeas corpus is to inquire into all manner of involuntary
restraint as distinguished from voluntary, and to relieve a person therefrom if such
restraint is illegal. Any restraint which will preclude freedom of action is sufficient." 22
The liberality with which the judiciary is to construe habeas corpus petitions even if
presented in pleadings on their face devoid of merit was demonstrated in Ganaway
v. Quilen, 23 where this Court, again through Justice Malcolm, stated: "As standing
alone the petition for habeas corpus was fatally defective in its allegations, this court,
on its motion, ordered before it the record of the lower court in the case
entitled Thomas Casey, et al. v. George Ganaway." 24 It is to Justice Malcolm likewise
in Conde v. Rivera, 25 to whom is traceable the doctrine, one that broadens the field
of the operation of the writ, that a disregard of the constitutional right to speedy trial
ousts the court of jurisdiction and entitles the accused if "restrained of his liberty, by
habeas corpus to obtain his
freedom." 26
So it is in the United States. An 1830 decision 27 of Chief Justice Marshall put the
matter thus: "The writ of habeas corpus is a high prerogative writ, known to the
common law, the great object of which is the liberation of those who may be
imprisoned without sufficient cause." Then there is this affirmation from an 1869
decision 28 of the then Chief Justice Chase: "The great writ of habeas corpus has been
for centuries esteemed the best and only sufficient defense of personal freedom."
The passing of the years has only served to confirm its primacy as a weapon on in the
cause of liberty. Only the other year, Justice Fortas spoke for the United States
Supreme Court thus: "The writ of habeas corpus is the fundamental instrument for
safeguarding individual freedom against arbitrary and lawless state action. ... The
scope and flexibility of the writ — its capacity to reach all manner of illegal detention
— its ability to cut through barriers of form and procedural mazes — have always
been emphasized and jealously guarded by courts and lawmakers. The very nature
of the writ demands that it be administered with the initiative and flexibility essential
to insure that miscarriages of justice within its reach are surfaced and
corrected." 29 Justice Fortas explicitly made reference to Blackstone, who spoke of it
as "the great and efficacious writ, in all manner of illegal confinement." Implicit in his
just estimate of its pre-eminent role is his adoption of Holmes' famous dissent in
Frank v. Mangum: 30 "But habeas corpus cuts through all forms and goes to the very
tissue of the structure."
2. Where, however, the detention complained of finds its origin in what has been
judicially ordained, the range of inquiry in a habeas corpus proceeding is considerably
narrowed. For if "the person alleged to be restrained of his liberty is in the custody
of an officer under process issued by a court or judge or by virtue of a judgment or
order of a court of record, and that the court or judge had jurisdiction to issue the
process, render the judgment, or make the order," the writ does not lie. 31 That
principle dates back to 1902, 32 when this Court announced that habeas corpus was
unavailing where the person detained was in the custody of an officer under process
issued by a court or magistrate. This is understandable, as during the time the
Philippines was under American rule, there was necessarily an adherence to
authoritative doctrines of constitutional law there followed.
One such principle is the requirement that there be a finding of jurisdictional defect.
As summarized by Justice Bradley in Ex parte Siebold, an 1880 decision: "The only
ground on which this court, or any court, without some special statute authorizing it,
will give relief on habeas corpus to a prisoner under conviction and sentence of
another court is the want of jurisdiction in such court over the person or the cause,
or some other matter rendering its proceedings void." 33
There is the fundamental exception though, that must ever be kept in mind. Once a
deprivation of a constitutional right is shown to exist, the court that rendered the
judgment is deemed ousted of jurisdiction and habeas corpus is the appropriate
remedy to assail the legality of the detention. 34
3. Petitioners precisely assert a deprivation of a constitutional right, namely, the
denial of equal protection. According to their petition: "In the case at bar, the
petitioners were convicted by Courts of First Instance for the very same rebellion for
which Hernandez, Geronimo, and others were convicted. The law under which they
were convicted is the very same law under which the latter were convicted. It had
not and has not been changed. For the same crime, committed under the same law,
how can we, in conscience, allow petitioners to suffer life imprisonment, while others
can suffer only prision mayor?" 35
They would thus stress that, contrary to the mandate of equal protection, people
similarly situated were not similarly dealt with. What is required under this required
constitutional guarantee is the uniform operation of legal norms so that all persons
under similar circumstances would be accorded the same treatment both in the
privileges conferred and the liabilities imposed. As was noted in a recent decision:
"Favoritism and undue preference cannot be allowed. For the principle is that equal
protection and security shall be given to every person under circumstances, which if
not identical are analogous. If law be looked upon in terms of burden or charges,
those that fall within a class should be treated in the same fashion, whatever
restrictions cast on some in the group equally binding on the rest." 36
The argument of petitioners thus possesses a persuasive ring. The continued
incarceration after the twelve-year period when such is the maximum length of
imprisonment in accordance with our controlling doctrine, when others similarly
convicted have been freed, is fraught with implications at war with equal protection.
That is not to give it life. On the contrary, it would render it nugatory. Otherwise,
what would happen is that for an identical offense, the only distinction lying in the
finality of the conviction of one being before the Hernandez ruling and the other
after, a person duly sentenced for the same crime would be made to suffer different
penalties. Moreover, as noted in the petition before us, after our ruling in People v.
Lava, petitioners who were mere followers would be made to languish in jail for
perhaps the rest of their natural lives when the leaders had been duly considered as
having paid their penalty to society, and freed. Such a deplorable result is to be
avoided.
4. Petitioners likewise, as was made mention at the outset, would rely on Article 22
of the Revised Penal Code which requires that penal judgment be given a retroactive
effect. In support of their contention, petitioners cite U.S. v. Macasaet, 37 U.S.
vs.Parrone, 38 U.S. v. Almencion, 39 People v. Moran, 40 and People v. Parel. 41 While
reference in the above provision is made not to judicial decisions but to legislative
acts, petitioners entertain the view that it would be merely an exaltation of the literal
to deny its application to a case like the present. Such a belief has a firmer foundation.
As was previously noted, the Civil Code provides that judicial decisions applying or
interpreting the Constitution, as well as legislation, form part of our legal system.
Petitioners would even find support in the well-known dictum of Bishop Hoadley:
doubt. As far back as 1910 the prevailing doctrine was announced in Cruz v. Director
of Prisons. 45Thus: "The courts uniformly hold that where a sentence imposes
punishment in excess of the power of the court to impose, such sentence is void as
to the excess, and some of the courts hold that the sentence is void in toto; but the
weight of authority sustains the proposition that such a sentence is void only as to
the excess imposed in case the parts are separable, the rule being that the petitioner
is not entitled to his discharge on a writ of habeas corpus unless he has served out so
much of the sentence as was valid." 46 There is a reiteration of such a principle
in Director v. Director of Prisons 47 where it was explicitly announced by this Court
"that the only means of giving retroactive effect to a penal provision favorable to the
accused ... is the writ of habeas corpus." 48 While the above decision speaks of a trial
judge losing jurisdiction over the case, insofar as the remedy of habeas corpus is
concerned, the emphatic affirmation that it is the only means of benefiting the
accused by the retroactive character of a favorable decision holds true. Petitioners
clearly have thus successfully sustained the burden of justifying their release.
WHEREFORE, the petition for habeas corpus is granted, and it is ordered that
petitioners be forthwith set at liberty.
Dizon and Zaldivar, JJ., concur.Concepcion, C.J., concurs in the result. Castro and
Makasiar, JJ., took no part.

"Whoever hath an absolute authority to interpret any written or spoken laws, it is he

who is truly the law-giver to all intents and purposes, and not the person who first
thought or spoke them." It is to be admitted that constitutional law scholars, notably
Frankfurter, 42 Powell, 43 and Thayer, 44 in discussing judicial review as well as the
jurist John Chipman Gray, were much impressed with the truth and the soundness of
the above observations. We do not have to go that far though. Enough for present
purposes that both the Civil Code and the Revised Penal Code allow, if they do not
call for, a retroactive application.

It being undeniable that if the Hernandez ruling were to be given a retroactive effect
petitioners had served the full term for which they could have been legally
committed, is habeas corpus the appropriate remedy? The answer cannot be in
G.R. No. 100210 April 1, 1998
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. OSCAR B. PIMENTEL, as Judge, RTC of Makati, Metro Manila, Branch 148 and
ANTONIO A. TUJAN, respondents.
MARTINEZ, J.:
Is the Court of Appeals, in affirming the order of the Regional Trial Court, correct in
ruling that Subversion is the "main offense" in a charge of Illegal Possession of
Firearm and Ammunition in Furtherance of Subversion under P.D. No. 1866, as
amended, and that, therefore, the said charge should be quashed in view of a
previous charge of Subversion under R.A. No. 1700, as amended by P.D. No. 885,
against the same accused pending in another court?
Stated differently, is the accused charged with the same offense in both cases, which
would justify the dismissal of the second charge on the ground of double jeopardy?
This is the pith issue presented before us in this appeal by certiorari interposed by
the People under Rule 45 of the Revised Rules of Court, seeking a review of the
decision1 of the Court of Appeals (Sixteenth Division) dated May 27, 1991, in CA-G.R.
SP No. 24273, entitled "THE PEOPLE OF THE PHILIPPINES, Petitioner, versus HON.
OSCAR B. PIMENTEL, as Judge, RTC of Makati, Metro Manila, Branch 148 and
ANTONIO A. TUJAN, Respondents."
The record discloses the following antecedent facts:
As early as 1983, private respondent Antonio Tujan was charged with Subversion
under Republic Act No. 1700 (the Anti-Subversion Law), as amended, before the
Regional Trial Court of Manila (Branch 45), National Capital Region, docketed as
Criminal Case No. 64079.2 As a consequence thereof, a warrant for his arrest was
issued on July 29, 1983,3 but it remained unserved as he could not be found.
Almost seven (7) years thereafter, or on June 5, 1990, Antonio Tujan was arrested on
the basis of the warrant of arrest in the subversion case.4 When arrested, an
unlicensed .38 caliber special revolver and six (6) rounds of live ammunition were
found in his possession.5
Consequently, on June 14, 1990, Antonio Tujan was charged with Illegal Possession
of Firearm and Ammunition in Furtherance of Subversion under Presidential Decree
No. 1866, as amended, before the Regional Trial Court of Makati (Branch 148),
docketed as Criminal Case No. 1789. The Information reads:
That on or about the 5th day of June, 1990, in the Municipality of Parañaque,
Metro Manila, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, being a member of a communist party of
the Philippines, and its front organization, did then and there willfully,
unlawfully and feloniously have in his possession, control and custody, in
furtherance of or incident to, or in connection with the crime of subversion,
a special edition ARMSCOR PHILS. caliber .38 special revolver with Serial No.
1026387 and with six (6) live ammunitions, without first securing the
necessary license or permit thereof from competent government authority.6
The above Information recommended no bail for Antonio Tujan, which
recommendation was approved by the trial court in an Order dated June 19,
1990.7 The same order also directed the continued detention of Antonio Tujan at MIG
15 of the Intelligence Service of the Armed Forces of the Philippines (ISAFP), Bago
Bantay, Quezon City, while his case is pending.
On June 26, 1990, Antonio Tujan, through counsel, filed a motion 8 invoking his right
to a preliminary investigation pursuant to Section 7, Rule 112 of the Revised Rules of
Court and praying that his arraignment be held in abeyance until the preliminary
investigation is terminated.
However, on June 27, 1990, during the hearing of Antonio Tujan's motion for
preliminary investigation, his counsel withdrew the motion since he would file a
motion to quash the Information, for which reason counsel requested a period of
twenty (20) days to do so. This was granted by the trial court on that same day.9
On July 16, 1990, Antonio Tujan did file the motion to quash 10 the Information in
Criminal Case No. 1789 on the ground that he "has been previously in jeopardy of
being convicted of the offense charged" in Criminal Case No. 64079 (for subversion)
of the Regional Trial Court of Manila (Branch 45). The said ground is based on Sections
3 (h) and 7, Rule 117 of the 1985 Rules on Criminal Procedure. In support of the
motion, Antonio Tujan contends that "common crimes such as illegal possession of
firearms and ammunition should actually be deemed absorbed in
subversion,"11 citing the cases of Misolas vs. Panga, et al. (G.R. No. 83341, January
30, 1990, 181 SCRA 648) and Enrile vs. Salazar, et al. (G.R. No. 92163, June 5, 1990,
186 SCRA 217). Antonio Tujan then avers that "the present case is the twin
prosecution" of "the earlier subversion case" and, therefore, he "is entitled to invoke
the constitutional protection against double jeopardy."12
The petitioner opposed13 the motion to quash, arguing that Antonio Tujan does not
stand in jeopardy of being convicted a second time because: (a) he has not even been
arraigned in the subversion case, and (b) the offense charged against him in Criminal
Case No. 64079 is for Subversion, punishable under Republic Act No. 1700; while the
present case is for Illegal Possession of Firearm and Ammunition in Furtherance of
Subversion, punishable under a different law (Presidential Decree No. 1866).
Moreover, petitioner contends that Antonio Tujan's reliance on the Misolas and
Enrile cases "is misplaced."14 Tujan merely relies on the dissenting opinions in the
Misolas case. Also, the Enrile case which involved a complex crime of rebellion with
murder is inapplicable to the instant case which is not a complex offense. Thus, the
"absorption rule" as held applicable in the Enrile ruling "has no room for application
in the present case because (illegal) possession of firearm and ammunition is not a
necessary means of committing the offense of subversion, nor is subversion a
necessary means of committing the crime of illegal possession of firearm and
ammunition."15
The trial court, in an order dated October 12, 1990, granted the motion to quash the
Information in Criminal Case No. 1789, the dispositive portion of the order reading:
WHEREFORE, the motion to quash the information is hereby GRANTED, but
only in so far as the accused may be placed in jeopardy or in danger of being
convicted or acquitted of the crime of Subversion and as a consequence the
Information is hereby quashed and the case dismissed without prejudice to
the filing of Illegal Possession of Firearm.
SO ORDERED.16
It is best to quote the disquisition of the respondent court in quashing the
information and dismissing the case:
xxx xxx xxx
In other words, the main offense the accused is being charged in this case is
also Subversion considering that the alleged Illegal Possession of the Firearm
and Ammunition is only in furtherance thereof.
Now, subversion being a continuing offense as has been previously held by
the Supreme Court, the fact that the accused has been previously charged
of Subversion before another court before the institution of this instant case
is just a continuing offense of his former charge or that his acts constituting
subversion is a continuation of the acts he committed before.
The court therefore cannot subscribe to the position taken by the
prosecution that this case is very different from the other case and that
double jeopardy will attach in this particular case.
This court agrees with the position taken by the defense that double
jeopardy will attach to the accusation of subversion, punishable now under
Republic Act 1700, as Rule 117 of the Rules of Court particularly Section 1
thereof, provides:
Time to move to quash — At anytime before entering his
plea, the accused may move to quash the complaint or
information.(la)
In other words, there is no necessity that the accused should be arraigned
first before he can move to quash the information. It is before he pleads
which the accused did in this case.
On the other submissions by the prosecution, that the possession of
firearms and ammunitions is not a necessary means of committing the
offense of subversion or vice versa, then if the court follows such argument,
there could be no offense of Illegal Possession of Firearm and Ammunition
in furtherance of Subversion, for even the prosecution admits also that in
subversion which is an offense involving propaganda, counter propaganda,
a battle of the hearts and mind of the people does not need the possession
or use of firearms and ammunitions.
The prosecution even admits and to quote:
The defense of double jeopardy. while unquestionably
available to the accused, had not been clearly shown to be
invokable(sic) at this point in time.
But the rule says otherwise as previously stated as provided for under
Section 1 of Rule 117 of the Rules of Court.
Thus, if ever the accused is caught in possession of a firearm and ammunition
which is separate and distinct from the crime of subversion and is not a
necessary ingredient thereof and the court believed so, the prosecution will
have to file another information as they may wish. The court therefore has
to grant the motion to quash on the aforestated grounds, subject to Section
5 of Rule 117, considering that the only offense to which the accused in this
case may be placed in jeopardy is Subversion and not Illegal Possession of
Firearms and Ammunitions.
 The prosecution may file any information as warranted within ten (10) days
from receipt of this order otherwise the court will order the release of the
accused, unless he is in custody for some other offense. 17(Emphasis ours)
Petitioner's motion for reconsideration18 was also denied in an order dated
December 28, 1990.19
The petitioner elevated the case to the Court of Appeals through a petition
for certiorari, docketed as CA-G.R. SP No. 24273. However, the appellate court found
that the trial court did not commit any grave abuse of discretion amounting to lack
or excess of jurisdiction in quashing the questioned Information. In dismissing the
petition, the appellate court, in its decision dated May 27, 1991, basically reiterated
the aforequoted ruling of the trial court.
Petitioner now comes to this Court, claiming that: (1) the decision of the Court of
Appeals is not in accord with the law and applicable jurisprudence; and (2) it was
deprived of due process to prosecute and prove its case against private respondent
Antonio Tujan in Criminal Case No. 1789.
We agree with the petitioner.
The Court of Appeals considered as duplicitous the Information for violation of P.D.
No. 1866 filed against private respondent Antonio Tujan. It ruled:
The foregoing information (for Illegal Possession of Firearm and Ammunition
in Furtherance of Subversion) filed before the Makati court shows that the
main case is subversion considering that there is an allegation that the
alleged illegal possession of firearms was made "in furtherance of or
incident to, or in connection with the crime of subversion." Also, the
information alleged likewise that the accused is a member of a communist
party of the Philippines and its front organization. Basically, the information
refers to the crime of Subversion qualified by Illegal Possession of Firearms.
. . .20
The ruling of the Court of Appeals is erroneous.
Section 1 of Presidential Decree No. 1866, under which Antonio Tujan is charged in
Criminal Case No. 1789 before the Regional Trial Court of Makati (Branch 148),
provides as follows:
Sec. 1. Unlawful Manufacture, Sales, Acquisition, Disposition or Possession
of Firearms or Ammunition or Instruments Used or Intended to be Used in
the Manufacture of Firearms or Ammunition. — The penalty of reclusion
temporal in its maximum period to reclusion perpetua shall be imposed
upon any person who shall unlawfully manufacture, deal in, acquire,
dispose, or posses any firearms, part of firearm, ammunition, or machinery,
tool or instrument used or intended to be used in the manufacture of any
firearm or ammunition.
If homicide or murder is committed with the use of an unlicensed firearms,
the penalty of death shall be imposed.
If the violation of this Section is in furtherance of, or incident to, or in
connection with the crimes of rebellion, insurrection or subversion, the
penalty of death shall be imposed.
The penalty of reclusion temporal in its maximum period to reclusion
perpetua shall be imposed upon the owner, president, manager, director or
other responsible officer of any public or private firm, company, corporation
or entity, who shall willfully or knowingly allow any of the firearms owned
by such firm, company, corporation or entity to be used by any person or
persons found guilty of violating the provisions of the preceding paragraphs.
The penalty of prision mayor shall be imposed upon any person who shall
carry any licensed firearm outside his residence without legal authority
therefor. (Emphasis ours)
The above-quoted provisions of P.D. No. 1866 are plain and simple. Under the first
paragraph of Section 1, the mere possession of an unlicensed firearm or ammunition
is the crime itself which carries the penalty of reclusion temporal in its maximum
period to reclusion perpetua. The third paragraph of the same Section makes
the use of said firearm and ammunition "in furtherance of, or incident to, or in
connection with the crimes of rebellion, insurrection or subversion" a circumstance
to increase the penalty to death. Thus, the allegation in the Information in Criminal
Case No. 1789 that the unlicensed firearm found in the possession of Antonio Tujan,
"a member of the communist party of the Philippines and its front organization," was
used "in furtherance of or incident to, or in connection with the crime of
subversion" does not charge him with the separate and distinct crime of Subversion
in the same Information, but simply describes the mode or manner by which the
violation of Section 1 of P.D. No. 1866 was committed21 so as to qualify the penalty to
death.
There is, therefore, only one offense charged in the questioned information, that
is, the illegal possession of firearm and ammunition, qualified by its being used in
furtherance of subversion.22 There is nothing in P.D. No. 1866, specifically Section 1
thereof, which decrees categorically or by implication that the crimes of rebellion,
insurrection or subversion are the very acts that are being penalized. This is clear
from the title of the law itself which boldly indicates the specific acts penalized under
it:
CODIFYING THE LAWS ON ILLEGAL/UNLAWFUL
POSSESSION, MANUFACTURE, DEALING IN, ACQUISITION
OR DISPOSITION, OF FIREARMS, AMMUNITION OR
EXPLOSIVES OR INSTRUMENTS USED IN THE
MANUFACTURE OF FIREARMS, AMMUNITION OR
EXPLOSIVES, AND IMPOSING STIFFER PENALTIES FOR
CERTAIN VIOLATIONS THEREOFAND FOR RELEVANT
PURPOSES. (Emphasis ours)
On the other hand, the previous subversion charge against Antonio Tujan in Criminal
Case No. 64079, before the Regional Trial Court of Manila (Branch 45), is based on a
different law, that is, Republic Act No. 1700, as amended. Section 3 thereof penalizes
any person who "knowingly, willfully and by overt act affiliates with, becomes or
remains a member of a subversive association or organization . . ." Section 4 of said
law further penalizes "such member [of the Communist Party of the Philippines
and/or its successor or of any subversive association] (who) takes up arms against
the Government." Thus, in the present case, private respondent Antonio Tujan could
be charged either under P.D. No. 1866 or R.A. No. 1700,23 or both.
This leads us to the issue of whether or not private respondent Antonio Tujan was
placed in double jeopardy with the filing of the second Information for Illegal
Possession of Firearm and Ammunition in Furtherance of Subversion.
We rule in the negative.
Article III of the Constitution provides:
Sec. 21. No person shall be twice put in jeopardy of punishment for the same
offense. If an act is punished by a law and an ordinance, conviction or
acquittal under either shall constitute a bar to another prosecution for the
same act. (Emphasis ours)
Complementing the above constitutional provision, Rule 117 of the Revised Rules of
Court states:
Sec. 7. Former conviction or acquittal; double jeopardy. — When an accused
has been convicted or acquitted, or the case against him dismissed or
otherwise terminated without his express consent by a court of competent
jurisdiction, upon a valid complaint or information or other formal charge
sufficient in form and substance to sustain a conviction and after the
accused had pleaded to the charge, the conviction or acquittal of the
accused or the dismissal of the case shall be a bar to another prosecution
for the offense charged, or for any attempt to commit the same or
frustration thereof, or for any offense which necessarily includes or is
necessarily included in the offense charged in the former complaint or
information.
xxx xxx xxx
The right of an accused against double jeopardy is a matter which he may raise in a
motion to quash to defeat a subsequent prosecution for the same offense. The
pertinent provision of Rule 117 of the Revised Rules of Court provides:
Sec. 3. Grounds. — The accused may move to quash the complaint or
information on any of the following grounds:
xxx xxx xxx
(h) That the accused has been previously convicted or in jeopardy of being
convicted, or acquitted of the offense charged. (2a) (Emphasis ours)
In order that the protection against double jeopardy may inure to the benefit of an
accused, the following requisites must have obtained in the first criminal action: (a)
a valid complaint or information; (b) a competent court; (c) the defendant had
pleaded to the charge;24 and (d) the defendant was acquitted, or convicted, or the
case against him was dismissed or otherwise terminated without his express
consent.25
Suffice it to say that in the present case, private respondent's motion to quash filed
in the trial court did not actually raise the issue of double jeopardy simply because it
had not arisen yet. It is noteworthy that the private respondent has not even been
arraigned in the first criminal action for subversion. Besides, as earlier discussed, the
two criminal charges against private respondent are not of the same offense as
required by Section 21, Article III of the Constitution.
It is clear from the foregoing, that the assailed decision of the Court of Appeals is not
in accordance with the law and jurisprudence and thus should be reversed.
While we hold that both the subversion charge under R.A. No. 1700, as amended,
and the one for illegal possession of firearm and ammunition in furtherance of
subversion under P.D. No. 1866, as amended, can co-exist,
the subsequent enactment of Republic Act No. 7636 on September 22, 1992, totally
repealing R.A. No. 1700, as amended, has substantially changed the complexion of
the present case, inasmuch as the said repealing law being favorable to the accused-
private respondent, who is not a habitual delinquent, should be given retroactive
effect.26
Although this legal effect of R.A. No. 7636 on private-respondent's case has never
been raised as an issue by the parties — obviously because the said law came out
only several months after the questioned decision of the Court of Appeals was
promulgated and while the present petition is pending with this Court — we should
nonetheless fulfill our duty as a court of justice by applying the law to whomsoever
is benefited by it regardless of whether or not the accused or any party has sought
the application of the beneficent provisions of the repealing law.27
That R.A. No. 7636 should apply retroactively to accused-private respondent is
beyond question. The repeal by said law of R.A. No. 1700, as amended, was
categorical, definite and absolute. There was no saving clause in the repeal. The
legislative intent of totally abrogating the old anti-subversion law is clear. Thus, it
would be illogical for the trial courts to try and sentence the accused-private
respondent for an offense that no longer exists.28
As early as 1935, we ruled in People vs. Tamayo:29
There is no question that at common law and in America a much more
favorable attitude towards the accused exists relative to statutes that have
been repealed than has been adopted here. Our rule is more in conformity
with the Spanish doctrine, but even in Spain, where the offense ceases to be
criminal, prosecution cannot be had. (1 Pacheco Commentaries, 296)
(Emphasis ours)
Where, as here, the repeal of a penal law is total and absolute and the act with was
penalized by a prior law ceases to be criminal under the new law, the previous offense
is obliterated.30 It is a recognized rule in this jurisdiction that a total repeal deprives
the courts of jurisdiction to try, convict and sentence persons charged with violation
of the old law prior to the repeal.31
With the enactment of R.A. No. 7636, the charge of subversion against the accused-
private respondent has no more legal basis and should be dismissed.
As regards the other charge of illegal possession of firearm and ammunition, qualified
by subversion, this charge should be amended to simple illegal possession of firearm
and ammunition since, as earlier discussed, subversion is no longer a crime.
Moreover, the offense of simple illegal possession of firearm and ammunition is now
bailable under Republic Act No. 8294 which was enacted on June 6, 1997. R.A. No.
8294 has amended Presidential Decree No. 1866, as amended, by eliminating the
provision in said P.D. that if the unlicensed firearm is used in furtherance of
subversion, the penalty of death shall he imposed. 32 Under the new law (R.A. No.
8294), the penalty prescribed for simple illegal possession of firearm (.38 caliber) is
now reduced to prision correccional in its maximum period and a fine of not less than
Fifteen thousand pesos (P15,000.00).33 The reduced penalty of imprisonment —
which is four (4) years, two (2) months and one (1) day to six (6) years — entitles the
accused-private respondent to bail. Considering, however, that the accused-private
respondent has been detained since his arrest on June 5, 1990 up to the present (as
far as our record has shown), or more than seven (7) years now, his immediate
release is in order. This is so because even if he were convicted for illegal possession
of firearm and ammunition, the length of his detention while his case is pending has
already exceeded the penalty prescribed by the new law.
WHEREFORE, the assailed decision of the Court of Appeals dated May 27, 1991, in
CA-G.R. SP No. 24273, including the orders dated October 12, 1990 and December
28, 1990 of the Regional Trial Court of Makati (Branch 148), National Capital Region,
in Criminal Case No. 1789, are hereby REVERSED and SET ASIDE.
The subversion charge against accused-private respondent Antonio A. Tujan in
Criminal Case No. 64079 of the Regional Trial Court of Manila, Branch 45, is hereby
DISMISSED.
The other Information for illegal possession of firearm and ammunition in
furtherance of subversion against the same accused in Criminal Case No. 1789 of the
Regional Trial Court of Makati, Branch 148, is DEEMED AMENDED to Simple Illegal
Possession of Firearm and Ammunition. The accused-appellant is hereby ordered
RELEASED IMMEDIATELY from detention for the reason stated above, unless he is
being detained for any other offense.
This decision is IMMEDIATELY EXECUTORY.
No pronouncement as to costs. SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan,
Mendoza, Panganiban, Quisumbing and Purisima, JJ., concur.
G.R. No. L-2873 February 28, 1950 enacted in its amended form the amendment becomes a part of the original statute
as if it had always been contained therein, unless such amendment involves the
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, abrogation of contractual relations between the state and others. Where an
vs. amendment leaves certain portions of the original act unchanged, such portions are
EUGENIO GARCIA Y MADRIGAL, defendant-appellant. continued in force, with the same meaning and effect they had before the
amendment. So where an amendatory act provides that an existing statute shall be
Dominador A. Alafriz for appellant. amended to read as recited in the amendatory act, such portions of the existing law
First Assistant Solicitor General Roberto A. Gianzon and Solicitor Rafael P. Cañiza for as are retained, either literally or substantially, are regarded as a continuation of the
appellee. existing law, and not as a new enactment." (59 C. J., 1096, 1097.)

TUASON, J.: We find no irreconcilable conflict between article 68, paragraph 2, as it nowstands
and article 80 as amended. There is no incompatibility between granting accused of
the ages of 15 to 18 a privileged mitigating circumstance and fixing at 16 the
The sole question presented on this appeal is whether the appellant, being 17 years
maximum age of persons who are to be placed in a reformatory institution. In other
of age at the time of at the time of the commission of the crime, was entitled to the
words, there is no inconsistency between sending defendants of certain ages to
privileged mitigating circumstance of article 68, paragraph 2, of the Revised Penal
prison and giving them a penalty lower than the imposable one on adults under the
Code. The lower court, ignoring defendant's minority, sentenced him to an
same or similar circumstances. Let it be remember that the privilege of article
indeterminate penalty of from 4 years, 2 months and 1 day of prision correccional to
68, supra, is not by its nature inherent in age but purely statutory and conventional,
8 years of prision mayor for the crime of robbery of which he was found guilty. He
and that this privilege is granted adult offenders under given conditions.
was also sentenced to pay the offended party, jointly and severally with the other
accused, the sum of P85 as indemnity.
At least there is no clear intention on the part of the Congress to amend article 68.
Indeed the rational presumption is that if there had been such an intention the
Republic Act No. 47, which amended article 80 of the Revised Penal Code by reducing
lawmakers should have said so expressly, instead of leaving the change to inference.
from 18 to 16 the age below which accused have to "be committed to the custody or
care of a public or private, benevolent or charitable institution," instead of being
convicted and sentenced to prison, has given rise to the controversy. The Solicitor One other rule of interpretation that quarrels with the theory of implied repeal or
General believes that the amendment by implication has also amended paragraph 2 amendment is that penal law is to be construed, in case of doubt, strictly against the
of article 68 of the Revised Pena Code, which provides that when the offender is over state. "Criminal and penal statutes must be strictly construed, that is, they cannot be
fifteen and under eighteen years age, "The penalty next lower than that prescribed enlarged or extended by intendment, implication, or by any equitable considerations.
by law shall be imposed, but always in the proper period." In other words, the language cannot be enlarged beyond the ordinary meaning of its
terms in order to carry into effect the general purpose for which the statute was
enacted. Only those persons, offenses, and penalties, clearly included, beyond any
There are well recognized rules of statutory construction which are against the
reasonable doubt, will be considered within the statute's operation. They must come
Government's contention.
clearly within both the spirit and the letter of the statute, and where there is any
reasonable doubt, it must be resolved in favor of the person accused of violating the
One of these rules is that all parts of a statute are to be harmonized and reconciled statute; that is, all questions in doubt will be resolved in favor of those from whom
so that effect may be given to each and every part thereof, and that conflicting
the penalty is sought." (Statutory Construction, Crawford, pp. 460-462.)
intention in the same statute are never to be supposed or so regarded, unless forced
upon the court by an unambiguous language. (59 C. J., 999.)
The offense charged in the information of which the appellant was found guilty is
punishable under article 294, case No. 5, of the Revised Penal Code, as amended by
This rule applies in the construction of a statute and its amendment, both being read
section 6 of Republic Act No. 18, with prision correccional in its maximum period to
together as whole. "An amended act is ordinarily to be construed as if the original
prision mayor in its medium period. The penalty one degree lower than this is arresto
statute has been repealed, and a new and independent act in the amended form had
mayor in its maximum period to prision correccional in its medium period. There
been adopted in its stead; or, as frequently stated by the courts, so far as regards any
being no modifying circumstance, the appropriate penalty in the present case is from
action after the adoption of the amendment, as if the statute had been originally
6 months and 1 day of arresto mayor to 2 years and 4 months ofprision
correccional. Being entitled to an indeterminate penalty as provided in section 1 of
Act No. L-4103 as amended, the accused should be, and he is hereby sentenced to
imprisonment of not less than 4 months of arresto mayor and not more than 2 years
and 4 months of prision correccional. In all other respect the appealed judgment is
affirmed. The appellant will pay the costs of this appeal.
Moran, C.J., Ozaeta, Pablo, Bengzon, Padilla, Montemayor, Reyes and Torres,
JJ., concur.
RESOLUTION ON MOTION FOR RECONSIDERATION
April 12, 1950
TUASON, J.:
This is a motion for reconsideration of our decision.
The main theme of the Solicitor General's argument is that articles 13 (2) and 68 (2)
of the Revised Penal code "complement each other;" that "the application of article
68 takes place only when the court has to render judgment and impose a penalty
upon a minor who has been proceeded against in accordance with article 80 and who
had misbehaved or is found incorrigible," and that "article 80 must be applied first
before article 68 can come into operation, and the court can not apply the latter
article in total disregard of the former." In short, as we infer from this line of
reasoning, what article 80 does not touch, article 68 can not touch.
We do not think the premise and conclusion of the motion are correct. There seems
to be a confusion of ideas.
It may do us well to make brief review of the legislation, past and present, relative to
juvenile offenders and dissect and analyze its various provisions and the differences
between them and the role assigned to each. .
Article 68 of the Revised Penal code provides:.
Penalty to be imposed upon a person under eighteen years of age. — When
the offender is a minor under eighteen years and his case is one coming
under the provisions of the paragraph next to the last of article 80 of this
Code, the following rules shall be observed:
1. Upon a person under fifteen but over nine years of age, who is not
exempted from liability by reason of the court having declared that he acted
with discernment, a discretionary penalty shall be imposed, but always
lower by two degrees at least than that prescribed by law for the crime
which he committed.
2. Upon a person over fifteen and under eighteen years of the penalty next
lower than that prescribed by law shall be imposed but always in the proper
period.
Sub-paragraph 1 and 2 of the foregoing article are a reproduction of article 85 of the
Spanish Penal Code.
Into the Revised Penal Code, the Juvenile Delinquency Act was incorporated. It has
become in the new code article 80, the first paragraph of which provides that
"whenever a minor under 18 years of age, of either sex, be accused of a crime, the
court . . . shall commit such minor to the custody or care of a public or private,
benevolent or charitable, institution, etc." And in the paragraph immediately
preceding the last, it is further provided that "In case the minor fails to behave
properly or to comply with the regulation of the institution to which he has been
committed, or with the conditions imposed upon him when he was committed to the
care of a responsible person, or in case he should be found incorrigible or his
continued stay in such institution should be inadvisable, he shall be returned to the
court in order that the same may render the judgment corresponding to the crime
committed by him."
The latest legislation on the subject was Republic Act No. 47, which amended article
80 of the Revised Penal Code so as to reduce to below 16 the age of minors coming
within its purview.
A close examination of articles 68 and 80 will disclose that article 68, according to its
main paragraph, is to lay off and watch while the minor is in the hands of a charitable
institution or person mentioned in article 80 trying to reform him or her. This has to
be so because article 68 is a rule for the application of penalties, and there is no
penalty when there is no judgment when the delinquent is in Welfareville or other
place of similar character or entrusted to the care of a private person. However, if
and when the minor turns out to be hopeless or incorrigible, he is returned to the
proper court and the court passes sentence on him or her. In other words, article 80
withdraws, as it were, and sub-paragraph 1 and 2, as the case maybe, of article 68
takes control.
From this it will be seen that article 68 is not dependent on article 80, nor do these
articles complement each other if by complement is meant that they are two
mutually completing parts so that article 68 could not stand without article 80. It is
more appropriate to say that article 68 merely adjusts itself to article 80 but is, in all
other respects, self-sufficient and independent of the latter. Parts of one system of
penology and working in coordination with each other, they pursue different ends. It
is to be noticed that article 68 falls under section 2 of Chapter IV entitled "Application
of Penalties," while article 80 comes under section 1 of Chapter V entitled "Execution
and Service of Penalties." Two different subjects, these.
It will also be seen that article 68, sub-paragraphs 1 and 2, and article 80 of the
Revised Penal Code do not function at the same time and are designed for different
purposes. Each has its assigned, separate sphere of action without in any way
intermingling with the other. When article 80 operates, article 68 keeps out of the
way; article 68 steps in when article 80 steps out.
While a minor is in the process of being reformed he is, in a manner of speaking, in
an intermediate or indeterminate state, neither in prison nor free. Through
repentance and by observing good conduct, he is rewarded with freedom, released
upon reaching the age of majority or before, but if he shows no promise of turning a
new leaf, Bilibid claims him.
It is the minors so situated; it is selection of two should be committed to are
formatory school or to the custody of a private person with which article 80 has to
do, and no more. Article 80 does not concern itself with what should be done with
minors when they are consigned to jail because of misbehavior; much less is it
concerned over minors who, after the passage of Republic Act No. 47, are
condemned to prison without having been under the custody of a benevolent
institution or private person like youths between 16 and 18. On the other hand,
article 68 is intended for minors who are sent to jail, a matter foreign to the province
of article 80.
To press the argument further, article 85 of the original Penal Code conferred upon
minors under 18 the right to a penalty. Then came the Juvenile Delinquency Act giving
additional concession to juvenile delinquents. When, later, Republic Act No. 47
amended article 80 so as to eliminate from its beneficent provisions minor of the age
of 16 or over and under 18, the logical effect of the amendment can no other than to
correspondingly reduce the age of minors regarding whom the suspensory inhibition
on article 68 is to be confined. Only to the extent and within the limits that article 80
applies is article 68 bound to defer to that article. Where article 80 does not apply
article 68 is supreme. When article 80 says that it will deal only with minors below
16, it relinquishes authority over minors above that age in favor of article 68. When
and if article 80 should by amendment further reduce the age to 15, to that extent
the operation of article 68 will be correspondingly enlarged.
In fact, if Republic Act No. 47, instead of limiting the operation of article 80 to minors
under 16, had totally abolished the scheme of juvenile reformation, sub-paragraphs
1 and 2 of article 68 of the Revised Penal Code would, in our opinion, remain intact,
with the only difference that, as before, they would have full sway, unhampered by
any consideration of suspended judgment. The predecessor of article 68 was in the
original Penal Code since that code was put in force in Spain in 1870 and in the
Philippines in 1884, long before the idea embodied in article 80 was conceived.
Before the Revised Penal Code went into effect, article 85 of the old Penal Code and
the Juvenile Delinquency Act worked in the manner herein set forth although there
was not any express provision coordinating their operation. It can safely be said that
the main paragraph of article 68 was inserted merely to explain in clear and express
terms when it should stand aloof and when it should play its role. The Revised Penal
Code merely states the obvious as befits a scientific system of law.
In conclusion, when Republic Act No. 47 amended article 80 of the Revised Penal
Code by reducing the age of persons who may be placed on probation under that
article, the amendment did not change in any form or manner the degree of
punishment that should be meted out to those who are to be committed to jail or
how they are to treated. After the minor is turned over to the court for sentence,
article 80 ceases to have any interest in him or her. In saying that the 16-and 18-year
old should no longer be given a trial or placed on probation in a reformatory
institution but should go straight to prison upon conviction, Republic Act No. 47 does
not, by implication or otherwise, connote that such minors should also be deprived
of a reduced penalty. In no standard of statutory construction is there support for the
proposition that the mitigating circumstance which minors between 16 and 18
enjoyed before Republic Act No. 47 came into being, notwithstanding the fact that
they had shown evidence of incorrigibility, should be denied them now for no other
reason than that the right to be committed to a reformatory school has been taken
away from them; now that they are confined in jail without having committed any
fault other than the crime for which they were prosecuted in the first instance.
Let it be remembered that by virtue of the amendment minors between 16 and 18
do not now come under the provisions of the paragraph next to the last of article 80.
Of course, the effect of a law amendment would different if the amendatory law had
absorbed the law which it had amended. In that case, the original law become part
and parcel of the new law, with the result that if the amendatory law be later
repealed, both that law and the law which it had superseded or amended would be
considered abrogated. There was no law of its own force could survive. But, as we
have indicated, article 68 as well as its predecessor is an independent provision and
has not been merged with article 80 or any other article of the Revised Penal code. It
is an independent provision inoperative only during the suspension of the sentence
but possessing all the vigor which article 85 of Spanish Code had, when the minors
are sentenced to jail.

In the decision sought to be reconsidered, we emphasize the rule of statutory

construction to the effect that all parts of a statute are to be harmonized and
reconciled so that effect may be given to each and every part thereof, and that
conflicting intentions in the same statute are never to be supposed or so regarded,
unless forced upon the court by an unambiguous language. (59 C. J., 999.) The motion
for reconsideration has not pointed to any conflict, and we can not find any, between
the retention of the privileged or special mitigating circumstance in favor of minors
below 18 and over 16 and the fact that such minors are not entitled to the benefits
of article 80 under any circumstances. The motion for reconsideration is conspicuous
for its silence on any incongruity or absurdity that might result from our ruling on the
scope and extent of Republic Act No. 47.

The sole consideration that might commend itself in favor of the Government's
position is the general welfare. For the good of society it may have been better if
Republic Act No. 47 had amended articles 13 and 68 also by correspondingly reducing
the age of accused minors entitled to a mitigating circumstance by reason of age. But
it is write to say that we are not authorized to insert into a law what we think should
be in it or to supply what we think the legislature would have supplied if its attention
had been called to the omission. This is specially true in penal legislation which, as
we have repeatedly stressed in our decision, has to be construed strictly. But there is
not even room for construction in this case. The preamble or explanatory note to
Republic Act No. 47 can not be used as basis for giving it an meaning not apparent on
its face. A preamble or explanatory not is resorted to only for clarification in cases of
doubt. There is no ambiguity in Republic Act No. 47.

The motion and the request to set it for oral argument are denied.

Moran, C.J., Ozaeta, Pablo, Bengzon, Montemayor, Reyes and Torres, JJ., concur.
G.R. No. L-38725 October 31, 1933 defendant or the subject matter of the action, because the complaint had not been
filed by the offended party, but by the chief of police (criminal case No. 1801).
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs. On August 17, 1932, the offended girl subscribed and swore to a complaint charging
PEDRO MANABA, defendant-appellant. the defendant with the crime of rape. This complaint was filed in the Court of First
Instance (criminal case No. 1872), but was referred to the justice of the peace of
Jose Ma. Cavanna for appellant. Dumaguete for preliminary investigation. The defendant waived his right to the
Office of the Solicitor-General Hilado for appellee. preliminary investigation, but asked for the dismissal of the complaint on the ground
that he had previously been placed in jeopardy for the same offense. This motion was
VICKERS, J.: denied by the justice of the peace, and the case was remanded to the Court of First
Instance, where the provincial fiscal in an information charged the defendant with
having committed the crime of rape as follows:1awphil.net
This is an appeal from a decision of Judge Eulalio Garcia in this Court of First Instance
of Oriental Negros in criminal case No. 1827 dated November 15, 1932, finding the
defendant guilty of rape and sentencing him to suffer seventeen years and four Que en o hacia la noche del dia 9 de mayo de 1932, en el Municipio de
months of reclusion temporal, and the accessory penalties of the law, to indemnify Dumaguete, Provincia de Negros Oriental, Islas Filipinas, y dentro de la
the offended party, Celestina Adapon, in the amount of P500, to maintain the jurisdiccion de este Juzgado. el referido acusado Pedro Manaba,
offspring, if any, at P5 a month until said offspring should become of age, and to pay aprovechandose de la oscuridad de la noche y mediante fuerza, violencia e
the costs. intimidacion, voluntaria, ilegal y criminalmente yacio y tuvo acceso carnal
con una niña llamada Celestina Adapon, contra la voluntad de esta. El
acusado Pedro Manaba ya ha sido convicto por Juzgado competente y en
The defendant appealed to this court, and his attorney de oficio now makes the
sentencia firme por este mismo delito de violacion.
following assignments of error:

Hecho cometido con infraccion de la ley.

1. El juzgado a quo erro al no estimar en favor del acusado apelante la
defensa de double jeopardy o legal jeopardy que ha interpuesto.
The defendant renewed his motion for dismissal in the case on the ground of double
jeopardy, but his motion was denied; and upon the termination of the trial the
2. El Juzgado a quo erro al no declarar insuficientes las pruebas de
defendant was found guilty and sentenced as hereinabove stated.
identificacion del acusado apelante.

Whether the defendant was placed in jeopardy for the second time or not when he
3. El Juzgado a quo tambien erro al pasar por alto las incoherencias de los
was tried in the present case depends on whether or not he was tried on a valid
testigos de la acusacion y al no declarar que no se ha establecido fuera de
complaint in the first case. The offense in question was committed on May 9, 1932,
toda duda la responsabilidad del apelante.
or subsequent to the date when the Revised Penal Code became effective.
4. El Juzgado a quo erro al condenar al acusado apelante por el delito de
The third paragraph of the article 344 of the Revised Penal Code, which relates to the
violacion y al no acceder a su mocion de nueva vista.
prosecution of the crimes of adultery, concubinage, seduction, rape and acts of
lasciviousness reads as follows:
It appears that on May 10, 1932, the chief of police of Dumaguete subscribed and
swore to a criminal complaint wherein he charged Pedro Manaba with the crime of
The offenses of seduction, abduction, rape or acts of lasciviousness, shall
rape, committed on the person of Celestina Adapon. This complaint was filed with
not be prosecuted except upon a complaint filed by the offended party or
the justice of the peace of Dumaguete on June 1, 1932 and in due course the case
her parents, grandparents, or guardian, nor, in any case, if the offender has
reached the Court of First Instance. The accused was tried and convicted, but on
been expressly pardoned by the above-named persons, as the case may be.
motion of the attorney for the defendant the judgment was set aside and the case
dismissed on the ground that the court had no jurisdiction over the person of the
The Spanish text of this paragraph is as follows:
 Tampoco puede procederse por causa de estupro, rapto, violacion o abusos
deshonestos, sino en virtud de denuncia de la parte agraviada, o de sus
padres, o abuelos o tutor, ni despues de haberse otorgado al ofensor,
perdon expreso por dicha partes, segun los casos.

It will be observed that the Spanish equivalent of the word "filed" is not found in the
Spanish text, which is controlling, as it was the Spanish text of the Revised Penal Code
that was approved by the Legislature.

The first complaint filed against the defendant was signed and sworn to by the chief
of police of Dumaguete. As it was not the complaint of the offended party, it was not
a valid complaint in accordance with the law. The judgment of the court was
therefore void for lack of jurisdiction over the subject matter, and the defendant was
never in jeopardy.

It might be observed in this connection that the judgment was set aside and the case
dismissed on the motion of defendant's attorney, who subsequently set up the plea
of double jeopardy in the present case.

The other assignments of error relate to the sufficiency of the evidence, which in our
opinion fully sustains the findings of the trial judge.

The recommendation of the Solicitor-General is erroneous in several respects, chiefly

due to the fact that it is based on the decision of July 30, 1932 that was set aside, and
not on the decision now under consideration. The accused should not be ordered to
acknowledge the offspring, if should there be any, because the record shows that the
accused is a married man.

It appears that the lower court should have taken into consideration the aggravating
circumstances of nocturnity. The defendant is therefore sentenced to suffer
seventeen years, four months, and one day of reclusion temporal, to indemnify the
offended party, Celestina Adapon, in the sum of P500, and to support the offspring,
if any. As thus modified, the decision appealed from is affirmed, with the costs of
both instances against the appellant.

Street, Abad Santos, Imperial, and Butte, JJ., concur.

G.R. No. 138962 October 4, 2002
PRESCILLA TUATES and ANDRES DE LA PAZ, petitioners,
vs.
HON. LUCAS P. BERSAMIN, as Presiding Judge, Branch 96, RTC Quezon City,
People of the Philippines and I.C. Construction, Inc., respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
Before us is a petition for review on certiorari under Rule 45 of the Rules of Court,
seeking to annul the following: (1) Decision dated April 30, 1999 and Resolution dated
June 9, 1999, rendered by the Court of Appeals in CA-G.R. SP No. 46845;1 (2) Decision
dated September 10, 1997 and the Order dated January 28, 1998 issued by the
Regional Trial Court of Quezon City (Branch 96) in Criminal Cases Nos. Q-97-70428
and Q-97-70429;2 and (3) Decision dated December 16, 1996 of the Metropolitan
Trial Court of Quezon City (Branch 38) in Criminal Cases Nos. 38-0130 and 38-0131.3
The facts are as follows:
Convicted by the MTC-Quezon City (Branch 38) of the crime of Violation of
Presidential Decree No. 772 or the Anti-Squatting Law, petitioners Prescilla Tuates
and Andres de la Paz, appealed to the RTC of Quezon City (Branch 96). Their
conviction was affirmed in toto by the RTC in its decision dated September 10, 1997.
Pending resolution of their motion for reconsideration, however, Republic Act No.
8368, "An Act Repealing Presidential Decree No. 772, entitled ‘Penalizing Squatting
and Other Similar Acts’" was enacted.
In its Order, dated January 28, 1998, the RTC ruled that only petitioners’ criminal
convictions were extinguished by R.A. 8368, and the civil aspect, i.e., the removal of
petitioners’ illegally constructed house and improvements, shall remain executory
against them.4
On a petition for review, the Court of Appeals sustained the ruling of the RTC and
denied due course to the petition per its Decision, dated April 30, 1999. 5 Petitioners’
motion for reconsideration was likewise denied by the CA in its Resolution dated June
9, 1999.6
Hence, the present recourse taken by petitioners, raising the following issues:
"1. That petitioners, being charged with Violation of Presidential Decree No.
772, the express repeal of said decree absolves the petitioners of any
criminal or civil liability;
"2. That public respondent erred in holding that ‘the civil aspect of the
judgment rendered x x x shall be executory against the accused; and
"3. That the Honorable Court of Appeals, in affirming the Order of the
Regional Trial Court of Quezon City (Branch 96), dated June 9, 1999, grossly
erred in ignoring applicable laws and jurisprudence."7
Petitioners argue that the repeal of P.D. 772 by R.A. 8368 carries with it the extinction
of both the criminal and civil aspects of the crime. Private respondent, however,
insists that public respondents were correct in ruling that only the criminal liability
was absolved and the civil liability remains inasmuch as it was not extinguished in
accordance with Article 113 of the Revised Penal Code, which reads:
"ART. 113. Obligation to satisfy civil liability. -- Except in case of extinction of his civil
liability as provided in the next preceding article, the offender shall continue to be
obliged to satisfy the civil liability resulting from the crime committed by him,
notwithstanding the fact that he has served his sentence consisting of deprivation of
liberty or other rights, or has not been required to serve the same by reason of
amnesty, pardon, commutation of sentence or any other reason."
In its Motion to Deny Due Course, private respondent also argues that the petition
should now be denied as its title to the land subject of this case has already been
adjudged in its favor. 8
In its Comment, the Office of the Solicitor General, in behalf of public respondents,
agrees with petitioners that both the criminal and civil liability were rendered extinct
with the repeal of P.D. 772, and recommended that the assailed issuances be
reversed and set aside.
We find the petition to be meritorious.
Republic Act No. 8368, otherwise known as the "Anti-Squatting Law Repeal Act of
1997," provides:
"SECTION 1. Title. -- This Act shall be known as the ‘Anti-Squatting Law
Repeal Act of 1997.’
 "SEC. 2. Repeal. -- Presidential Decree No. 772, entitled ‘Penalizing Squatting
and Other Similar Acts’ is hereby repealed.
"SEC. 3. Effect on Pending Cases. -- All pending cases under the provisions of
Presidential Decree No. 772 shall be dismissed upon the effectivity of this
Act.
"SEC. 4. Effect on Republic Act No. 7279. -- Nothing herein shall be construed
to nullify, eliminate or diminish in any way Section 27 of Republic Act No.
7279 or any of its provisions relative to sanctions against professional
squatters and squatting syndicates.
"SEC. 5. Effectivity. -- This Act shall take effect thirty (30) days after its
publication in two (2) newspapers of national circulation.
"Approved, October 27, 1997."9
The repeal of P.D. No. 772 under Section 2 of R.A. No. 8368 is explicit, categorical,
definite and absolute. As such, the act that was penalized by P.D. 772, i.e., squatting,
ceases to be criminal under R.A. 8368, and the previous offense is obliterated. 10
In the same vein, the absolute repeal of P.D. 772 has the effect of depriving a court
of its authority to punish a person charged with violation of the old law prior to its
repeal. This is because an unqualified repeal of a penal law constitutes a legislative
act of rendering legal what had been previously declared as illegal, such that the
offense no longer exists and it is as if the person who committed it never did
so.11 Specially so, as in the present case where it is unconditionally stated in Section
3 of R.A. No. 8368 that: "(A)ll pending cases under the provisions of Presidential
Decree No. 772 shall be dismissed upon the effectivity of this Act."12 Obviously, it was
the clear intent of the law to decriminalize or do away with the crime of squatting.
Hence, there being no criminal liability, there is likewise no civil liability because the
latter is rooted in the former. Where an act or omission is not a crime, no person can
be held liable for such act or omission. There being no delict, logically, civil liability ex
delicto is out of the question. 13
In fact, in People v. Leachon, Jr.14 we implicitly recognized the unconditional repeal
of P.D. 772 by R.A. 8368 when we ordered the dismissal of the petition filed in said
case, without any qualification whatsoever, because of the enactment of R.A. 8368,
viz.:
"But the foregoing antecedent facts and proceedings notwithstanding, the petition
cannot now prosper because on October 27, 1997, Republic Act No. 8368, entitled
‘An Act Repealing Presidential Decree No. 772 Entitled ‘Penalizing Squatting and
Other Similar Acts’ was "enacted. Section 3 of the said Act provides that ‘all pending
cases under the provisions of Presidential Decree No. 772 shall be dismissed upon
the effectivity of this Act.’"15
This is not to say, however, that people now have the unbridled license to illegally
occupy lands they do not own. R.A. No. 836816 was unanimously approved by the
members of the Senate of the Philippines present on its third reading. 17 The
legislature considered it a major piece of legislation on the country’s anti-poverty
program18 as it sought to confront the perennial problem of poverty at its root,
abolish an otherwise inutile and oppressive law, and pave the way for a genuine
urban housing and land reform program. Senate records reveal that it is the manifest
intent of the authors of R.A. 8368 to decriminalize squatting but does not encourage
or protect acts of squatting on somebody else’s land. 19 The law is not intended to
compromise the property rights of legitimate landowners.20Recourse may be had in
cases of violation of their property rights, such as those provided for in Republic Act
No. 7279 or the Urban Development and Housing Act, penalizing professional
squatters and squatting syndicates as defined therein, who commit nefarious and
illegal activities21; the Revised Penal Code providing for criminal prosecution in cases
of Trespass to Property,22 Occupation of Real Property or Usurpation of Real Rights
in Property,23 and similar violations, and, cases for Forcible Entry and Unlawful
Detainer under the Rules of Court,24as well as civil liability for Damages under the
Civil Code.
Considering that prosecution for criminal as well as civil liability under P.D. 772 has
been rendered nugatory with the passage of R.A. 8368, both criminal and civil aspects
of Criminal Cases Nos. Q-97-70428 and Q-97-70429 in the RTC as well as Criminal
Cases Nos. 38-0130 and 38-0131 in the MTC filed against petitioners should be
dismissed.
WHEREFORE, finding the petition for review to be with merit, the Decision dated April
30, 1999 of the Court of Appeals in CA-G.R. SP No. 46845, is REVERSED and SET ASIDE.
A new judgment is hereby entered modifying the Decision dated September 10, 1997
of the Regional Trial Court of Quezon City (Branch 96) in Criminal Cases No. Q-97-
70428 and Q-97-70429 and the Decision dated December 16, 1996 issued by the
Metropolitan Trial Court of Quezon City (Branch 38), to the effect that the dismissal
of the aforementioned criminal cases likewise include the dismissal of the civil
aspects thereof, without prejudice to the filing of civil and/or criminal actions under
the prevailing laws.
No costs. SO ORDERED.
Bellosillo, Acting C.J., (Chairman), Quisumbing, and Callejo, Sr., JJ., concur.
Mendoza, J., on official leave.
G.R. No. 125359 September 4, 2001
ROBERTO S. BENEDICTO and HECTOR T. RIVERA, petitioners,
vs.
THE COURT OF APPEALS, HON. GUILLERMO L. LOJA, SR., PRESIDING JUDGE,
REGIONAL TRIAL COURT OF MANILA, BRANCH 26, and PEOPLE OF THE
PHILIPPINES, respondents.
QUISUMBING, J.:
Assailed in this petition is the consolidated decision rendered on May 23, 1996, by
the Court of Appeals in CA-G.R. SP No. 35928 and CA-G.R. SP No. 35719. CA-G.R. SP
No. 35928 had affirmed the order dated September 6, 1994, of the Regional Trial
Court, Manila, Branch 26, insofar as it denied petitioners’ respective Motions to
Quash the Informations in twenty-five (25) criminal cases for violation of Central Bank
Circular No. 960. Therein included were informations involving: (a) consolidated
Criminal Cases Nos. 91-101879 to 91-101883 filed against Mrs. Imelda R. Marcos,
Roberto S. Benedicto, and Hector T. Rivera; (b) consolidated Criminal Cases Nos. 91-
101884 to 91-101892 filed against Mrs. Marcos and Benedicto; and (c) Criminal Cases
Nos. 92-101959 to 92-101969 also against Mrs. Marcos and Benedicto. Note,
however, that the Court of Appeals already dismissed Criminal Case No. 91-101884.
The factual antecedents of the instant petition are as follows:
On December 27, 1991, Mrs. Imelda Marcos and Messrs. Benedicto and Rivera were
indicted for violation of Section 10 of Circular No. 960 1 relation to Section 342 of the
Central Bank Act (Republic Act No. 265, as amended) in five Informations filed with
the Regional Trial Court of Manila. Docketed as Criminal Cases Nos. 91-101879 to 91-
101883, the charge sheets alleged that the trio failed to submit reports of their
foreign exchange earnings from abroad and/or failed to register with the Foreign
Exchange Department of the Central Bank within the period mandated by Circular
No. 960. Said Circular prohibited natural and juridical persons from maintaining
foreign exchange accounts abroad without prior authorization from the Central
Bank.3 It also required all residents of the Philippines who habitually earned or
received foreign currencies from invisibles, either locally or abroad, to report such
earnings or receipts to the Central Bank. Violations of the Circular were punishable
as a criminal offense under Section 34 of the Central Bank Act.
That same day, nine additional Informations charging Mrs. Marcos and Benedicto
with the same offense, but involving different accounts, were filed with the Manila
RTC, which docketed these as Criminal Cases Nos. 91-101884 to 91-101892. The
accusatory portion of the charge sheet in Criminal Case No. 91-101888 reads:
That from September 1, 1983 up to 1987, both dates inclusive, and for
sometime thereafter, both accused, conspiring and confederating with each
other and with the late President Ferdinand E. Marcos, all residents of
Manila, Philippines, and within the jurisdiction of this Honorable Court, did
then and there wilfully, unlawfully and feloniously fail to submit reports in
the prescribed form and/or register with the Foreign Exchange Department
of the Central Bank within 90 days from October 21, 1983 as required of
them being residents habitually/customarily earning, acquiring or receiving
foreign exchange from whatever source or from invisibles locally or from
abroad, despite the fact they actually earned interests regularly every six (6)
months for the first two years and then quarterly thereafter for their
investment of $50-million, later reduced to $25-million in December 1985,
in Philippine-issued dollar denominated treasury notes with floating rates
and in bearer form, in the name of Bank Hofmann, AG, Zuring, Switzerland,
for the benefit of Avertina Foundation, their front organization established
for economic advancement purposes with secret foreign exchange account
Category (Rubric) C.A.R. No. 211925-02 in Swiss Credit Bank (also known as
SKA) in Zurich, Switzerland, which earned, acquired or received for the
accused Imelda Romualdez Marcos and her late husband an interest of
$2,267,892 as of December 16, 1985 which was remitted to Bank Hofmann,
AG, through Citibank, New York, United States of America, for the credit of
said Avertina account on December 19, 1985, aside from the redemption of
$25 million (one-half of the original $50-M) as of December 16, 1985 and
outwardly remitted from the Philippines in the amounts of $7,495,297.49
and $17,489,062.50 on December 18, 1985 for further investment outside
the Philippine without first complying with the Central Bank
reporting/registering requirements.1âwphi1.nêt
CONTRARY TO LAW.4
The other charge sheets were similarly worded except the days of the commission of
the offenses, the name(s) of the alleged dummy or dummies, the amounts in the
foreign exchange accounts maintained, and the names of the foreign banks where
such accounts were held by the accused.
On January 3, 1992, eleven more Informations accusing Mrs. Marcos and Benedicto
of the same offense, again in relation to different accounts, were filed with the same
court, docketed as Criminal Cases Nos. 92-101959 to 92-101969. The Informations
were similarly worded as the earlier indictments, save for the details as to the dates
of the violations of Circular No. 960, the identities of the dummies used, the balances
and sources of the earnings, and the names of the foreign banks where these
accounts were maintained.
All of the aforementioned criminal cases were consolidated before Branch 26 of the
said trial court.
On the same day that Criminal Cases Nos. 92-101959 to 92-101969 were filed, the
Central Bank issued Circular No. 13185 which revised the rules governing non-trade
foreign exchange transactions. It took effect on January 20, 1992.
On August 24, 1992, the Central Bank, pursuant to the government’s policy of further
liberalizing foreign exchange transactions, came out with Circular No. 1356,6 which
amended Circular No. 1318. Circular No. 1353 deleted the requirement of prior
Central Bank approval for foreign exchange-funded expenditures obtained from the
banking system.
Both of the aforementioned circulars, however, contained a saving clause, excepting
from their coverage pending criminal actions involving violations of Circular No. 960
and, in the case of Circular No. 1353, violations of both Circular No. 960 and Circular
No. 1318.
On September 19, 1993, the government allowed petitioners Benedicto and Rivera
to return to the Philippines, on condition that they face the various criminal charges
instituted against them, including the dollar-salting cases. Petitioners posted bail in
the latter cases.
On February 28, 1994, petitioners Benedicto and Rivera were arraigned. Both
pleaded not guilty to the charges of violating Central Bank Circular No. 960. Mrs.
Marcos had earlier entered a similar plea during her arraignment for the same
offense on February 12, 1992.
On August 11, 1994, petitioners moved to quash all the Informations filed against
them in Criminal Cases Nos. 91-101879 to 91-101883; 91-101884 to 91-101892, and
91-101959 to 91-101969. Their motion was grounded on lack of jurisdiction, forum
shopping, extinction of criminal liability with the repeal of Circular No. 960,
prescription, exemption from the Central Bank’s reporting requirement, and the
grant of absolute immunity as a result of a compromise agreement entered into with
the government.
On September 6, 1994, the trial court denied petitioners’ motion. A similar motion
filed on May 23, 1994 by Mrs. Marcos seeking to dismiss the dollar-salting cases
against her due to the repeal of Circular No. 960 had earlier been denied by the trial
court in its order dated June 9, 1994. Petitioners then filed a motion for
reconsideration, but the trial court likewise denied this motion on October 18, 1994.
On November 21, 1994, petitioners moved for leave to file a second motion for
reconsideration. The trial court, in its order of November 23, 1994, denied
petitioners’ motion and set the consolidated cases for trial on January 5, 1995.
Two separate petitions for certiorari and prohibition, with similar prayers for
temporary restraining orders and/or writs of preliminary injunction, docketed as CA-
G.R. SP No. 35719 and CA-G.R. SP No. 35928, were respectively filed by Mrs. Marcos
and petitioners with the Court of Appeals. Finding that both cases involved violations
of Central Bank Circular No. 960, the appellate court consolidated the two cases.
On May 23, 1996, the Court of Appeals disposed of the consolidated cases as follows:
WHEREFORE, finding no grave abuse of discretion on the part of respondent
Judge in denying petitioners’ respective Motions to Quash, except that with
respect to Criminal Case No. 91-101884, the instant petitions are hereby
DISMISSED for lack of merit. The assailed September 6, 1994 Order, in so far
as it denied the Motion to Quash Criminal Case No. 91-101884 is hereby
nullified and set aside, and said case is hereby dismissed. Costs against
petitioners.
SO ORDERED.7
Dissatisfied with the said decision of the court a quo, except with respect to the
portion ordering the dismissal of Criminal Case No. 91-101884, petitioners filed the
instant petition, attributing the following errors to the appellate court:
THAT THE COURT ERRED IN NOT FINDING THAT THE INFORMATIONS/CASES
FILED AGAINST PETITIONERS-APPELLANTS ARE QUASHABLE BASED ON THE
FOLLOWING GROUNDS:
(A) LACK OF JURISDICTION/FORUM SHOPPING/NO VALID
PRELIMINARY INVESTIGATION
(B) EXTINCTION OF CRIMINAL LIABILITY
1) REPEAL OF CB CIRCULAR NO. 960 BY CB CIRCULAR NO.
153;
2) REPEAL OF R.A. 265 BY R.A. 76538
(C) PRESCRIPTION
 (D) EXEMPTION FROM CB REPORTING REQUIREMENT
GRANT OF ABSOLUTE IMMUNITY.9
Simply stated, the issues for our resolution are:
(1) Did the Court of Appeals err in denying the Motion to Quash for lack of
jurisdiction on the part of the trial court, forum shopping by the prosecution,
and absence of a valid preliminary investigation?
(2) Did the repeal of Central Bank Circular No. 960 and Republic Act No. 265
by Circular No. 1353 and Republic Act No. 7653 respectively, extinguish the
criminal liability of petitioners?
(3) Had the criminal cases in violation of Circular No. 960 already prescribed?
(4) Were petitioners exempted from the application and coverage of Circular
No. 960?
(5) Were petitioners’ alleged violations of Circular No. 960 covered by the
absolute immunity granted in the Compromise Agreement of November 3,
1990?
On the first issue, petitioners assail the jurisdiction of the Regional Trial Court. They
aver that the dollar-salting charges filed against them were violations of the Anti-
Graft Law or Republic Act No. 3019, and the Sandiganbayan has original and exclusive
jurisdiction over their cases.
Settled is the rule that the jurisdiction of a court to try a criminal case is determined
by the law in force at the time the action is instituted. 10 The 25 cases were filed in
1991-92. The applicable law on jurisdiction then was Presidential Decree
1601.11 Under P.D. No. 1606, offenses punishable by imprisonment of not more than
six years fall within the jurisdiction of the regular trial courts, not the
Sandiganbayan.12
In the instant case, all the Informations are for violations of Circular No. 960 in
relation to Section 34 of the Central Bank Act and not, as petitioners insist, for
transgressions of Republic Act No. 3019. Pursuant to Section 34 of Republic Act No.
265, violations of Circular No. 960 are punishable by imprisonment of not more than
five years and a fine of not more than P20,000.00. Since under P.D. No. 1606 the
Sandiganbayan has no jurisdiction to try criminal cases where the imposable penalty
is less than six years of imprisonment, the cases against petitioners for violations of
Circular No. 960 are, therefore cognizable by the trial court. No error may thus be
charged to the Court of Appeals when it held that the RTC of Manila had jurisdiction
to hear and try the dollar-salting cases.
Still on the first issue, petitioners next contend that the filing of the cases for
violations of Circular No. 960 before the RTC of Manila Constitutes forum shopping.
Petitioners argue that the prosecution, in an attempt to seek a favorable verdict from
more than one tribunal, filed separate cases involving virtually the same offenses
before the regular trial courts and the Sandiganbayan. They fault the prosecution
with splitting the cases. Petitioners maintain that while the RTC cases refer only to
the failure to report interest earnings on Treasury Notes, the Sandiganbayan cases
seek to penalize the act of receiving the same interest earnings on Treasury Notes in
violation of the Anti-Graft Law’s provisions on prohibited transactions. Petitioners
aver that the violation of Circular No. 960 is but an element of the offense of
prohibited transactions punished under Republic Act No. 3019 and should, thus, be
deemed absorbed by the prohibited transactions cases pending before the
Sandiganbayan.
For the charge of forum shopping to prosper, there must exist between an action
pending in one court and another action pending in one court and another action
before another court: (a) identity of parties, or at least such parties as represent the
same interests in both actions; (b) identity of rights asserted and relief prayed for,
the relief being founded on the same facts; and (c) the identity of the two preceding
particulars is such that any judgment rendered in the other action will, regardless of
which party is successful, amount to res judicata in the action under
consideration.13 Here, we find that the single act of receiving unreported interest
earnings on Treasury Notes held abroad constitutes an offense against two or more
distinct and unrelated laws, Circular No. 960 and R.A. 3019. Said laws define distinct
offenses, penalize different acts, and can be applied independently.14 Hence, no fault
lies at the prosecution’s door for having instituted separate cases before separate
tribunals involving the same subject matter.
With respect to the RTC cases, the receipt of the interest earnings violate Circular No.
960 in relation to Republic Act No. 265 because the same was unreported to the
Central Bank. The act to be penalized here is the failure to report the interest
earnings from the foreign exchange accounts to the proper authority. As to the anti-
graft cases before the Sandiganbayan involving the same interest earnings from the
same foreign exchange accounts, the receipt of the interest earnings transgresses
Republic Act No. 3019 because the act of receiving such interest is a prohibited
transaction prejudicial to the government. What the State seeks to punish in these
anti-graft cases is the prohibited receipt of the interest earnings. In sum, there is no
identity of offenses charged, and prosecution under one law is not an obstacle to a
prosecution under the other law. There is no forum shopping.
Finally, on the first issue, petitioners contend that the preliminary investigation by
the Department of Justice was invalid and in violation of their rights to due process.
Petitioners argue that government’s ban on their travel effectively prevented them
from returning home and personally appearing at the preliminary investigation.
Benedicto and Rivera further point out that the joint preliminary investigation by the
Department of Justice, resulted to the charges in one set of cases before the
Sandiganbayan for violations of Republic Act No. 3019 and another set before the
RTC for violation of Circular No. 960.
Preliminary investigation is not part of the due process guaranteed by the
Constitution.15 It is an inquiry to determine whether there is sufficient ground to
engender a well-founded belief that a crime has been committed and the respondent
is probably guilty thereof.16 Instead, the right to a preliminary investigation is
personal. It is afforded to the accused by statute, and can be waived, either expressly
or by implication.17 The waiver extends to any irregularity in the preliminary
investigation, where one was conducted.
The petition in the present case contains the following admissions:
1. Allowed to return to the Philippines on September 19, 1993 … on the
condition that he face the criminal charges pending in courts, petitioner-
appellant Benedicto, joined by his co-petitioner Rivera, lost no time in
attending to the pending criminal charges by posting bail in the above-
mentioned cases.
2. Not having been afforded a real opportunity of attending the preliminary
investigation because of their forced absence from the Philippines then,
petitioners-appellants invoked their right to due process thru motions for
preliminary investigation … Upon denial of their demands for preliminary
investigation, the petitioners intended to elevate the matter to the
Honorable Court of Appeals and actually caused the filing of a petition for
certiorari/prohibition sometime before their arraignment but immediately
caused the withdrawal thereof … in view of the prosecution’s willingness to
go to pre-trial wherein petitioner would be allowed access to the records of
preliminary investigation which they could use for purposes of filing a
motion to quash if warranted.
3. Thus, instead of remanding the Informations to the Department of Justice
… respondent Judge set the case for pre-trial in order to afford all the
accused access to the records of prosecution…
xxx
5. On the basis of disclosures at the pre-trial, the petitioners-appellants
Benedicto and Rivera moved for the quashing of the informations/cases… 18
The foregoing admissions lead us to conclude that petitioners have expressly waived
their right to question any supposed irregularity in the preliminary investigation or to
ask for a new preliminary investigation. Petitioners, in the above excerpts from this
petition, admit posting bail immediately following their return to the country,
entered their respective pleas to the charges, and filed various motions and
pleadings. By so doing, without simultaneously demanding a proper preliminary
investigation, they have waived any and all irregularities in the conduct of a
preliminary investigation.19 The trial court did not err in denying the motion to quash
the informations on the ground of want of or improperly conducted preliminary
investigation. The absence of a preliminary investigation is not a ground to quash the
information.20
On the second issue, petitioners contend that they are being prosecuted for acts
punishable under laws that have already been repealed. They point to the express
repeal of Central Bank Circular No. 960 by Circular Nos. 1318 and 1353 as well as the
express repeal of Republic Act No. 265 by Republic Act No. 7653. Petitioners, relying
on Article 22 of the Revised Penal Code, 21 contend that repeal has the effect of
extinguishing the right to prosecute or punish the offense committed under the old
laws.22
As a rule, an absolute repeal of a penal law has the effect of depriving a court of its
authority to punish a person charged with violation of the old law prior to its
repeal.23 This is because an unqualified repeal of a penal law constitutes a legislative
act of rendering legal what had been previously declared as illegal, such that the
offense no longer exists and it is as if the person who committed it never did so. There
are, however, exceptions to the rule. One is the inclusion of a saving clause in the
repealing statute that provides that the repeal shall have no effect on pending
actions.24 Another exception is where the repealing act reenacts the former statute
and punishes the act previously penalized under the old law. In such instance, the act
committed before the reenactment continues to be an offense in the statute books
and pending cases are not affected, regardless of whether the new penalty to be
imposed is more favorable to the accused. 25
In the instant case, it must be noted that despite the repeal of Circular No. 960,
Circular No. 1353 retained the same reportorial requirement for residents receiving
earnings or profits from non-trade foreign exchange transactions.26Second, even the
most cursory glance at the repealing circulars, Circular Nos. 1318 and 1353 shows
that both contain a saving clause, expressly providing that the repeal of Circular No.
960 shall have no effect on pending actions for violation of the latter Circular. 27 A
saving clause operates to except from the effect of the repealing law what would
otherwise be lost under the new law.28 In the present case, the respective saving
clauses of Circular Nos. 1318 and 1353 clearly manifest the intent to reserve the right
of the State to prosecute and punish offenses for violations of the repealed Circular
No. 960, where the cases are either pending or under investigation.
Petitioners, however, insist that the repeal of Republic Act No. 265, particularly
Section 34,29 by Republic Act No. 7653, removed the applicability of any special
sanction for violations of any non-trade foreign exchange transactions previously
penalized by Circular No. 960. Petitioners posit that a comparison of the two
provisions shows that Section 3630 of Republic Act No. 7653 neither retained nor
reinstated Section 34 of Republic Act No. 265. Since, in creating the Bangko Sentral
ng Pilipinas, Congress did not include in its charter a clause providing for the
application of Section 34 of Republic Act No. 265 to pending cases, petitioners’
pending dollar-salting cases are now bereft of statutory penalty, the saving clause in
Circular No. 1353 notwithstanding. In other words, absent a provision in Republic Act
No. 7653 expressly reviving the applicability of any penal sanction for the repealed
mandatory foreign exchange reporting regulations formerly required under Circular
No. 960, violations of aforesaid repealed Circular can no longer be prosecuted
criminally.
A comparison of the old Central Bank Act and the new Bangko Sentral’s charter
repealing the former show that in consonance with the general objective of the old
law and the new law "to maintain internal and external monetary stability in the
Philippines and preserve the international value of the peso,"31 both the repealed law
and the repealing statute contain a penal cause which sought to penalize in general,
violations of the law as well as orders, instructions, rules, or regulations issued by the
Monetary Board. In the case of the Bangko Sentral, the scope of the penal clause was
expanded to include violations of "other pertinent banking laws enforced or
implemented by the Bangko Sentral." In the instant case, the acts of petitioners
sought to be penalized are violations of rules and regulations issued by the Monetary
Board. These acts are proscribed and penalized in the penal clause of the repealed
law and this proviso for proscription and penalty was reenacted in the repealing law.
We find, therefore, that while Section 34 of Republic Act No. 265 was repealed, it was
nonetheless, simultaneously reenacted in Section 36 of Republic Act No. 7653. Where
a clause or provision or a statute for the matter is simultaneously repealed and
reenacted, there is no effect, upon the rights and liabilities which have accrued under
the original statute, since the reenactment, in effect "neutralizes" the repeal and
continues the law in force without interruption.32 The rule applies to penal laws and
statutes with penal provisions. Thus, the repeal of a penal law or provision, under
which a person is charged with violation thereof and its simultaneous reenactment
penalizing the same act done by him under the old law, will neither preclude the
accused’s prosecution nor deprive the court of its jurisdiction to hear and try his
case.33 As pointed out earlier, the act penalized before the reenactment continues to
remain an offense and pending cases are unaffected. Therefore, the repeal of
Republic Act No. 265 by Republic Act No. 7653 did not extinguish the criminal liability
of petitioners for transgressions of Circular No. 960 and cannot, under the
circumstances of this case, be made a basis for quashing the indictments against
petitioners.
Petitioners, however, point out that Section 36 of Republic Act No. 7653, in
reenacting Section 34 of the old Central Act, increased the penalty for violations of
rules and regulations issued by the Monetary Board. They claim that such increase in
the penalty would give Republic Act No. 7653 an ex post facto application, violating
the Bill of Rights.34
Is Section 36 of Republic Act No. 7653 and ex post facto legislation?
An ex post facto law is one which: (1) makes criminal an act done before the passage
of the law and which was innocent when done, and punishes such an act; (2)
aggravates a crime, or makes it greater than it was when committed; (3) changes the
punishment and inflicts a greater punishment than the law annexed to the crime
when committed; (4) alters the legal rules of evidence, and authorizes conviction
upon less or different testimony than the law required at the time of the commission
of the offense; (5) assuming to regulate civil rights, and remedies only, in effect
imposes penalty or deprivation of a right for something which when done was lawful;
and (6) deprives a person accused of a crime of some lawful protection to which he
has become entitled such as the protection of a former conviction or acquittal, or a
proclamation of amnesty.35
The test whether a penal law runs afoul of the ex post facto clause of the Constitution
is: Does the law sought to be applied retroactively take "from an accused any right
that was regarded at the time of the adoption of the constitution as vital for the
protection of life and liberty and which he enjoyed at the time of the commission of
the offense charged against him."36
The crucial words in the test are "vital for the protection of life and liberty."37 We
find, however, the test inapplicable to the penal clause of Republic Act No. 7653.
Penal laws and laws which, while not penal in nature, nonetheless have provisions
defining offenses and prescribing penalties for their violation operate
prospectively.38 Penal laws cannot be given retroactive effect, except when they are
favorable to the accused.39 Nowhere in Republic Act No. 7653, and in particular
Section 36, is there any indication that the increased penalties provided therein were
intended to operate retroactively. There is, therefore, no ex post facto law in this
case.
On the third issue, petitioners ask us to note that the dollar interest earnings subject
of the criminal cases instituted against them were remitted to foreign banks on
various dates between 1983 to 1987. They maintain that given the considerable lapse
of time from the dates of the commission of the offenses to the institution of the
criminal actions in 1991 and 1992, the State’s right to prosecute them for said
offenses has already prescribed. Petitioners assert that the Court of Appeals erred in
computing the prescriptive period from February 1986. Petitioners theorize that
since the remittances were made through the Central Bank as a regulatory authority,
the dates of the alleged violations are known, and prescription should thus be
counted from these dates.
In ruling that the dollar-salting cases against petitioners have not yet prescribed, the
court a quo quoted with approval the trial court’s finding that:
[T]he alleged violations of law were discovered only after the EDSA
Revolution in 1986 when the dictatorship was toppled down. The date of
the discovery of the offense, therefore, should be the basis in computing the
prescriptive period. Since (the) offenses charged are punishable by
imprisonment of not more than five (5) years, they prescribe in eight (8)
years. Thus, only a little more than four (4) years had elapsed from the date
of discovery in 1986 when the cases were filed in 1991. 40
The offenses for which petitioners are charged are penalized by Section 34 of
Republic Act No. 265 "by a fine of not more than Twenty Thousand Pesos
(P20,000.00) and by imprisonment of not more than five years." Pursuant to Act No.
3326, which mandates the periods of prescription for violations of special laws, the
prescriptive period for violations of Circular No. 960 is eight (8) years. 41 The period
shall commence "to run from the day of the commission of the violation of the
law, and if the same be not known at the time, from the discovery thereof and
institution of judicial proceedings for its investigation and punishment."42 In the
instant case, the indictments against petitioners charged them with having conspired
with the late President Ferdinand E. Marcos in transgressing Circular No. 960.
Petitioners’ contention that the dates of the commission of the alleged violations
were known and prescription should be counted from these dates must be viewed in
the context of the political realities then prevailing. Petitioners, as close associates of
Mrs. Marcos, were not only protected from investigation by their influence and
connections, but also by the power and authority of a Chief Executive exercising
strong-arm rule. This Court has taken judicial notice of the fact that Mr. Marcos, his
family, relations, and close associates "resorted to all sorts of clever schemes and
manipulations to disguise and hide their illicit acquisitions."43 In the instant case,
prescription cannot, therefore, be made to run from the dates of the commission of
those offenses were not known as of those dates. It was only after the EDSA
Revolution of February, 1986, that the recovery of ill-gotten wealth became a highly
prioritized state policy,44 pursuant to the explicit command of the Provisional
Constitution.45 To ascertain the relevant facts to recover "ill-gotten properties
amassed by the leaders and supporters of the (Marcos) regime"46 various
government agencies were tasked by the Aquino administration to investigate, and
as the evidence on hand may reveal, file and prosecute the proper cases. Applying
the presumption "that official duty has been regularly performed", 47 we are more
inclined to believe that the violations for which petitioners are charged were
discovered only during the post-February 1986 investigations and the tolling of the
prescriptive period should be counted from the dates of discovery of their
commission. The criminal actions against petitioners, which gave rise to the instant
case, were filed in 1991 and 1992, or well within the eight-year prescriptive period
counted from February 1986.
The fourth issue involves petitioners’ claim that they incurred no criminal liability for
violations of Circular No. 960 since they were exempted from its coverage.
Petitioners postulate that since the purchases of treasury notes were done through
the Central Bank’s Securities Servicing Department and payments of the interest
were coursed through its Securities Servicing Department/Foreign Exchange
Department, their filing of reports would be surplusage, since the requisite
information were already with the Central Bank. Furthermore, they contend that the
foreign currency investment accounts in the Swiss banks were subject to absolute
confidentiality as provided for by Republic Act No. 6426, 48 as amended by
Presidential Decree Nos. 1035, 1246, and 1453, and fell outside the ambit of the
reporting requirements imposed by Circular No. 960. Petitioners further rely on the
exemption from reporting provided for in Section 10(q), 49 Circular No. 960, and the
confidentiality granted to Swiss bank accounts by the laws of Switzerland.
Petitioners correctly point out that Section 10(q) of Circular No. 960 exempts from
the reporting requirement foreign currency eligible for deposit under the Philippine
Foreign Exchange Currency Deposit System, pursuant to Republic Act No. 6426, as
amended. But, in order to avail of the aforesaid exemption, petitioners must show
that they fall within its scope. Petitioners must satisfy the requirements for eligibility
imposed by Section 2, Republic Act No. 6426.50 Not only do we find the record bare
of any proof to support petitioners’ claim of falling within the coverage of Republic
Act No. 6426, we likewise find from a reading of Section 2 of the Foreign Currency
Deposit Act that said law is inapplicable to the foreign currency accounts in question.
Section 2, Republic Act No. 6426 speaks of "deposit with such Philippine banks in
good standing, as may…be designated by the Central Bank for the purpose." 51 The
criminal cases filed against petitioners for violation of Circular No. 960 involve foreign
currency accounts maintained in foreign banks, not Philippine banks. By invoking the
confidentiality guarantees provided for by Swiss banking laws, petitioners admit such
reports made. The rule is that exceptions are strictly construed and apply only so far
as their language fairly warrants, with all doubts being resolved in favor of the
general proviso rather than the exception.52 Hence, petitioners may not claim
exemption under Section 10(q).
With respect to the banking laws of Switzerland cited by petitioners, the rule is that
Philippine courts cannot take judicial notice of foreign laws. 53 Laws of foreign
jurisdictions must be alleged and proved.54 Petitioners failed to prove the Swiss law
relied upon, either by: (1) an official publication thereof; or (2) a copy attested by the
officer having the legal custody of the record, or by his deputy, and accompanied by
a certification from the secretary of the Philippine embassy or legation in such
country or by the Philippine consul general, consul, vice-consul, or consular agent
stationed in such country, or by any other authorized officer in the Philippine foreign
service assigned to said country that such officer has custody. 55 Absent such
evidence, this Court cannot take judicial cognizance of the foreign law invoked by
Benedicto and Rivera.
Anent the fifth issue, petitioners insist that the government granted them absolute
immunity under the Compromise Agreement they entered into with the government
on November 3, 1990. Petitioners cite our decision in Republic v. Sandiganbayan, 226
SCRA 314 (1993), upholding the validity of the said Agreement and directing the
various government agencies to be consistent with it. Benedicto and Rivera now insist
that the absolute immunity from criminal investigation or prosecution granted to
petitioner Benedicto, his family, as well as to officers and employees of firms owned
or controlled by Benedicto under the aforesaid Agreement covers the suits filed for
violations of Circular No. 960, which gave rise to the present case.
The pertinent provisions of the Compromise Agreement read:
WHEREAS, this Compromise Agreement covers the remaining claims and the
cases of the Philippine Government against Roberto S. Benedicto including
his associates and nominees, namely, Julita C. Benedicto, Hector T. Rivera, x
xx
WHEREAS, specifically these claims are the subject matter of the following
cases (stress supplied):
1. Sandiganbayan Civil Case No. 9
2. Sandiganbayan Civil Case No. 24
3. Sandiganbayan Civil Case No. 34
4. Tanodbayan (Phil-Asia)
5. PCGG I.S. No. 1.
xxx
WHEREAS, following the termination of the United States and Swiss cases,
and also without admitting the merits of their respective claims and
counterclaims presently involved in uncertain, protracted and expensive
litigation, the Republic of the Philippines, solely motivated by the desire for
the immediate accomplishment of its recovery mission and Mr. Benedicto
being interested to lead a peaceful and normal pursuit of his endeavors, the
parties have decided to withdraw and/or dismiss their mutual claims and
counterclaims under the cases pending in the Philippines, earlier referred
to (underscoring supplied);
xxx
II. Lifting of Sequestrations, Extension of Absolute Immunity and Recognition
of the Freedom to Travel
a) The Government hereby lifts the sequestrations over the assets listed in
Annex "C" hereof, the same being within the capacity of Mr. Benedicto to
acquire from the exercise of his profession and conduct of business, as well
as all the haciendas listed in his name in Negro Occidental, all of which were
inherited by him or acquired with income from his inheritance…and all the
other sequestered assets that belong to Benedicto and his
corporation/nominees which are not listed in Annex "A" as ceded or to be
ceded to the Government.
Provided, however, (that) any asset(s) not otherwise settled or covered by
this Compromise Agreement, hereinafter found and clearly established with
finality by proper competent court as being held by Mr. Roberto S.
Benedicto in trust for the family of the late Ferdinand E. Marcos, shall be
returned or surrendered to the Government for appropriate custody and
disposition.
b) The Government hereby extends absolute immunity, as authorized under
the pertinent provisions of Executive Orders Nos. 1, 2, 14 and 14-A, to
Benedicto, the members of his family, officers and employees of his
corporations above mentioned, who are included in past, present and future
cases and investigations of the Philippine Government, such that there shall
be no criminal investigation or prosecution against said persons for acts (or)
 omissions committed prior to February 25, 1986, that may be alleged to
have violated any laws, including but not limited to Republic Act No. 3019,
in relation to the acquisition of any asset treated, mentioned or included in
this Agreement.lawphil.net
x x x56
In construing contracts, it is important to ascertain the intent of the parties by looking
at the words employed to project their intention. In the instant case, the parties
clearly listed and limited the applicability of the Compromise Agreement to the cases
listed or identified therein. We have ruled in another case involving the same
Compromise Agreement that:
[T]he subject matters of the disputed compromise agreement are
Sandiganbayan Civil Case No. 0009, Civil Case No. 00234, Civil Case No. 0034,
the Phil-Asia case before the Tanodbayan and PCGG I.S. No. 1. The cases
arose from complaints for reconveyance, reversion, accounting, restitution,
and damages against former President Ferdinand E. Marcos, members of his
family, and alleged cronies, one of whom was respondent Roberto S.
Benedicto.57
Nowhere is there a mention of the criminal cases filed against petitioners for
violations of Circular No. 960. Conformably with Article 1370 of the Civil Code, 58 the
Agreement relied upon by petitioners should include only cases specifically
mentioned therein. Applying the parol evidence rule, 59 where the parties have
reduced their agreement into writing, the contents of the writing constitute the sole
repository of the terms of the agreement between the parties. 60 Whatever is not
found in the text of the Agreement should thus be construed as waived and
abandoned.61 Scrutiny of the Compromise Agreement will reveal that it does not
include all cases filed by the government against Benedicto, his family, and
associates.
by petitioners for violations of Circular No. 960. A contract cannot be construed to
include matters distinct from those with respect to which the parties intended to
contract.64
In sum, we find that no reversible error of law may be attributed to the Court of
Appeals in upholding the orders of the trial court denying petitioners’ Motion to
Quash the Informations in Criminal Case Nos. 91-101879 to 91-101883, 91-101884 to
91-101892, and 92-101959 to 92-101969. In our view, none of the grounds provided
for in the Rules of Court65 upon which petitioners rely, finds applications in this case.
On final matter. During the pendency of this petition, counsel for petitioner Roberto
S. Benedicto gave formal notice to the Court that said petitioner died on May 15,
2000. The death of an accused prior to final judgment terminates his criminal liability
as well as the civil liability based solely thereon.66
WHEREFORE, the instant petition is DISMISSED. The assailed consolidated Decision
of the Court of Appeals dated May 23, 1996, in CA-G.R. SP No. 35928 and CA G.R. SP
No. 35719, is AFFIRMED WITH MODIFICATION that the charges against deceased
petitioner, Roberto S. Benedicto, particularly in Criminal Cases Nos. 91-101879 to 91-
101883, 91-101884 to 101892, and 92-101959 to 92-101969, pending before the
Regional Trial Court of Manila, Branch 26, are ordered dropped and that any criminal
as well as civil liability ex delicto that might be attributable to him in the aforesaid
cases are declared extinguished by reason of his death on May 15, 2000. No
pronouncement as to costs. SO ORDERED.
Bellosillo, Mendoza, Buena, and De Leon, Jr., JJ., concur.

Additionally, the immunity covers only "criminal investigation or prosecution against

said persons for acts (or) omissions committed prior to February 25, 1986 that may
be alleged to have violated any penal laws, including but not limited to Republic Act
No. 3019, in relation to the acquisition of any asset treated, mentioned, or included
in this Agreement."62 It is only when the criminal investigation or case involves the
acquisition of any ill-gotten wealth "treated mentioned, or included in this
Agreement"63 that petitioners may invoke immunity. The record is bereft of any
showing that the interest earnings from foreign exchange deposits in banks abroad,
which is the subject matter of the present case, are "treated, mentioned, or included"
in the Compromise Agreement. The phraseology of the grant of absolute immunity
in the Agreement precludes us from applying the same to the criminal charges faced