G.R. No.

170288 September 22, 2006

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

This Petition for Certiorari under Rule 65 of the Rules of Court assails the
Memorandum1 dated April 28, 2004 of the Office of the Special Prosecutor, Office of the
Ombudsman, recommending that petitioners be charged with violation of Section 3(e) of
Republic Act (R.A.) No. 3019 and petitioner Pedro E. Budiongan with violation of Section 3(h)
of R.A. No. 3019. Also assailed is the Resolution2 dated October 19, 2005 denying petitioners'
motion for reconsideration.
The antecedent facts are as follows:
By virtue of Municipal Ordinance No. 2, series of 2001, the Municipality of Carmen,
Bohol appropriated the amount of P450,000.00 for the purchase of a road roller for the
municipality. However, on November 16, 2001, the Municipal Development Council through
Resolution No. 3 recommended that the amount of P450,000.00 be realigned and used for the
asphalt laying of a portion of the Tan Modesto Bernaldez Street.3 The proposed realignment was
included in the December 21, 2001 agenda of the Sangguniang Bayan of Carmen but discussion
thereon was deferred.
On February 6, 2002, petitioner Municipal Treasurer, Fulgencio V. Paña, issued a
Certificate of Availability of Funds for the project. Thereafter, the Office of the Municipal
Engineer prepared a Program of Works and Cost Estimates duly noted/approved by Municipal
Budget Officer Taciana B. Espejo and Mayor Budiongan.
Bidding was conducted on March 5, 2002. The next day, March 6, 2002, Mayor
Budiongan issued the Notice of Award and Notice to Commence Work in favor of Herbert
Malmis General Merchandise and Contractor, Inc. who emerged as the lowest complying bidder.
On March 22, 2002, the Sangguniang Bayan passed Resolution No. 60,4 series of 2002,
authorizing Mayor Budiongan to sign and enter into contract with Malmis relative to the above
project in the amount of P339,808.00. With such authority, Malmis commenced with the project.
Thereafter, it was discovered that there was yet no ordinance approving the realignment
of the funds. Thus, on May 17, 2002, the Sangguniang Bayan passed Ordinance No. 8,5 series of
2002, approving the realignment of the fund. On June 14, 2002, Malmis was paid the contract
price.
On July 3, 2002, private respondents Arlene P. Palgan and Valeriano U. Nadala filed a
complaint6 against the petitioners before the Office of the Deputy Ombudsman for Visayas
alleging illegality in the conduct of the bidding, award and notice to commence work since there
was no fund appropriated for the purpose.
On July 31, 2003, the Office of the Deputy Ombudsman for Visayas found probable
cause and recommended the filing of an information for violation of Article 2207 of the Revised
Penal Code against the petitioners. However, the complaint against Hermosila Logrono,
Desiderio Gudia, Jr. and Herbert Malmis was dismissed for lack of merit.8
Upon review, the Case Assessment, Review and Reinvestigation Bureau of the Office of
the Special Prosecutor, issued the assailed Memorandum dated April 28, 2004, modifying the
charge from violation of Article 220 of the Revised Penal Code to (1) violation of Section 3(e) of
R.A. No. 3019 against petitioners for allegedly giving unwarranted benefit to Malmis and (2)
violation of Section 3(h) of R.A. No. 3019 against petitioner Budiongan for allegedly "directly or
indirectly having financial or pecuniary interest in a contract or transaction in connection with
which he intervenes or takes part in his official capacity."
Thus, two separate Informations were filed before the Sandiganbayan (1) for violation of
Section 3(e) of R.A. No. 3019 against the petitioners docketed as Criminal Case No. 28075 and
(2) for violation of Section 3(h) of R.A. No. 3019 against petitioner Budiongan docketed as
Criminal Case No. 28076.
Thereafter, petitioners filed a Motion to Quash9 the information charging them with
violation of Sec. 3(e) of R.A. No. 3019. In a Resolution10 dated June 10, 2005, the
Sandiganbayan granted the motion to quash and remanded Criminal Case No. 28075 to the
Office of the Ombudsman for amendment of the Information. It held that although Malmis
benefited from the contract, the same is not unwarranted considering that the project was
implemented, executed and completed.
On June 27, 2005, an Amended Information11 was filed charging petitioners with
violation of Sec. 3(e) of R.A. No. 3019, alleging that petitioners, by prematurely awarding to
Malmis the project despite the absence of funds specifically appropriated for such purpose, and
thereafter paying the contract price from the Municipal Treasury which was originally
appropriated for the purchase of a road roller, caused damage and undue injury to the
government.
Finding that the Amended Information contains all the material averments necessary to
make out a case for the first mode of violating Section 3(e) of R.A. No. 3019, i.e., causing any
undue injury to any party, including the government, the Sandiganbayan admitted the Amended
Information in its Resolution dated August 18, 2005.12
On even date, petitioners filed with the Sandiganbayan a Motion for Leave of Court to
File Motion for Reinvestigation13 arguing that the above Informations were filed without
affording them the opportunity to file counter-affidavits to answer/rebut the modified charges.
On September 20, 2005, the Sandiganbayan issued a Resolution14 denying the motion insofar as
Criminal Case No. 28076 is concerned. It held that it is too late in the day to remand the case for
reinvestigation considering that Budiongan had already been arraigned and the case had long
been set for pre-trial proceedings, with both parties having filed their respective briefs. As
regards Criminal Case No. 28075, the Sandiganbayan noted that although the conduct of the
preliminary investigation was regular, petitioners however were not given the opportunity to seek
reconsideration of the modified charges. Thus, it granted leave to the petitioners to file with the
Office of the Special Prosecutor a motion for reconsideration (not a motion for reinvestigation)
of the said office's Memorandum dated April 28, 2004.
Petitioners filed a Motion for Reconsideration with the Office of the Special Prosecutor
which was denied for lack of merit in the Resolution dated October 19, 2005.
Hence, this petition raising the following issues:
I. WHETHER PUBLIC RESPONDENTS ACTED WITH GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR IN EXCESS OF JURISDICTION IN
REJECTING THE FINDINGS AND AMENDING/MODIFYING THE RESOLUTION OF THE
GRAFT INVESTIGATING OFFICER, OMBUDSMAN VISAYAS, AND IN FILING THE
INFORMATION FOR VIOLATION OF SEC. 3(e) OF RA 3019 WITHOUT AFFORDING
PETITIONERS THE OPPORTUNITY TO PRESENT THEIR COUNTER EVIDENCE IN A
RE-INVESTIGATION;
II. WHETHER THE REFUSAL OR FAILURE TO CONDUCT A RE-INVESTIGATION
HAS VIOLATED PETITIONERS' RIGHT TO DUE PROCESS;
III. WHETHER PUBLIC RESPONDENTS ACTED WITH GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR IN EXCESS OF JURISDICTION IN ISSUING
RESOLUTIONS DATED APRIL 28, 2004 AND OCTOBER 19, 2005 FINDING PROBABLE
CAUSE FOR VIOLATION OF SEC. 3(e) OF RA 3019 AGAINST HEREIN PETITIONERS;
and
IV. WHETHER PUBLIC RESPONDENTS ACTED WITH GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR IN EXCESS OF JURISDICTION IN FILING
THE INFORMATION FOR VIOLATION OF SEC.3(e) OF RA 3019 AGAINST PETITIONERS
IN THE SANDIGANBAYAN DOCKETED AS CRIMINAL CASE NO. 28075.
Petitioners maintain that the modification of the charge from violation of Article 220 of
the Revised Penal Code to violation of Sections 3(e) and 3(h) of R.A. No. 3019 denied their
rights to due process since they were not given the opportunity to answer and present evidence
on the new charge in a preliminary investigation. Furthermore, the petitioners argue that public
respondents committed grave abuse of discretion amounting to lack or excess of jurisdiction in
issuing the challenged resolutions finding probable cause for violation of R.A. No. 3019.
The petition lacks merit.
The right to a preliminary investigation is not a constitutional right, but is merely a right
conferred by statute. The absence of a preliminary investigation does not impair the validity of
the Information or otherwise render the same defective. It does not affect the jurisdiction of the
court over the case or constitute a ground for quashing the Information.15 If absence of a
preliminary investigation does not render the Information invalid nor affect the jurisdiction of the
court over the case, then the denial of a motion for reinvestigation cannot likewise invalidate the
Information or oust the court of its jurisdiction over the case.
Petitioners were not deprived of due process because they were afforded the opportunity
to refute the charges by filing their counter-affidavits. The modification of the offense charged
did not come as a surprise to the petitioners because it was based on the same set of facts and the
same alleged illegal acts. Moreover, petitioners failed to aver newly discovered evidence nor
impute commission of grave errors or serious irregularities prejudicial to their interest to warrant
a reconsideration or reinvestigation of the case as required under Section 8, Rule III of the Rules
of Procedure of the Office of the Ombudsman.16 Thus, the modification of the offense charged,
even without affording the petitioners a new preliminary investigation, did not amount to a
violation of their rights.
Furthermore, the right to preliminary investigation is deemed waived when the accused
fails to invoke it before or at the time of entering a plea at arraignment.17 Petitioner Budiongan
was arraigned in Criminal Case No. 28076 on March 28, 2005. He was also arraigned together
with the rest of the petitioners under the Amended Information in Criminal Case No. 28075 on
December 2, 2005.
The purpose of a preliminary investigation is merely to determine whether a crime has
been committed and whether there is probable cause to believe that the person accused of the
crime is probably guilty thereof and should be held for trial.18 A finding of probable cause needs
only to rest on evidence showing that more likely than not a crime has been committed and was
committed by the suspect. Probable cause need not be based on clear and convincing evidence of
guilt, neither on evidence establishing guilt beyond reasonable doubt and definitely, not on
evidence establishing absolute certainty of guilt." 19
The Office of the Special Prosecutor is an integral component of the Ombudsman and is
under the latter's supervision and control. Thus, whatever course of action that the Ombudsman
may take, whether to approve or to disapprove the recommendation of the investigating
prosecutor, is but an exercise of his discretionary powers based upon constitutional mandate.
Generally, courts should not interfere in such exercise. It is beyond the ambit of this Court to
review the exercise of discretion of the Ombudsman in prosecuting or dismissing a complaint
filed before it, save in cases where there is clear showing of grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of the Ombudsman.20 Absent any showing of
arbitrariness on the part of the prosecutor or any other officer authorized to conduct preliminary
investigation, as in the instant case, courts as a rule must defer to said officer's finding and
determination of probable cause, since the determination of the existence of probable cause is the
function of the prosecutor.21
In fine, certiorari will not lie to invalidate the Office of the Special Prosecutor's resolution
denying petitioners' motion for reconsideration since there is nothing to substantiate petitioners'
claim that it gravely abused its discretion in ruling that there was no need to conduct a
reinvestigation of the case.22
WHEREFORE, in view of the foregoing, the instant petition is DISMISSED. The
assailed Memorandum of the Office of the Special Prosecutor, Office of the Ombudsman, dated
April 28, 2004 finding probable cause that petitioners violated Sections 3(e) and 3(h) of Republic
Act No. 3019 and the Resolution dated October 19, 2005 denying petitioners' Motion for
Reconsideration, are hereby AFFIRMED.
SO ORDERED.
G.R. No. 84818 December 18, 1989

PHILIPPINE COMMUNICATIONS SATELLITE CORPORATION, petitioner,

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

Rilloraza, Africa, De Ocampo & Africa for petitioner.

Victor de la Serna for respondent Alcuaz.

REGALADO, J.:

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

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

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

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

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

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

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

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

5. In 1983, PHILCOMSAT constructed and installed a standard "B" antenna at Clark Air Field,
Pampanga as a television receive-only earth station which provides the U.S. Military bases with a
24-hour television service.

6. In 1989, petitioner completed the installation of a third standard "A" earth station (Pinugay IV)
to take over the links in Pinugay I due to obsolescence. 3

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

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

1. Philippine Long Distance Telephone Company;

2. Philippine Global Communications, Inc.;

3. Eastern Telecommunications Phils., Inc.;

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

5. Capitol Wireless, Inc.

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

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

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

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

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

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

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

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

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

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

Whichever way it is presented, petitioner is in effect questioning the constitutionality of Executive

Orders Nos. 546 and 196 on the ground that the same do not fix a standard for the exercise of the
power therein conferred.

We hold otherwise.

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

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

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

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

We find merit in petitioner's contention.

In Vigan Electric Light Co., Inc. vs. Public Service Commission, 9 we made a categorical
classification as to when the rate-filing power of administrative bodies is quasi-judicial and when
it is legislative, thus:
Moreover, although the rule-making power and even the power to fix rates- when such rules
and/or rates are meant to apply to all enterprises of a given kind throughout the Philippines-may
partake of a legislative character, such is not the nature of the order complained of. Indeed, the
same applies exclusively to petitioner herein. What is more, it is predicated upon the finding of
fact-based upon a report submitted by the General Auditing Office-that petitioner is making a
profit of more than 12% of its invested capital, which is denied by petitioner. Obviously, the latter
is entitled to cross-examine the maker of said report, and to introduce evidence to disprove the
contents thereof and/or explain or complement the same, as well as to refute the conclusion drawn
therefrom by the respondent. In other words, in making said finding of fact, respondent performed
a function partaking of a quasi-judicial character, the valid exercise of which demands previous
notice and hearing.

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

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

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

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

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

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

xxx xxx xxx

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

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

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

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

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

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

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

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

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

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

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

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

At present, petitioner is engaged in several projects aimed at refurbishing, rehabilitating, and

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

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

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

SO ORDERED.
G.R. No. L-342 May 4, 1946

AURELIO S. ALVERO, petitioner,

vs.
ARSENIO P. DIZON, ET AL., respondent.

Albert and Albert for petitioner.

First Assistant Solicitor General Reyes and Assistant Solicitor General Alvendia for respondents.

DE JOYA, J.:

This is a petition for certiorari with injunction originally filed in this court.

In the petition it is alleged that petitioner Aurelio S. Alvero has been accused of treason, in
criminal case No. 3 of the People's Court; that at the hearing on his petition for bail, the
prosecution presented, as part of its evidence, certain documents which had been allegedly seized
by soldiers of the United States Army, accompanied by Filipino guerrillas, in the petitioner's
house; that petitioner immediately objected to the presentation of said documents, and called the
attention of the respondent judges to the fact that he had filed a petition, in which he protested
against the procedure of the government in the seizure of said documents, and asked for their
return to the petitioner; that the respondents permitted the prosecution to present said documents
as evidence, which were considered, upon the termination of the presentation of the evidence for
both parties, in denying said petition for bail; that the petition filed on December 1, 1945, for the
return of the documents allegedly seized illegally in petitioner's house, was not considered by the
respondents, before the commencement of the trial of petitioner's case, on the merits, due perhaps
to an involuntary oversight; that at the commencement of the trial of said criminal case No. 3, and
during its course, the prosecution again presented, as evidence, against the petitioner said
documents which had been taken from his house, and petitioner renewed his objection thereto,
and asked for their return to him, alleging that their seizure was illegal and that their presentation
would be tantamount to compelling him to testify against himself, in violation of his
constitutional rights; that in deciding the question so raised, the respondent judges, in open court,
stated that the prosecution might in the meanwhile continue presenting said documents, without
prejudice to the final resolution of said petition, when the prosecution should finish presenting its
evidence; that in concluding the presentation of its evidence and resting the case, after offering
said documents as part of its evidence, the petitioner again raised the question of the admissibility
of said documents, and the respondent judges then ordered the substantiation of said allegations of
petitioner, and set for hearing his petition for the return of said documents; that said petition was
heard on February 16, 1946, and at said hearing, the petitioner and his wife testified, without any
contradiction that, on February 12, 1945, on the occasion of the arrest of the petitioner by soldiers
of the United States Army, the latter searched the house of the petitioner and seized, among other
things, the documents which he had in his house; that when said petition for the return of said
documents was submitted for the consideration and decision of the respondent judges, the latter,
on February 26, 1946, issued an order denying said petition, and admitted as competent evidence
the documents presented by the prosecution, marked as Exhibits A, C, G, H, K, L, P, R, R-1, R-2,
U, Z, CC, DD, FF, HH; that on the same date that said order was issued, denying the petition for
the return of said documents, petitioner asked for the reconsideration of said order, which was
also denied. (Petition, pars. 1-12.)

And herein petitioner now claims that the respondent judges, in denying the petition for the return
of said documents, acted without jurisdiction and committed a grave abuse in the exercise of their
discretion, alleging that even the seizure of documents by means of a search warrant legally
issued, constitutes a violation of the rights guaranteed in paragraphs 3 and 18 of section 1 of
Article III of the Constitution, and, consequently, when their seizure cannot be justified by the
corresponding search warrant, the court should order their immediate return; that the petitioner
has no other speedy and adequate remedy for the protection of his rights guaranteed by the
Constitution, other than this petition for certiorari, as the right of appeal granted by law to a
person accused of a crime, is costly and highly prejudicial to the petitioner, as it presupposes that
the prosecution has established the guilt of the accused by means of legal and competent
evidence, as alleged in the last three (3) paragraphs of the petition.

Consequently, herein petitioner asks for the annulment of the order issued by the respondent
judges, on February 26, 1946, in said criminal case No. 3, entitled — People of the Philippines vs.
Aurelio S. Alvero, — the return to him of the documents presented by the prosecution, mentioned
above, and the issuance of a writ of preliminary injunction. .In their answer filed on March 21,
1946, herein respondents have substantially admitted the allegations made and contained in the
first twelve (12) paragraphs of the petition, except the portions alleging that the documents in
question had been obtained by means of force and intimidation or through coercion; and that
certain soldiers of the American Army took certain personal properties of herein petitioner, at the
time the search was made; and that the acquisition of said documents was manifestly a violation
of petitioner's constitutional rights and that their admission, as evidence for the prosecution,
would be tantamount to compelling petitioner, as accused, to testify against himself — all of
which portions have been expressly denied by the respondents.

Respondents have also expressly denied the allegations contained in the remaining three (3)
paragraphs of the petition.

And as defenses, respondents allege (1) that petitioner himself has admitted the legality of the
seizure of the documents in question in his motion for reconsideration, dated February 26, 1946;
(2) that petitioner has not proven that said documents had been illegally seized for him; (3) that
the seizure of the documents in question took place, on February 12, 1945, in Pasay, Rizal, which
was then still a combat zone, and that the seizure of certain papers in the house of the petitioner
was made by soldiers of the United States Army of Liberation or its instrumentalities; (4) that said
seizure was effected lawfully under the terms of the proclamation of the Commander in Chief of
the United States Liberation Forces, dated December 29, 1944, in which he declared his purpose
to remove alleged collaborators, when apprehended, from any position of political and economic
influence in the Philippines and to hold them in restraint for the duration of the war; (5) that the
documents in question had been properly admitted as evidence for the prosecution in criminal
case No. 3, as herein petitioner, as accused in said case, had expressly waived his right to object to
their admissibility, particularly Exhibits A, FF, HH and P; (6) that petitioner's evidence of alleged
ownership, relative to Exhibits C, G, H, K, I, P, R, R-1 and R-2, is altogether insufficient, and
petitioner himself has expressly admitted that said documents are not his personal papers but part
of the files of the New Leaders' Association, which was proven to be an organization created, for
the purpose of collaborating with the enemy; (7) and that none of the exhibits referred to in the
petition has been satisfactorily identified by the petitioner as included among the papers allegedly
wrongfully seized from his house and belonging to him.

Considering the allegations made by the parties in their respective pleadings, and their supporting
papers, as well as the admissions made therein, the following facts appear to have been
sufficiently established:

(1) That on February 12, 1945, while the battle for Manila was raging, soldiers of the United
States Army, accompanied by men of Filipino Guerrilla Forces, placed herein petitioner under
arrest, having been suspected of collaboration with the enemy, and seized and took certain papers
from his house in Pasay, Rizal;

(2) That on or about October 4, 1945, petitioner was accused of treason, in criminal case No. 3 of
the People's Court; after which, on December 1, 1945, he filed a petition, demanding the return of
the papers allegedly seized and taken from his house;

(3) That petitioner also filed a petition for bail, at the hearing of which the prosecution presented
certain papers and documents, which were admitted as part of its evidence, and said petition was
denied;

(4) That at the trial of the case on the merits, the prosecution again presented said papers and
documents, which were admitted as part of its evidence, and were marked as exhibits, as
described in the petition for certiorari, filed in this court;

(5) That herein petitioner had failed to object properly to the admission of said papers and
documents at the hearing on said petition for bail, and at the trial of the case on the merits, in not
having insisted that the question of the legality of the search and seizure of the papers and
documents taken from his house should have been litigated and finally decided first, and thus
practically waived his objection to their admissibility, as evidence for the prosecution;
(6) That at the hearing on his petition for the return of the papers taken from his house, held after
they had been admitted as part of the evidence for the prosecution, at the hearing on the petition
for bail and at the trial of the case on the merits, herein petitioner had failed to identify
satisfactorily the documents now in question, and his ownership thereof; and

(7) That petitioner himself in his petition for reconsideration, dated February 26, 1946, admitted
the legality the legality of the seizure of the documents taken from his house, and at the hearing
on his petition for bail, he himself called for some of the documents in question.

The right of officers and men of the United States Army to arrest herein petitioner, as a
collaborationist suspect, and to seize his personal papers, without any search warrant, in the zone
of military operations, is unquestionable, under the provisions of article 4, Chapter II, Section I,
of the Regulations relative to the Laws and Customs of War on Land of the Hague Conventions of
1907, authorizing the seizure of military papers in the possession of prisoners of war (Wilson,
International Law, 3d ed., 1939, p.524); and also under the proclamation, dated December 29,
1944, issued by Gen. Douglas MacArthur, as Commander in Chief of the United States of Army,
declaring his purpose to remove certain citizens of the Philippines, who had voluntarily given aid
and comfort to the enemy, in violation of the allegiance due the Governments of the United States
and the Commonwealth of the Philippines, when apprehended, from any position of political and
economic influence in the Philippines and to hold them in restraint for the duration of the war. (41
Off. Gaz., No. 2, pp. 148, 149.) As a matter of fact, petitioner himself, in his motion for
reconsideration, dated February 26, 1946, expressly admitted the legality of the seizure of his
personal papers and documents at the time of his arrest.

The most important exception to the necessity for a search warrant is the right of search and
seizure as an incident to a lawful arrest. A lawful arrest may be made either while a crime is being
committed or after its commission. The right to search includes in both instances that of searching
the person of him who is arrested, in order to find and seize things connected with the crime as its
fruits or as the means by which it was committed. (Agnello vs. United States, 269 U. S., 20.)

When one is legally arrested for an offense, whatever is found in his possession or in his control
may be seized and used in evidence against him; and an officer has the right to make an arrest
without a warrant of a person believed by the officer upon reasonable grounds to have committed
a felony. (Carroll vs. United States, 267 U. S., 132.).

The majority of the states have held that the privilege against compulsory self-incrimination,
which is also guaranteed by state constitutional provisions is not violated by the use in evidence
of articles obtained by an unconstitutional search and seizure. (People vs. Defore, 242 N. Y., 13;
150 N. E., 585.)
It is true that on December 1, 1945, herein petitioner filed a petition, demanding the return of
certain papers and documents allegedly seized and taken from his house at the time of his arrest;
but when he consented to their presentation, as part of the evidence for the prosecution, at the
hearing on his petition for bail and at the trial of the case on the merits, without having insisted
that the question of the alleged illegality of the search and seizure of said papers and documents
should first have been directly litigated and established by a motion, made before the trial, for
their return, he was and should be deemed to have waived his objection to their admissibility as
part of the evidence for the prosecution; since the privilege against compulsory self-incrimination
may be waived. (Weeks vs. United States, 232 U. S., 383; Silverthorne Lumber Co. vs. United
States, 251 U. S., 385; Gouled vs. United States, 255 U. S., 298; People vs. Carlos, 47 Phil., 626,
630, 631.)

At the hearing on his petition for bail, petitioner himself requested the production of the document
marked as Exhibit A, which was a letter sent by him to Dr. Jose P. Laurel; the document marked
as Exhibit HH, which was a memorandum to Col. Suzuki, dated December 30, 1944; and the
document marked as Exhibit P, which was a memorandum on Nippongo classes. And he is now,
therefore, estopped from questioning their admission.

Furthermore, petitioner could not properly identify many of said documents, such as Exhibit FF,
nor satisfactorily establish his ownership thereof; while the prosecution has sufficiently
established the fact that some of the papers now in question, such as Exhibit C, had been received
at the Office of the CIC of the United States Army in the City of Manila, since February 11, 1945,
that is, one day prior to the seizure of certain papers and documents in the house of the petitioner.
And with reference to Exhibits C, G, H, K, L, P, R, R-1 and R-2, petitioner himself admitted that
they are not his personal papers but part of the files of the New Leader's Association. And it is
well established rule in this jurisdiction that in a petition for the production of papers and
documents, they must be sufficiently described and identified, otherwise the petition cannot
prosper. (Liebenow vs. Philippine Vegetable Oil Co., 39 Phil., 60, 67, 69; Rule 21, section 1,
Rules of Court.)

The purpose of the constitutional provisions against unlawful searches and seizures is to prevent
violations of private security in person and property, and unlawful invasions of the sanctity of the
home, by officers of the law acting under legislative or judicial sanction, and to give remedy
against such usurpations when attempted. (Adams vs. New York, 192 U. S., 585.) But it does not
prohibit the Federal Government from taking advantage of unlawful searches made by a private
person or under authority of state law. (Weeks vs. United States, 232 U. S., 383; Burdeau vs.
McDowell, 256 U. S., 465.)

As the soldiers of the United States Army, that took and seized certain papers and documents from
the residence of herein petitioner, on February 12, 1945, were not acting as agents or on behalf of
the Government of the Commonwealth of the Philippines; and that those papers and documents
came in the possession of the authorities of the Commonwealth Government, through the Office
of the CIC of the United States Army in Manila, the use and presentation of said papers and
documents, as evidence for the prosecution against herein petitioner, at the trial of his case for
treason, before the People's Court, cannot now be legally attacked, on the ground of unlawful or
unreasonable searches and seizures, or on any other constitutional ground, as declared by the
Supreme Court of the United States in similar cases. (Burdeau vs. McDowell, 256 U. S., 465;
Gambino vs. United States, 275 U. S., 310.)

In view of the foregoing, it is evident that the petition for certiorari with injunction, filed in this
case, is absolutely without merit, and it is, therefore, hereby denied and dismissed with costs. So
ordered.
G.R. No. 81561 January 18, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee

vs.
ANDRE MARTI, accused-appellant.

The Solicitor General for plaintiff-appellee.

Reynaldo B. Tatoy and Abelardo E. Rogacion for accused-appellant.

BIDIN, J.:p

This is an appeal from a decision * rendered by the Special Criminal Court of Manila (Regional
Trial Court, Branch XLIX) convicting accused-appellant of violation of Section 21 (b), Article IV
in relation to Section 4, Article 11 and Section 2 (e) (i), Article 1 of Republic Act 6425, as
amended, otherwise known as the Dangerous Drugs Act.

The facts as summarized in the brief of the prosecution are as follows:

On August 14, 1987, between 10:00 and 11:00 a.m., the appellant and his common-law wife,
Shirley Reyes, went to the booth of the "Manila Packing and Export Forwarders" in the Pistang
Pilipino Complex, Ermita, Manila, carrying with them four (4) gift wrapped packages. Anita
Reyes (the proprietress and no relation to Shirley Reyes) attended to them. The appellant
informed Anita Reyes that he was sending the packages to a friend in Zurich, Switzerland.
Appellant filled up the contract necessary for the transaction, writing therein his name, passport
number, the date of shipment and the name and address of the consignee, namely, "WALTER
FIERZ, Mattacketr II, 8052 Zurich, Switzerland" (Decision, p. 6)

Anita Reyes then asked the appellant if she could examine and inspect the packages. Appellant,
however, refused, assuring her that the packages simply contained books, cigars, and gloves and
were gifts to his friend in Zurich. In view of appellant's representation, Anita Reyes no longer
insisted on inspecting the packages. The four (4) packages were then placed inside a brown
corrugated box one by two feet in size (1' x 2'). Styro-foam was placed at the bottom and on top
of the packages before the box was sealed with masking tape, thus making the box ready for
shipment (Decision, p. 8).

Before delivery of appellant's box to the Bureau of Customs and/or Bureau of Posts, Mr. Job
Reyes (proprietor) and husband of Anita (Reyes), following standard operating procedure, opened
the boxes for final inspection. When he opened appellant's box, a peculiar odor emitted therefrom.
His curiousity aroused, he squeezed one of the bundles allegedly containing gloves and felt dried
leaves inside. Opening one of the bundles, he pulled out a cellophane wrapper protruding from the
opening of one of the gloves. He made an opening on one of the cellophane wrappers and took
several grams of the contents thereof (tsn, pp. 29-30, October 6, 1987; Emphasis supplied).

Job Reyes forthwith prepared a letter reporting the shipment to the NBI and requesting a
laboratory examination of the samples he extracted from the cellophane wrapper (tsn, pp. 5-6,
October 6, 1987).

He brought the letter and a sample of appellant's shipment to the Narcotics Section of the National
Bureau of Investigation (NBI), at about 1:30 o'clock in the afternoon of that date, i.e., August 14,
1987. He was interviewed by the Chief of Narcotics Section. Job Reyes informed the NBI that the
rest of the shipment was still in his office. Therefore, Job Reyes and three (3) NBI agents, and a
photographer, went to the Reyes' office at Ermita, Manila (tsn, p. 30, October 6, 1987).

Job Reyes brought out the box in which appellant's packages were placed and, in the presence of
the NBI agents, opened the top flaps, removed the styro-foam and took out the cellophane
wrappers from inside the gloves. Dried marijuana leaves were found to have been contained
inside the cellophane wrappers (tsn, p. 38, October 6, 1987; Emphasis supplied).

The package which allegedly contained books was likewise opened by Job Reyes. He discovered
that the package contained bricks or cake-like dried marijuana leaves. The package which
allegedly contained tabacalera cigars was also opened. It turned out that dried marijuana leaves
were neatly stocked underneath the cigars (tsn, p. 39, October 6, 1987).

The NBI agents made an inventory and took charge of the box and of the contents thereof, after
signing a "Receipt" acknowledging custody of the said effects (tsn, pp. 2-3, October 7, 1987).

Thereupon, the NBI agents tried to locate appellant but to no avail. Appellant's stated address in
his passport being the Manila Central Post Office, the agents requested assistance from the latter's
Chief Security. On August 27, 1987, appellant, while claiming his mail at the Central Post Office,
was invited by the NBI to shed light on the attempted shipment of the seized dried leaves. On the
same day the Narcotics Section of the NBI submitted the dried leaves to the Forensic Chemistry
Section for laboratory examination. It turned out that the dried leaves were marijuana flowering
tops as certified by the forensic chemist. (Appellee's Brief, pp. 9-11, Rollo, pp. 132-134).

Thereafter, an Information was filed against appellant for violation of RA 6425, otherwise known
as the Dangerous Drugs Act.

After trial, the court a quo rendered the assailed decision.

In this appeal, accused/appellant assigns the following errors, to wit:

THE LOWER COURT ERRED IN ADMITTING IN EVIDENCE THE ILLEGALLY

SEARCHED AND SEIZED OBJECTS CONTAINED IN THE FOUR PARCELS.

THE LOWER COURT ERRED IN CONVICTING APPELLANT DESPITE THE

UNDISPUTED FACT THAT HIS RIGHTS UNDER THE CONSTITUTION WHILE UNDER
CUSTODIAL PROCEEDINGS WERE NOT OBSERVED.

THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO THE EXPLANATION OF

THE APPELLANT ON HOW THE FOUR PARCELS CAME INTO HIS POSSESSION
(Appellant's Brief, p. 1; Rollo, p. 55)

1. Appellant contends that the evidence subject of the imputed offense had been obtained in
violation of his constitutional rights against unreasonable search and seizure and privacy of
communication (Sec. 2 and 3, Art. III, Constitution) and therefore argues that the same should be
held inadmissible in evidence (Sec. 3 (2), Art. III).

Sections 2 and 3, Article III of the Constitution provide:

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

Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except upon
lawful order of the court, or when public safety or order requires otherwise as prescribed by law.

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for
any purpose in any proceeding.

Our present constitutional provision on the guarantee against unreasonable search and seizure had
its origin in the 1935 Charter which, worded as follows:

The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon
probable cause, to be determined by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched, and the persons or things to be seized. (Sec. 1 [3], Article III)
was in turn derived almost verbatim from the Fourth Amendment ** to the United States
Constitution. As such, the Court may turn to the pronouncements of the United States Federal
Supreme Court and State Appellate Courts which are considered doctrinal in this jurisdiction.

Thus, following the exclusionary rule laid down in Mapp v. Ohio by the US Federal Supreme
Court (367 US 643, 81 S.Ct. 1684, 6 L.Ed. 1081 [1961]), this Court, in Stonehill v. Diokno (20
SCRA 383 [1967]), declared as inadmissible any evidence obtained by virtue of a defective search
and seizure warrant, abandoning in the process the ruling earlier adopted in Moncado v. People's
Court (80 Phil. 1 [1948]) wherein the admissibility of evidence was not affected by the illegality
of its seizure. The 1973 Charter (Sec. 4 [2], Art. IV) constitutionalized the Stonehill ruling and is
carried over up to the present with the advent of the 1987 Constitution.

In a number of cases, the Court strictly adhered to the exclusionary rule and has struck down the
admissibility of evidence obtained in violation of the constitutional safeguard against
unreasonable searches and seizures. (Bache & Co., (Phil.), Inc., v. Ruiz, 37 SCRA 823 [1971];
Lim v. Ponce de Leon, 66 SCRA 299 [1975]; People v. Burgos, 144 SCRA 1 [1986]; Roan v.
Gonzales, 145 SCRA 687 [1987]; See also Salazar v. Hon. Achacoso, et al., GR No. 81510,
March 14, 1990).

It must be noted, however, that in all those cases adverted to, the evidence so obtained were
invariably procured by the State acting through the medium of its law enforcers or other
authorized government agencies.

On the other hand, the case at bar assumes a peculiar character since the evidence sought to be
excluded was primarily discovered and obtained by a private person, acting in a private capacity
and without the intervention and participation of State authorities. Under the circumstances, can
accused/appellant validly claim that his constitutional right against unreasonable searches and
seizure has been violated? Stated otherwise, may an act of a private individual, allegedly in
violation of appellant's constitutional rights, be invoked against the State?

We hold in the negative. In the absence of governmental interference, the liberties guaranteed by
the Constitution cannot be invoked against the State.

As this Court held in Villanueva v. Querubin (48 SCRA 345 [1972]:

1. This constitutional right (against unreasonable search and seizure) refers to the immunity
of one's person, whether citizen or alien, from interference by government, included in which is
his residence, his papers, and other possessions. . . .
. . . There the state, however powerful, does not as such have the access except under the
circumstances above noted, for in the traditional formulation, his house, however humble, is his
castle. Thus is outlawed any unwarranted intrusion by government, which is called upon to refrain
from any invasion of his dwelling and to respect the privacies of his life. . . . (Cf. Schermerber v.
California, 384 US 757 [1966] and Boyd v. United States, 116 US 616 [1886]; Emphasis
supplied).

In Burdeau v. McDowell (256 US 465 (1921), 41 S Ct. 547; 65 L.Ed. 1048), the Court there in
construing the right against unreasonable searches and seizures declared that:

(t)he Fourth Amendment gives protection against unlawful searches and seizures, and as shown in
previous cases, its protection applies to governmental action. Its origin and history clearly show
that it was intended as a restraint upon the activities of sovereign authority, and was not intended
to be a limitation upon other than governmental agencies; as against such authority it was the
purpose of the Fourth Amendment to secure the citizen in the right of unmolested occupation of
his dwelling and the possession of his property, subject to the right of seizure by process duly
served.

The above ruling was reiterated in State v. Bryan (457 P.2d 661 [1968]) where a parking attendant
who searched the automobile to ascertain the owner thereof found marijuana instead, without the
knowledge and participation of police authorities, was declared admissible in prosecution for
illegal possession of narcotics.

And again in the 1969 case of Walker v. State (429 S.W.2d 121), it was held that the search and
seizure clauses are restraints upon the government and its agents, not upon private individuals
(citing People v. Potter, 240 Cal. App.2d 621, 49 Cap. Rptr, 892 (1966); State v. Brown, Mo., 391
S.W.2d 903 (1965); State v. Olsen, Or., 317 P.2d 938 (1957).

Likewise appropos is the case of Bernas v. US (373 F.2d 517 (1967). The Court there said:

The search of which appellant complains, however, was made by a private citizen — the owner of
a motel in which appellant stayed overnight and in which he left behind a travel case containing
the evidence*** complained of. The search was made on the motel owner's own initiative.
Because of it, he became suspicious, called the local police, informed them of the bag's contents,
and made it available to the authorities.

The fourth amendment and the case law applying it do not require exclusion of evidence obtained
through a search by a private citizen. Rather, the amendment only proscribes governmental
action."
The contraband in the case at bar having come into possession of the Government without the
latter transgressing appellant's rights against unreasonable search and seizure, the Court sees no
cogent reason why the same should not be admitted against him in the prosecution of the offense
charged.

Appellant, however, would like this court to believe that NBI agents made an illegal search and
seizure of the evidence later on used in prosecuting the case which resulted in his conviction.

The postulate advanced by accused/appellant needs to be clarified in two days. In both instances,
the argument stands to fall on its own weight, or the lack of it.

First, the factual considerations of the case at bar readily foreclose the proposition that NBI agents
conducted an illegal search and seizure of the prohibited merchandise. Records of the case clearly
indicate that it was Mr. Job Reyes, the proprietor of the forwarding agency, who made
search/inspection of the packages. Said inspection was reasonable and a standard operating
procedure on the part of Mr. Reyes as a precautionary measure before delivery of packages to the
Bureau of Customs or the Bureau of Posts (TSN, October 6 & 7, 1987, pp. 15-18; pp. 7-8;
Original Records, pp. 119-122; 167-168).

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

Second, the mere presence of the NBI agents did not convert the reasonable search effected by
Reyes into a warrantless search and seizure proscribed by the Constitution. Merely to observe and
look at that which is in plain sight is not a search. Having observed that which is open, where no
trespass has been committed in aid thereof, is not search (Chadwick v. State, 429 SW2d 135).
Where the contraband articles are identified without a trespass on the part of the arresting officer,
there is not the search that is prohibited by the constitution (US v. Lee 274 US 559, 71 L.Ed. 1202
[1927]; Ker v. State of California 374 US 23, 10 L.Ed.2d. 726 [1963]; Moore v. State, 429 SW2d
122 [1968]).

In Gandy v. Watkins (237 F. Supp. 266 [1964]), it was likewise held that where the property was
taken into custody of the police at the specific request of the manager and where the search was
initially made by the owner there is no unreasonable search and seizure within the constitutional
meaning of the term.

That the Bill of Rights embodied in the Constitution is not meant to be invoked against acts of
private individuals finds support in the deliberations of the Constitutional Commission. True, the
liberties guaranteed by the fundamental law of the land must always be subject to protection. But
protection against whom? Commissioner Bernas in his sponsorship speech in the Bill of Rights
answers the query which he himself posed, as follows:

First, the general reflections. The protection of fundamental liberties in the essence of
constitutional democracy. Protection against whom? Protection against the state. The Bill of
Rights governs the relationship between the individual and the state. Its concern is not the relation
between individuals, between a private individual and other individuals. What the Bill of Rights
does is to declare some forbidden zones in the private sphere inaccessible to any power holder.
(Sponsorship Speech of Commissioner Bernas , Record of the Constitutional Commission, Vol. 1,
p. 674; July 17, 1986; Emphasis supplied)

The constitutional proscription against unlawful searches and seizures therefore applies as a
restraint directed only against the government and its agencies tasked with the enforcement of the
law. Thus, it could only be invoked against the State to whom the restraint against arbitrary and
unreasonable exercise of power is imposed.

If the search is made upon the request of law enforcers, a warrant must generally be first secured
if it is to pass the test of constitutionality. However, if the search is made at the behest or initiative
of the proprietor of a private establishment for its own and private purposes, as in the case at bar,
and without the intervention of police authorities, the right against unreasonable search and
seizure cannot be invoked for only the act of private individual, not the law enforcers, is involved.
In sum, the protection against unreasonable searches and seizures cannot be extended to acts
committed by private individuals so as to bring it within the ambit of alleged unlawful intrusion
by the government.

Appellant argues, however, that since the provisions of the 1935 Constitution has been modified
by the present phraseology found in the 1987 Charter, expressly declaring as inadmissible any
evidence obtained in violation of the constitutional prohibition against illegal search and seizure,
it matters not whether the evidence was procured by police authorities or private individuals
(Appellant's Brief, p. 8, Rollo, p. 62).

The argument is untenable. For one thing, the constitution, in laying down the principles of the
government and fundamental liberties of the people, does not govern relationships between
individuals. Moreover, it must be emphasized that the modifications introduced in the 1987
Constitution (re: Sec. 2, Art. III) relate to the issuance of either a search warrant or warrant of
arrest vis-a-vis the responsibility of the judge in the issuance thereof (See Soliven v. Makasiar,
167 SCRA 393 [1988]; Circular No. 13 [October 1, 1985] and Circular No. 12 [June 30, 1987].
The modifications introduced deviate in no manner as to whom the restriction or inhibition
against unreasonable search and seizure is directed against. The restraint stayed with the State and
did not shift to anyone else.
Corolarilly, alleged violations against unreasonable search and seizure may only be invoked
against the State by an individual unjustly traduced by the exercise of sovereign authority. To
agree with appellant that an act of a private individual in violation of the Bill of Rights should
also be construed as an act of the State would result in serious legal complications and an absurd
interpretation of the constitution.

Similarly, the admissibility of the evidence procured by an individual effected through private
seizure equally applies, in pari passu, to the alleged violation, non-governmental as it is, of
appellant's constitutional rights to privacy and communication.

2. In his second assignment of error, appellant contends that the lower court erred in
convicting him despite the undisputed fact that his rights under the constitution while under
custodial investigation were not observed.

Again, the contention is without merit, We have carefully examined the records of the case and
found nothing to indicate, as an "undisputed fact", that appellant was not informed of his
constitutional rights or that he gave statements without the assistance of counsel. The law
enforcers testified that accused/appellant was informed of his constitutional rights. It is presumed
that they have regularly performed their duties (See. 5(m), Rule 131) and their testimonies should
be given full faith and credence, there being no evidence to the contrary. What is clear from the
records, on the other hand, is that appellant refused to give any written statement while under
investigation as testified by Atty. Lastimoso of the NBI, Thus:

Fiscal Formoso:

You said that you investigated Mr. and Mrs. Job Reyes. What about the accused here, did you
investigate the accused together with the girl?

WITNESS:

Yes, we have interviewed the accused together with the girl but the accused availed of his
constitutional right not to give any written statement, sir. (TSN, October 8, 1987, p. 62; Original
Records, p. 240)

The above testimony of the witness for the prosecution was not contradicted by the defense on
cross-examination. As borne out by the records, neither was there any proof by the defense that
appellant gave uncounselled confession while being investigated. What is more, we have
examined the assailed judgment of the trial court and nowhere is there any reference made to the
testimony of appellant while under custodial investigation which was utilized in the finding of
conviction. Appellant's second assignment of error is therefore misplaced.
3. Coming now to appellant's third assignment of error, appellant would like us to believe
that he was not the owner of the packages which contained prohibited drugs but rather a certain
Michael, a German national, whom appellant met in a pub along Ermita, Manila: that in the
course of their 30-minute conversation, Michael requested him to ship the packages and gave him
P2,000.00 for the cost of the shipment since the German national was about to leave the country
the next day (October 15, 1987, TSN, pp. 2-10).

Rather than give the appearance of veracity, we find appellant's disclaimer as incredulous, self-
serving and contrary to human experience. It can easily be fabricated. An acquaintance with a
complete stranger struck in half an hour could not have pushed a man to entrust the shipment of
four (4) parcels and shell out P2,000.00 for the purpose and for appellant to readily accede to
comply with the undertaking without first ascertaining its contents. As stated by the trial court,
"(a) person would not simply entrust contraband and of considerable value at that as the marijuana
flowering tops, and the cash amount of P2,000.00 to a complete stranger like the Accused. The
Accused, on the other hand, would not simply accept such undertaking to take custody of the
packages and ship the same from a complete stranger on his mere say-so" (Decision, p. 19, Rollo,
p. 91). As to why he readily agreed to do the errand, appellant failed to explain. Denials, if
unsubstantiated by clear and convincing evidence, are negative self-serving evidence which
deserve no weight in law and cannot be given greater evidentiary weight than the testimony of
credible witnesses who testify on affirmative matters (People v. Esquillo, 171 SCRA 571 [1989];
People vs. Sariol, 174 SCRA 237 [1989]).

Appellant's bare denial is even made more suspect considering that, as per records of the Interpol,
he was previously convicted of possession of hashish by the Kleve Court in the Federal Republic
of Germany on January 1, 1982 and that the consignee of the frustrated shipment, Walter Fierz,
also a Swiss national, was likewise convicted for drug abuse and is just about an hour's drive from
appellant's residence in Zurich, Switzerland (TSN, October 8, 1987, p. 66; Original Records, p.
244; Decision, p. 21; Rollo, p. 93).

Evidence to be believed, must not only proceed from the mouth of a credible witness, but it must
be credible in itself such as the common experience and observation of mankind can approve as
probable under the circumstances (People v. Alto, 26 SCRA 342 [1968], citing Daggers v. Van
Dyke, 37 N.J. Eg. 130; see also People v. Sarda, 172 SCRA 651 [1989]; People v. Sunga, 123
SCRA 327 [1983]); Castañares v. CA, 92 SCRA 567 [1979]). As records further show, appellant
did not even bother to ask Michael's full name, his complete address or passport number.
Furthermore, if indeed, the German national was the owner of the merchandise, appellant should
have so indicated in the contract of shipment (Exh. "B", Original Records, p. 40). On the contrary,
appellant signed the contract as the owner and shipper thereof giving more weight to the
presumption that things which a person possesses, or exercises acts of ownership over, are owned
by him (Sec. 5 [j], Rule 131). At this point, appellant is therefore estopped to claim otherwise.
Premises considered, we see no error committed by the trial court in rendering the assailed
judgment.

WHEREFORE, the judgment of conviction finding appellant guilty beyond reasonable doubt of
the crime charged is hereby AFFIRMED. No costs.

SO ORDERED.
Case: Wilson v. Layne

Issue: Does the State violate the Fourth Amendment by allowing media representatives to
accompany police officers during the execution of search and arrest warrants in private homes?

Facts: Armed Deputy United States Marshals and Montgomery County Police Officers in
possession of arrest warrants entered a private dwelling in order to effectuate the arrest of suspect
Dominic Wilson. As part of a media ride-along program, a Washington Post photographer and
reporter were present in the home. Unbeknownst to the officers, the home was that of the suspect's
parents, and the suspect was not present. The attempted arrest was conducted in the early morning
hours. The suspect's parents (petitioners) were roused from bed in their nightclothes. The suspect's
father was physically restrained. The officers departed when they realized they had the wrong
home. Petitioners sued the officers under Bivens and 42 U.S.C. § 1983. The District Court denied
respondents' motion for summary judgment which was based on a claim of qualified immunity.
An interlocutory appeal was taken to the United States Court of Appeals for the Fourth Circuit
where the en banc court ultimately upheld the defense of qualified immunity, refusing to reach the
Fourth Amendment issue.

Holding: It is a violation of the Fourth Amendment for law enforcement officers to bring
members of the media or other third parties into a home during the execution of a warrant when
the presence of the third parties in the home is not in aid of the execution of the warrant. Since
this Fourth Amendment violation was not clearly established in 1992, the officers who executed
the warrant were entitled to qualified immunity.

Reasoning: Justice Rehnquist, writing for a unanimous Court on the Fourth Amendment issue,
based his decision on the primacy of common law and Fourth Amendment respect for the privacy
of the home. "In 1604, an English court made the now famous observation that 'the house of
everyone is to him as his castle and fortress, as well as for his defense against injury and violence
as for his repose.' . . . William Blackstone noted that 'the law of England has so particular and
tender a regard to the immunity of a man's house, that it stiles it his castle, and will never suffer it
to be violated with impunity.' . . . The Fourth Amendment embodies this centuries-old principal of
respect for the privacy of the home." Rehnquist noted that the officers had an arrest warrant and
"were undoubtedly entitled to enter the Wilson home in order to execute the arrest warrant for
Dominic Wilson." It was important to the Court that the presence of reporters was not related to
the "objectives of the authorized intrusion." The reporters did not aid in the execution of the
warrant or assist the law enforcement officers in any way. The media presence had nothing to do
with the arrest of Dominic Wilson, which was the sole reason the police were in the house. The
Court was careful to note that where third parties can aid in the execution of a warrant, their
presence inside the home does not constitute a Fourth Amendment violation. It gave as an
example the case of someone who officers need in order to identify property to be seized. The
Court rejected a number of justifications for the policy of allowing the media to accompany
officers in the execution of warrants, most of which were based on alleged benefits to the public
and the public's right to know. To the Court, these claims ignored "the importance of the right of
residential privacy at the core of the Fourth Amendment." Rehnquist noted in footnote two that
the presence of the media constituted the Fourth Amendment violation, not the presence of the
officers who were rightfully in the home. "We have no occasion here to decide whether the
exclusionary rule would apply to any evidence discovered or developed by the media
representatives." This suggests that had the police themselves discovered evidence of a crime and
charged the suspect's parents, no challenge to admissibility of the evidence would have lied.

Other Opinions: Justice Stevens dissented from the portion of the Court's opinion holding that the
officers were entitled to qualified immunity because their conduct did not violate "clearly
established statutory or constitutional rights of which a reasonable person would have known." He
argued, inter alia, that every federal appellate judge who had considered the question of media
presence at searches had found a Fourth Amendment violation.

Comment: It is important to remember that the Court's holding applies not only to the media, but
also to any third parties whose presence does not aid in execution of the warrant.
IN THE MATTER OF THE PETITION G.R. No. 160792
FOR HABEAS CORPUS OF
CAPT. GARY ALEJANO, PN (MARINES)
CAPT. NICANOR FAELDON, PN (MARINES)
CAPT. GERARDO GAMBALA, PA
LT. SG JAMES LAYUG, PN
CAPT. MILO MAESTRECAMPO, PA
LT. SG ANTONIO TRILLANES IV, PN
HOMOBONO ADAZA, and
ROBERTO RAFAEL (ROEL) PULIDO,
Petitioners,
Present:
Davide, Jr., C.J.,
Puno,
Panganiban,
Quisumbing,
Ynares-Santiago,
Sandoval-Gutierrez,
- versus - Carpio,
Austria-Martinez,
Corona,
Carpio Morales,
Callejo, Sr.,
Azcuna,
Tinga,
Chico-Nazario, and
Garcia, JJ.
GEN. PEDRO CABUAY,
GEN. NARCISO ABAYA,
SEC. ANGELO REYES, and Promulgated:
SEC. ROILO GOLEZ,
Respondents. August 25, 2005

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

DECISION
CARPIO, J.:

The Case

This petition for review[1] seeks to nullify the Decision[2] of the Court of Appeals dated 17
September 2003 and Resolution dated 13 November 2003 in CA-G.R. SP No. 78545. The Court
of Appeals’ Decision and Resolution dismissed the petition for habeas corpus filed by lawyers
Homobono Adaza and Roberto Rafael Pulido (“petitioners”) on behalf of their detained clients
Capt. Gary Alejano (PN-Marines), Capt. Nicanor Faeldon (PN-Marines), Capt. Gerardo Gambala
(PA), Lt. SG James Layug (PN), Capt. Milo Maestrecampo (PA), and Lt. SG Antonio Trillanes IV
(PN) (“detainees”).

Petitioners named as respondent Gen. Pedro Cabuay (“Gen. Cabuay”), Chief of the Intelligence
Service of the Armed Forces of the Philippines (“ISAFP”), who has custody of the detainees.
Petitioners impleaded Gen. Narciso Abaya (“Gen. Abaya”), Sec. Angelo Reyes and Roilo Golez,
who are respectively the Chief of Staff of the Armed Forces of the Philippines (“AFP”), Secretary
of National Defense and National Security Adviser, because they have command responsibility
over Gen. Cabuay.

Antecedent Facts

Early morning of 27 July 2003, some 321 armed soldiers, led by the now detained
junior officers, entered and took control of the Oakwood Premier Luxury Apartments
(“Oakwood”), an upscale apartment complex, located in the business district of Makati City. The
soldiers disarmed the security officers of Oakwood and planted explosive devices in its immediate
surroundings. The junior officers publicly renounced their support for the administration and
called for the resignation of President Gloria Macapagal-Arroyo and several cabinet members.

Around 7:00 p.m. of the same date, the soldiers voluntarily surrendered to the authorities after
several negotiations with government emissaries. The soldiers later defused the explosive devices
they had earlier planted. The soldiers then returned to their barracks.

On 31 July 2003, Gen. Abaya, as the Chief of Staff of the AFP, issued a directive to all
the Major Service Commanders to turn over custody of ten junior officers to the ISAFP Detention
Center. The transfer took place while military and civilian authorities were investigating the
soldiers’ involvement in the Oakwood incident.
 On 1 August 2003, government prosecutors filed an Information for coup d’etat with
the Regional Trial Court of Makati City, Branch 61, against the soldiers involved in the 27 July
2003 Oakwood incident. The government prosecutors accused the soldiers of coup d’etat as
defined and penalized under Article 134-A of the Revised Penal Code of the Philippines, as
amended. The case was docketed as Criminal Case No. 03-2784. The trial court later issued the
Commitment Orders giving custody of junior officers Lt. SG Antonio Trillanes IV (“Trillanes”)
and Capt. Gerardo Gambala to the Commanding Officers of ISAFP.

On 2 August 2003, Gen. Abaya issued a directive to all Major Service Commanders to take
into custody the military personnel under their command who took part in the Oakwood incident
except the detained junior officers who were to remain under the custody of ISAFP.

On 11 August 2003, petitioners filed a petition for habeas corpus with the Supreme
Court. On 12 August 2003, the Court issued a Resolution, which resolved to:

(a) ISSUE the WRIT OF HABEAS CORPUS; (b) require respondents to make a RETURN of the
writ on Monday, 18 August 2003, at 10:00 a.m. before the Court of Appeals; (c) refer the case to
the Court of Appeals for RAFFLE among the Justices thereof for hearing, further proceedings and
decision thereon, after which a REPORT shall be made to this Court within ten (10) days from
promulgation of the decision.[3]

Thus, the Court issued a Writ of Habeas Corpus dated 12 August 2003 directing respondents to
make a return of the writ and to appear and produce the persons of the detainees before the Court
of Appeals on the scheduled date for hearing and further proceedings.

On the same date, the detainees and their other co-accused filed with the Regional Trial Court of
Makati City a Motion for Preliminary Investigation, which the trial court granted.

On 18 August 2003, pursuant to the directives of the Court, respondents submitted their Return of
the Writ and Answer to the petition and produced the detainees before the Court of Appeals during
the scheduled hearing. After the parties filed their memoranda on 28 August 2003, the appellate
court considered the petition submitted for decision.

On 17 September 2003, the Court of Appeals rendered its decision dismissing the petition.
Nonetheless, the appellate court ordered Gen. Cabuay, who was in charge of implementing the
regulations in the ISAFP Detention Center, to uphold faithfully the rights of the detainees in
accordance with Standing Operations Procedure No. 0263-04. The appellate court directed Gen.
Cabuay to adhere to his commitment made in court regarding visiting hours and the detainees’
right to exercise for two hours a day.
The Ruling of the Court of Appeals

The Court of Appeals found the petition bereft of merit. The appellate court pointed out that the
detainees are already charged of coup d’etat before the Regional Trial Court of Makati. Habeas
corpus is unavailing in this case as the detainees’ confinement is under a valid indictment, the
legality of which the detainees and petitioners do not even question.

The Court of Appeals recognized that habeas corpus may also be the appropriate remedy to assail
the legality of detention if there is a deprivation of a constitutional right. However, the appellate
court held that the constitutional rights alleged to have been violated in this case do not directly
affect the detainees’ liberty. The appellate court ruled that the regulation of the detainees’ right to
confer with their counsels is reasonable under the circumstances.

The appellate court declared that while the opening and reading of Trillanes’ letter is an abhorrent
violation of his right to privacy of communication, this does not justify the issuance of a writ of
habeas corpus. The violation does not amount to illegal restraint, which is the proper subject of
habeas corpus proceedings.

The Court of Appeals thus dismissed the petition and ordered Gen. Cabuay to fulfill the
promise he made in open court to uphold the visiting hours and the right of the detainees to
exercise for two hours a day. The dispositive portion of the appellate court’s decision reads:

WHEREFORE, the foregoing considered, the instant petition is hereby DISMISSED.

Respondent Cabuay is hereby ORDERED to faithfully adhere to his commitment to uphold the
constitutional rights of the detainees in accordance with the Standing Operations Procedure
No. 0263-04 regarding visiting hours and the right of the detainees to exercise for two (2) hours a
day.

SO ORDERED.[4]

The Issues

Petitioners raise the following issues for resolution:

A. THE COURT OF APPEALS ERRED IN REVIEWING AND

REVERSING A DECISION OF THE SUPREME COURT;
B. THE COURT OF APPEALS ERRED IN NOT ACKNOWLEDGING THE
APPROPRIATENESS OF THE REMEDY PETITIONERS SEEK; and

C. THE COURT OF APPEALS ERRED IN ASSERTING THE LEGALITY OF THE

CONDITIONS OF THE DETAINED JUNIOR OFFICERS’ DETENTION.[5]

The Ruling of the Court

The petition lacks merit.

Petitioners claim that the Court’s 12 August 2003 Order granted the petition and the Court
remanded the case to the Court of Appeals only for a factual hearing. Petitioners thus argue that
the Court’s Order had already foreclosed any question on the propriety and merits of their
petition.

Petitioners’ claim is baseless. A plain reading of the 12 August 2003 Order shows that the Court
referred to the Court of Appeals the duty to inquire into the cause of the junior officers’ detention.
Had the Court ruled for the detainees’ release, the Court would not have referred the hearing of
the petition to the Court of Appeals. The Court would have forthwith released the detainees had
the Court upheld petitioners’ cause.

In a habeas corpus petition, the order to present an individual before the court is a preliminary
step in the hearing of the petition.[6] The respondent must produce the person and explain the
cause of his detention.[7] However, this order is not a ruling on the propriety of the remedy or on
the substantive matters covered by the remedy. Thus, the Court’s order to the Court of Appeals to
conduct a factual hearing was not an affirmation of the propriety of the remedy of habeas corpus.

For obvious reasons, the duty to hear the petition for habeas corpus necessarily includes the
determination of the propriety of the remedy. If a court finds the alleged cause of the detention
unlawful, then it should issue the writ and release the detainees. In the present case, after hearing
the case, the Court of Appeals found that habeas corpus is inapplicable. After actively
participating in the hearing before the Court of Appeals, petitioners are estopped from claiming
that the appellate court had no jurisdiction to inquire into the merits of their petition.
The Court of Appeals correctly ruled that the remedy of habeas corpus is not the proper remedy to
address the detainees’ complaint against the regulations and conditions in the ISAFP Detention
Center. The remedy of habeas corpus has one objective: to inquire into the cause of detention of a
person.[8] The purpose of the writ is to determine whether a person is being illegally deprived of
his liberty.[9] If the inquiry reveals that the detention is illegal, the court orders the release of the
person. If, however, the detention is proven lawful, then the habeas corpus proceedings terminate.
The use of habeas corpus is thus very limited. It is not a writ of error.[10] Neither can it substitute
for an appeal.[11]

Nonetheless, case law has expanded the writ’s application to circumstances where there is
deprivation of a person’s constitutional rights. The writ is available where a person continues to
be unlawfully denied of one or more of his constitutional freedoms, where there is denial of due
process, where the restraints are not merely involuntary but are also unnecessary, and where a
deprivation of freedom originally valid has later become arbitrary.[12]

However, a mere allegation of a violation of one’s constitutional right is not sufficient. The courts
will extend the scope of the writ only if any of the following circumstances is present: (a) there is
a deprivation of a constitutional right resulting in the unlawful restraint of a person; (b) the court
had no jurisdiction to impose the sentence; or (c) an excessive penalty is imposed and such
sentence is void as to the excess.[13] Whatever situation the petitioner invokes, the threshold
remains high. The violation of constitutional right must be sufficient to void the entire
proceedings.[14]

Petitioners admit that they do not question the legality of the detention of the detainees. Neither
do they dispute the lawful indictment of the detainees for criminal and military offenses. What
petitioners bewail is the regulation adopted by Gen. Cabuay in the ISAFP Detention Center
preventing petitioners as lawyers from seeing the detainees – their clients – any time of the day or
night. The regulation allegedly curtails the detainees’ right to counsel and violates Republic Act
No. 7438 (“RA 7438”).[15] Petitioners claim that the regulated visits made it difficult for them to
prepare for the important hearings before the Senate and the Feliciano Commission.

Petitioners also point out that the officials of the ISAFP Detention Center violated the detainees’
right to privacy of communication when the ISAFP officials opened and read the personal letters
of Trillanes and Capt. Milo Maestrecampo (“Maestrecampo”). Petitioners further claim that the
ISAFP officials violated the detainees’ right against cruel and unusual punishment when the
ISAFP officials prevented the detainees from having contact with their visitors. Moreover, the
ISAFP officials boarded up with iron bars and plywood slabs the iron grills of the detention cells,
limiting the already poor light and ventilation in the detainees’ cells.
Pre-trial detainees do not forfeit their constitutional rights upon confinement.[16] However, the
fact that the detainees are confined makes their rights more limited than those of the public.[17]
RA 7438, which specifies the rights of detainees and the duties of detention officers, expressly
recognizes the power of the detention officer to adopt and implement reasonable measures to
secure the safety of the detainee and prevent his escape. Section 4(b) of RA 7438 provides:

Section 4. Penalty Clause. – a) x x x

b) Any person who obstructs, prevents or prohibits any lawyer, any member of the
immediate family of a person arrested, detained or under custodial investigation, or any medical
doctor or priest or religious minister or by his counsel, from visiting and conferring privately
chosen by him or by any member of his immediate family with him, or from examining and
treating him, or from ministering to his spiritual needs, at any hour of the day or, in urgent cases,
of the night shall suffer the penalty of imprisonment of not less than four (4) years nor more than
six (6) years, and a fine of four thousand pesos (P4,000.00).

The provisions of the above Section notwithstanding, any security officer with custodial
responsibility over any detainee or prisoner may undertake such reasonable measures as may be
necessary to secure his safety and prevent his escape. (Emphasis supplied)

True, Section 4(b) of RA 7438 makes it an offense to prohibit a lawyer from visiting a detainee
client “at any hour of the day or, in urgent cases, of the night.” However, the last paragraph of the
same Section 4(b) makes the express qualification that “notwithstanding” the provisions of
Section 4(b), the detention officer has the power to undertake such reasonable measures as may be
necessary to secure the safety of the detainee and prevent his escape.

The last paragraph of Section 4(b) of RA 7438 prescribes a clear standard. The regulations
governing a detainee’s confinement must be “reasonable measures x x x to secure his safety and
prevent his escape.” Thus, the regulations must be reasonably connected to the government’s
objective of securing the safety and preventing the escape of the detainee. The law grants the
detention officer the authority to “undertake such reasonable measures” or regulations.

Petitioners contend that there was an actual prohibition of the detainees’ right to effective
representation when petitioners’ visits were limited by the schedule of visiting hours. Petitioners
assert that the violation of the detainees’ rights entitle them to be released from detention.

Petitioners’ contention does not persuade us. The schedule of visiting hours does not render void
the detainees’ indictment for criminal and military offenses to warrant the detainees’ release from
detention. The ISAFP officials did not deny, but merely regulated, the detainees’ right to counsel.
The purpose of the regulation is not to render ineffective the right to counsel, but to secure the
safety and security of all detainees. American cases are instructive on the standards to determine
whether regulations on pre-trial confinement are permissible.

In Bell v. Wolfish,[18] the United States (U.S.) Supreme Court held that regulations must be
reasonably related to maintaining security and must not be excessive in achieving that purpose.
Courts will strike down a restriction that is arbitrary and purposeless.[19] However, Bell v.
Wolfish expressly discouraged courts from skeptically questioning challenged restrictions in
detention and prison facilities.[20] The U.S. Supreme Court commanded the courts to afford
administrators “wide-ranging deference” in implementing policies to maintain institutional
security.[21]

In our jurisdiction, the last paragraph of Section 4(b) of RA 7438 provides the standard to make
regulations in detention centers allowable: “such reasonable measures as may be necessary to
secure the detainee’s safety and prevent his escape.” In the present case, the visiting hours
accorded to the lawyers of the detainees are reasonably connected to the legitimate purpose of
securing the safety and preventing the escape of all detainees.

While petitioners may not visit the detainees any time they want, the fact that the detainees still
have face-to-face meetings with their lawyers on a daily basis clearly shows that there is no
impairment of detainees’ right to counsel. Petitioners as counsels could visit their clients between
8:00 a.m. and 5:00 p.m. with a lunch break at 12:00 p.m. The visiting hours are regular business
hours, the same hours when lawyers normally entertain clients in their law offices. Clearly, the
visiting hours pass the standard of reasonableness. Moreover, in urgent cases, petitioners could
always seek permission from the ISAFP officials to confer with their clients beyond the visiting
hours.

The scheduled visiting hours provide reasonable access to the detainees, giving petitioners
sufficient time to confer with the detainees. The detainees’ right to counsel is not undermined by
the scheduled visits. Even in the hearings before the Senate and the Feliciano Commission,[22]
petitioners were given time to confer with the detainees, a fact that petitioners themselves admit.
[23] Thus, at no point were the detainees denied their right to counsel.

Petitioners further argue that the bars separating the detainees from their visitors and the boarding
of the iron grills in their cells with plywood amount to unusual and excessive punishment. This
argument fails to impress us. Bell v. Wolfish pointed out that while a detainee may not be
punished prior to an adjudication of guilt in accordance with due process of law, detention
inevitably interferes with a detainee’s desire to live comfortably.[24] The fact that the restrictions
inherent in detention intrude into the detainees’ desire to live comfortably does not convert those
restrictions into punishment.[25] It is when the restrictions are arbitrary and purposeless that
courts will infer intent to punish.[26] Courts will also infer intent to punish even if the restriction
seems to be related rationally to the alternative purpose if the restriction appears excessive in
relation to that purpose.[27] Jail officials are thus not required to use the least restrictive security
measure.[28] They must only refrain from implementing a restriction that appears excessive to
the purpose it serves.[29]

We quote Bell v. Wolfish:

One further point requires discussion. The petitioners assert, and respondents concede, that the
“essential objective of pretrial confinement is to insure the detainees’ presence at trial.” While this
interest undoubtedly justifies the original decision to confine an individual in some manner, we do
not accept respondents’ argument that the Government’s interest in ensuring a detainee’s presence
at trial is the only objective that may justify restraints and conditions once the decision is lawfully
made to confine a person. “If the government could confine or otherwise infringe the liberty of
detainees only to the extent necessary to ensure their presence at trial, house arrest would in the
end be the only constitutionally justified form of detention.” The Government also has legitimate
interests that stem from its need to manage the facility in which the individual is detained. These
legitimate operational concerns may require administrative measures that go beyond those that
are, strictly speaking, necessary to ensure that the detainee shows up at trial. For example, the
Government must be able to take steps to maintain security and order at the institution and make
certain no weapons or illicit drugs reach detainees. Restraints that are reasonably related to the
institution’s interest in maintaining jail security do not, without more, constitute unconstitutional
punishment, even if they are discomforting and are restrictions that the detainee would not have
experienced had he been released while awaiting trial. We need not here attempt to detail the
precise extent of the legitimate governmental interests that may justify conditions or restrictions
of pretrial detention. It is enough simply to recognize that in addition to ensuring the detainees’
presence at trial, the effective management of the detention facility once the individual is confined
is a valid objective that may justify imposition of conditions and restrictions of pretrial detention
and dispel any inference that such restrictions are intended as punishment.[30]

An action constitutes a punishment when (1) that action causes the inmate to suffer some harm or
“disability,” and (2) the purpose of the action is to punish the inmate.[31] Punishment also
requires that the harm or disability be significantly greater than, or be independent of, the inherent
discomforts of confinement.[32]

Block v. Rutherford,[33] which reiterated Bell v. Wolfish, upheld the blanket restriction on
contact visits as this practice was reasonably related to maintaining security. The safety of
innocent individuals will be jeopardized if they are exposed to detainees who while not yet
convicted are awaiting trial for serious, violent offenses and may have prior criminal conviction.
[34] Contact visits make it possible for the detainees to hold visitors and jail staff hostage to effect
escapes.[35] Contact visits also leave the jail vulnerable to visitors smuggling in weapons, drugs,
and other contraband.[36] The restriction on contact visits was imposed even on low-risk
detainees as they could also potentially be enlisted to help obtain contraband and weapons.[37]
The security consideration in the imposition of blanket restriction on contact visits was ruled to
outweigh the sentiments of the detainees.[38]

Block v. Rutherford held that the prohibition of contact visits bore a rational connection to the
legitimate goal of internal security.[39] This case reaffirmed the “hands-off” doctrine enunciated
in Bell v. Wolfish, a form of judicial self-restraint, based on the premise that courts should decline
jurisdiction over prison matters in deference to administrative expertise.[40]

In the present case, we cannot infer punishment from the separation of the detainees from their
visitors by iron bars, which is merely a limitation on contact visits. The iron bars separating the
detainees from their visitors prevent direct physical contact but still allow the detainees to have
visual, verbal, non-verbal and limited physical contact with their visitors. The arrangement is not
unduly restrictive. In fact, it is not even a strict non-contact visitation regulation like in Block v.
Rutherford. The limitation on the detainees’ physical contacts with visitors is a reasonable, non-
punitive response to valid security concerns.

The boarding of the iron grills is for the furtherance of security within the ISAFP Detention
Center. This measure intends to fortify the individual cells and to prevent the detainees from
passing on contraband and weapons from one cell to another. The boarded grills ensure security
and prevent disorder and crime within the facility. The diminished illumination and ventilation are
but discomforts inherent in the fact of detention, and do not constitute punishments on the
detainees.

We accord respect to the finding of the Court of Appeals that the conditions in the ISAFP
Detention Center are not inhuman, degrading and cruel. Each detainee, except for Capt. Nicanor
Faeldon and Capt. Gerardo Gambala, is confined in separate cells, unlike ordinary cramped
detention cells. The detainees are treated well and given regular meals. The Court of Appeals
noted that the cells are relatively clean and livable compared to the conditions now prevailing in
the city and provincial jails, which are congested with detainees. The Court of Appeals found the
assailed measures to be reasonable considering that the ISAFP Detention Center is a high-risk
detention facility. Apart from the soldiers, a suspected New People’s Army (“NPA”) member and
two suspected Abu Sayyaf members are detained in the ISAFP Detention Center.

We now pass upon petitioners’ argument that the officials of the ISAFP Detention Center violated
the detainees’ right to privacy when the ISAFP officials opened and read the letters handed by
detainees Trillanes and Maestrecampo to one of the petitioners for mailing. Petitioners point out
that the letters were not in a sealed envelope but simply folded because there were no envelopes
in the ISAFP Detention Center. Petitioners contend that the Constitution prohibits the
infringement of a citizen’s privacy rights unless authorized by law. The Solicitor General does
not deny that the ISAFP officials opened the letters.
Courts in the U.S. have generally permitted prison officials to open and read all incoming and
outgoing mail of convicted prisoners to prevent the smuggling of contraband into the prison
facility and to avert coordinated escapes.[41] Even in the absence of statutes specifically
allowing prison authorities from opening and inspecting mail, such practice was upheld based on
the principle of “civil deaths.”[42] Inmates were deemed to have no right to correspond
confidentially with anyone. The only restriction placed upon prison authorities was that the right
of inspection should not be used to delay unreasonably the communications between the inmate
and his lawyer.[43]

Eventually, the inmates’ outgoing mail to licensed attorneys, courts, and court officials received
respect.[44] The confidential correspondences could not be censored.[45] The infringement of
such privileged communication was held to be a violation of the inmates’ First Amendment rights.
[46] A prisoner has a right to consult with his attorney in absolute privacy, which right is not
abrogated by the legitimate interests of prison authorities in the administration of the institution.
[47] Moreover, the risk is small that attorneys will conspire in plots that threaten prison security.
[48]

American jurisprudence initially made a distinction between the privacy rights enjoyed by
convicted inmates and pre-trial detainees. The case of Palmigiano v. Travisono[49] recognized
that pre-trial detainees, unlike convicted prisoners, enjoy a limited right of privacy in
communication. Censorship of pre-trial detainees’ mail addressed to public officials, courts and
counsel was held impermissible. While incoming mail may be inspected for contraband and read
in certain instances, outgoing mail of pre-trial detainees could not be inspected or read at all.

In the subsequent case of Wolff v. McDonnell,[50] involving convicted prisoners, the U.S.
Supreme Court held that prison officials could open in the presence of the inmates incoming mail
from attorneys to inmates. However, prison officials could not read such mail from attorneys.
Explained the U.S. Supreme Court:

The issue of the extent to which prison authorities can open and inspect incoming mail from
attorneys to inmates, has been considerably narrowed in the course of this litigation. The prison
regulation under challenge provided that ‘(a)ll incoming and outgoing mail will be read and
inspected,’ and no exception was made for attorney-prisoner mail. x x x

Petitioners now concede that they cannot open and read mail from attorneys to inmates, but
contend that they may open all letters from attorneys as long as it is done in the presence of the
prisoners. The narrow issue thus presented is whether letters determined or found to be from
attorneys may be opened by prison authorities in the presence of the inmate or whether such mail
must be delivered unopened if normal detection techniques fail to indicate contraband.

xxx

x x x If prison officials had to check in each case whether a communication was from an attorney
before opening it for inspection, a near impossible task of administration would be imposed. We
think it entirely appropriate that the State require any such communications to be specially
marked as originating from an attorney, with his name and address being given, if they are to
receive special treatment. It would also certainly be permissible that prison authorities require
that a lawyer desiring to correspond with a prisoner, first identify himself and his client to the
prison officials, to assure that the letters marked privileged are actually from members of the bar.
As to the ability to open the mail in the presence of inmates, this could in no way constitute
censorship, since the mail would not be read. Neither could it chill such communications, since
the inmate’s presence insures that prison officials will not read the mail. The possibility that
contraband will be enclosed in letters, even those from apparent attorneys, surely warrants prison
officials’ opening the letters. We disagree with the Court of Appeals that this should only be done
in ‘appropriate circumstances.’ Since a flexible test, besides being unworkable, serves no
arguable purpose in protecting any of the possible constitutional rights enumerated by respondent,
we think that petitioners, by acceding to a rule whereby the inmate is present when mail from
attorneys is inspected, have done all, and perhaps even more, than the Constitution requires.[51]

In Hudson v. Palmer,[52] the U.S. Supreme Court ruled that an inmate has no reasonable
expectation of privacy inside his cell. The U.S. Supreme Court explained that prisoners
necessarily lose many protections of the Constitution, thus:

However, while persons imprisoned for crime enjoy many protections of the Constitution, it is
also clear that imprisonment carries with it the circumscription or loss of many significant rights.
These constraints on inmates, and in some cases the complete withdrawal of certain rights, are
“justified by the considerations underlying our penal system.” The curtailment of certain rights is
necessary, as a practical matter, to accommodate a myriad of “institutional needs and objectives”
of prison facilities, chief among which is internal security. Of course, these restrictions or
retractions also serve, incidentally, as reminders that, under our system of justice, deterrence and
retribution are factors in addition to correction.[53]

The later case of State v. Dunn,[54] citing Hudson v. Palmer, abandoned Palmigiano v. Travisono
and made no distinction as to the detainees’ limited right to privacy. State v. Dunn noted the
considerable jurisprudence in the United States holding that inmate mail may be censored for the
furtherance of a substantial government interest such as security or discipline. State v. Dunn
declared that if complete censorship is permissible, then the lesser act of opening the mail and
reading it is also permissible. We quote State v. Dunn:

[A] right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with
the close and continual surveillance of inmates and their cells required to ensure institutional
security and internal order. We are satisfied that society would insist that the prisoner’s
expectation of privacy always yield to what must be considered a paramount interest in
institutional security. We believe that it is accepted by our society that “[l]oss of freedom of
choice and privacy are inherent incidents of confinement.”

The distinction between the limited privacy rights of a pre-trial detainee and a convicted inmate
has been blurred as courts in the U.S. ruled that pre-trial detainees might occasionally pose an
even greater security risk than convicted inmates. Bell v. Wolfish reasoned that those who are
detained prior to trial may in many cases be individuals who are charged with serious crimes or
who have prior records and may therefore pose a greater risk of escape than convicted inmates.
[55] Valencia v. Wiggins[56] further held that “it is impractical to draw a line between convicted
prisoners and pre-trial detainees for the purpose of maintaining jail security.”

American cases recognize that the unmonitored use of pre-trial detainees’ non-privileged mail
poses a genuine threat to jail security.[57] Hence, when a detainee places his letter in an envelope
for non-privileged mail, the detainee knowingly exposes his letter to possible inspection by jail
officials.[58] A pre-trial detainee has no reasonable expectation of privacy for his incoming mail.
[59] However, incoming mail from lawyers of inmates enjoys limited protection such that prison
officials can open and inspect the mail for contraband but could not read the contents without
violating the inmates’ right to correspond with his lawyer.[60] The inspection of privileged mail
is limited to physical contraband and not to verbal contraband.[61]

Thus, we do not agree with the Court of Appeals that the opening and reading of the detainees’
letters in the present case violated the detainees’ right to privacy of communication. The letters
were not in a sealed envelope. The inspection of the folded letters is a valid measure as it serves
the same purpose as the opening of sealed letters for the inspection of contraband.

The letters alleged to have been read by the ISAFP authorities were not confidential letters
between the detainees and their lawyers. The petitioner who received the letters from detainees
Trillanes and Maestrecampo was merely acting as the detainees’ personal courier and not as their
counsel when he received the letters for mailing. In the present case, since the letters were not
confidential communication between the detainees and their lawyers, the officials of the ISAFP
Detention Center could read the letters. If the letters are marked confidential communication
between the detainees and their lawyers, the detention officials should not read the letters but only
open the envelopes for inspection in the presence of the detainees.

That a law is required before an executive officer could intrude on a citizen’s privacy rights[62] is
a guarantee that is available only to the public at large but not to persons who are detained or
imprisoned. The right to privacy of those detained is subject to Section 4 of RA 7438, as well as
to the limitations inherent in lawful detention or imprisonment. By the very fact of their
detention, pre-trial detainees and convicted prisoners have a diminished expectation of privacy
rights.

In assessing the regulations imposed in detention and prison facilities that are alleged to
infringe on the constitutional rights of the detainees and convicted prisoners, U.S. courts “balance
the guarantees of the Constitution with the legitimate concerns of prison administrators.”[63] The
deferential review of such regulations stems from the principle that:

[s]ubjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny

analysis would seriously hamper their ability to anticipate security problems and to adopt
innovative solutions to the intractable problems of prison administration.[64]

The detainees in the present case are junior officers accused of leading 300 soldiers in committing
coup d’etat, a crime punishable with reclusion perpetua.[65] The junior officers are not ordinary
detainees but visible leaders of the Oakwood incident involving an armed takeover of a civilian
building in the heart of the financial district of the country. As members of the military armed
forces, the detainees are subject to the Articles of War.[66]

Moreover, the junior officers are detained with other high-risk persons from the Abu Sayyaf and
the NPA. Thus, we must give the military custodian a wider range of deference in implementing
the regulations in the ISAFP Detention Center. The military custodian is in a better position to
know the security risks involved in detaining the junior officers, together with the suspected Abu
Sayyaf and NPA members. Since the appropriate regulations depend largely on the security risks
involved, we should defer to the regulations adopted by the military custodian in the absence of
patent arbitrariness.

The ruling in this case, however, does not foreclose the right of detainees and convicted prisoners
from petitioning the courts for the redress of grievances. Regulations and conditions in detention
and prison facilities that violate the Constitutional rights of the detainees and prisoners will be
reviewed by the courts on a case-by-case basis. The courts could afford injunctive relief or
damages to the detainees and prisoners subjected to arbitrary and inhumane conditions. However,
habeas corpus is not the proper mode to question conditions of confinement.[67] The writ of
habeas corpus will only lie if what is challenged is the fact or duration of confinement.[68]
WHEREFORE, we DISMISS the petition. We AFFIRM the Decision of the Court of Appeals in
CA-G.R. SP No. 78545.

No pronouncement as to costs.

SO ORDERED.
G.R. No. 113271 October 16, 1997

WATEROUS DRUG CORPORATION and MS. EMMA CO, petitioners,

vs.
NATIONAL LABOR RELATIONS COMMISSION and ANTONIA MELODIA CATOLICO,
respondents.

DAVIDE, JR., J.:

Nor is he a true Servant [who] buys dear to share in the Profit with the Seller. 1

This petition for certiorari under Rule 65 of the Rules of Court seeks to declare private respondent
Antonia Melodia Catolico (hereafter Catolico) not a "true Servant," thereby assailing the 30
September 1993 decision 2 and December 1993 Resolution 3 of the National Labor Relations
Commission (NLRC) in NLRC-NCR CA No. 005160-93, which sustained the reinstatement and
monetary awards in favor of private respondent 4 and denied the petitioners' motion for
reconsideration. 5

The facts are as follows:

Catolico was hired as a pharmacist by petitioner Waterous Drug Corporation (hereafter

WATEROUS) on 15 August 1988.

On 31 July 1989, Catolico received a memorandum 6 from WATEROUS Vice President-General

Manager Emma R. Co warning her not to dispense medicine to employees chargeable to the
latter's accounts because the same was a prohibited practice. On the same date, Co issued another
memorandum 7 to Catolico warning her not to negotiate with suppliers of medicine without
consulting the Purchasing Department, as this would impair the company's control of purchases
and, besides she was not authorized to deal directly with the suppliers.

As regards the first memorandum, Catolico did not deny her responsibility but explained that her
act was "due to negligence," since fellow employee Irene Soliven "obtained the medicines in bad
faith and through misrepresentation when she claimed that she was given a charge slip by the
Admitting Dept." Catolico then asked the company to look into the fraudulent activities of
Soliven. 8

In a memorandum 9 dated 21 November 1989, WATEROUS Supervisor Luzviminda E. Bautro

warned Catolico against the "rush delivery of medicines without the proper documents."
On 29 January 1990, WATEROUS Control Clerk Eugenio Valdez informed Co that he noticed an
irregularity involving Catolico and Yung Shin Pharmaceuticals, Inc. (hereafter YSP), which he
described as follows:

. . . A case in point is medicine purchased under our Purchase Order (P.O.) No. 19045 with YSP
Sales Invoice No. 266 representing purchase of ten (10) bottles of Voren tablets at P384.00 per
unit. Previews P.O.s issued to YSP, Inc. showed that the price per bottle is P320.00 while P.O. No.
19045 is priced at P384.00 or an over price of P64.00 per bottle (or total of P640.00). WDRC paid
the amount of P3,840.00 thru MBTC Check No. 222832 dated December 15, 1988. Verification
was made to YSP, Inc. to determine the discrepancy and it was found that the cost per bottle was
indeed overpriced. YSP, Inc. Accounting Department (Ms. Estelita Reyes) confirmed that the
difference represents refund of jack-up price of ten bottles of Voren tablets per sales invoice no.
266 as per their check voucher no. 629552 (shown to the undersigned), which was paid to Ms.
Catolico through China Bank check no. 892068 dated November 9, 1989 . . . .

The undersigned talked to Ms. Catolico regarding the check but she denied having received it and
that she is unaware of the overprice. However, upon conversation with Ms. Saldana, EDRC
Espana Pharmacy Clerk, she confirmed that the check amounting to P640.00 was actually
received by Ms. Catolico. As a matter of fact, Ms. Catolico even asked Ms. Saldana if she opened
the envelope containing the check but Ms. Saldana answered her "talagang ganyan, bukas." It
appears that the amount in question (P640.00) had been pocketed by Ms. Catolico. 10

Forthwith, in her memorandum 11 dated 37 January 1990, Co asked Catolico to explain, within
twenty-four hours, her side of the reported irregularity. Catolico asked for additional time to give
her explanation, 12 and she was granted a 48-hour extension from 1 to 3 February 1990.
However, on 2 February 1990, she was informed that effective 6 February 1990 to 7 March 1990,
she would be placed on preventive suspension to protect the interests of the company. 13

In a letter dated 2 February 1990, Catolico requested access to the file containing Sales Invoice
No. 266 for her to be able to make a satisfactory explanation. In said letter she protested Saldaña's
invasion of her privacy when Saldaña opened an envelope addressed to Catolico. 14

In a letter 15 to Co dated 10 February 1990, Catolico, through her counsel, explained that the
check she received from YSP was a Christmas gift and not a "refund of overprice." She also
averred that the preventive suspension was ill-motivated, as it sprang from an earlier incident
between her and Co's secretary, Irene Soliven.

On 5 March 1990, WATEROUS Supervisor Luzviminda Bautro, issued a memorandum 16

notifying Catolico of her termination; thus:
We received your letter of explanation and your lawyer's letter dated Feb. 2, 1990 and Feb. 10,
1990 respectively regarding our imposition of preventive suspension on you for acts of
dishonesty. However, said letters failed to rebut the evidences [sic] in our possession which
clearly shows that as a Pharmacist stationed at Espana Branch, you actually made Purchase
Orders at YSP Phils., Inc. for 10 bottles of Voren tablets at P384.00/bottle with previous price of
P320.00/bottle only. A check which you received in the amount of P640.00 actually represents the
refund of over price of said medicines and this was confirmed by Ms. Estelita Reyes, YSP Phils.,
Inc. Accounting Department.

Your actuation constitutes an act of dishonesty detrimental to the interest of the company.
Accordingly, you are hereby terminated effective March 8, 1990.

On 5 May 1990, Catolico filed before the Office of the Labor Arbiter a complaint for unfair labor
practice, illegal dismissal, and illegal suspension. 17

In his decision 18 of 10 May 1993, Labor Arbiter Alex Arcadio Lopez found no proof of unfair
labor practice against petitioners. Nevertheless, he decided in favor of Catolico because
petitioners failed to "prove what [they] alleged as complainant's dishonesty," and to show that any
investigation was conducted. Hence, the dismissal was without just cause and due process. He
thus declared the dismissal and suspension illegal but disallowed reinstatement, as it would not be
to the best interest of the parties. Accordingly, he awarded separation pay to Catolico computed at
one-half month's pay for every year of service; back wages for one year; and the additional sum of
P2,000.00 for illegal suspension "representing 30 days work." Arbiter Lopez computed the award
in favor of Catolico as follows:

30 days Preventive Suspension P2,000.00

Backwages 26,858.50
1/12 of P26,858.50 2,238.21
Separation pay (3 years) 4,305.15
—————
TOTAL AWARD P35,401.86
—————

Petitioners seasonably appealed from the decision and urged the NLRC to set it aside because the
Labor Arbiter erred in finding that Catolico was denied due process and that there was no just
cause to terminate her services.

In its decision 19 of 30 September 1993, the NLRC affirmed the findings of the Labor Arbiter on
the ground that petitioners were not able to prove a just cause for Catolico's dismissal from her
employment. It found that petitioner's evidence consisted only of the check of P640.00 drawn by
YSP in favor of complainant, which her co-employee saw when the latter opened the envelope.
But, it declared that the check was inadmissible in evidence pursuant to Sections 2 and 3(1 and 2)
of Article III of the Constitution. 20 It concluded:

With the smoking gun evidence of respondents being rendered inadmissible, by virtue of the
constitutional right invoked by complainants, respondents' case falls apart as it is bereft of
evidence which cannot be used as a legal basis for complainant's dismissal.

The NLRC then dismissed the appeal for lack of merit, but modified the dispositive portion of the
appealed decision by deleting the award for illegal suspension as the same was already included
in the computation of the aggregate of the awards in the amount of P35,401.86.

Their motion for reconsideration having been denied, petitioners filed this special civil action for
certiorari, which is anchored on the following grounds:

I. Public respondent committed grave abuse of discretion in its findings of facts.

II. Due process was duly accorded to private respondent.

III. Public respondent gravely erred in applying Section 3, Article III of the 1987 Constitution.

As to the first and second grounds, petitioners insist that Catolico had been receiving
"commissions" from YSP, or probably from other suppliers, and that the check issued to her on 9
November 1989 was not the first or the last. They also maintained that Catolico occupied a
confidential position and that Catolico's receipt of YSP's check, aggravated by her "propensity to
violate company rules," constituted breach of confidence. And contrary to the findings of NLRC,
Catolico was given ample opportunity to explain her side of the controversy.

Anent the third ground, petitioners submit that, in light of the decision in the People v. Marti, 21
the constitutional protection against unreasonable searches and seizures refers to the immunity of
one's person from interference by government and cannot be extended to acts committed by
private individuals so as to bring it within the ambit of alleged unlawful intrusion by the
government.

In its Manifestation in Lieu of Comment, the Office of the Solicitor General (OSG) disagreed
with the NLRC's decision, as it was of the persuasion that (a) the conclusions reached by public
respondent are inconsistent with its findings of fact; and (b) the incident involving the opening of
envelope addressed to private respondent does not warrant the application of the constitutional
provisions. It observed that Catolico was given "several opportunities" to explain her side of the
check controversy, and concluded that the opportunities granted her and her subsequent
explanation "satisfy the requirements of just cause and due process." The OSG was also
convinced that Catolico's dismissal was based on just cause and that Catolico's admission of the
existence of the check, as well as her "lame excuse" that it was a Christmas gift from YSP,
constituted substantial evidence of dishonesty. Finally, the OSG echoed petitioners' argument that
there was no violation of the right of privacy of communication in this case, 22 adding that
petitioner WATEROUS was justified in opening an envelope from one of its regular suppliers as it
could assume that the letter was a business communication in which it had an interest.

In its Comment which we required to be filed in view of the adverse stand of the OSG, the NLRC
contends that petitioners miserably failed to prove their claim that it committed grave abuse of
discretion in its findings of fact. It then prays that we dismiss this petition.

In her Comment, Catolico asserts that petitioners' evidence is too "flimsy" to justify her dismissal.
The check in issue was given to her, and she had no duty to turn it over to her employer. Company
rules do not prohibit an employee from accepting gifts from clients, and there is no indication in
the contentious check that it was meant as a refund for overpriced medicines. Besides, the check
was discovered in violation of the constitutional provision on the right to privacy and
communication; hence, as correctly held by the NLRC, it was inadmissible in evidence.

Catolico likewise disputes petitioners' claim that the audit report and her initial response that she
never received a check were sufficient to justify her dismissal. When she denied having received a
check from YSP, she meant that she did not receive any refund of overprice, consistent with her
position that what she received was a token gift. All that can be gathered from the audit report is
that there was apparently an overcharge, with no basis to conclude that Catolico pocketed the
amount in collusion with YSP. She thus concluded that her dismissal was based on a mere
suspicion.

Finally, Catolico insists that she could not have breached the trust and confidence of WATEROUS
because, being merely a pharmacist, she did not handle "confidential information or sensitive
properties." She was doing the task of a saleslady: selling drugs and making requisitions when
supplies were low.

A thorough review of the record leads us to no other conclusion than that, except as to the third
ground, the instant petition must fail.

Concededly, Catolico was denied due process. Procedural due process requires that an employee
be apprised of the charge against him, given reasonable time to answer the charge, allowed ample
opportunity to be heard and defend himself, and assisted by a representative if the employee so
desires. 23 Ample opportunity connotes every kind of assistance that management must accord
the employee to enable him to prepare adequately for his defense, including legal representation.
24
In the case at bar, although Catolico was given an opportunity to explain her side, she was
dismissed from the service in the memorandum of 5 March 1990 issued by her Supervisor after
receipt of her letter and that of her counsel. No hearing was ever conducted after the issues were
joined through said letters. The Supervisor's memorandum spoke of "evidences [sic] in
[WATEROUS] possession," which were not, however, submitted. What the "evidences" [sic]
other than the sales invoice and the check were, only the Supervisor knew.

Catolico was also unjustly dismissed. It is settled that the burden is on the employer to prove just
and valid cause for dismissing an employee, and its failure to discharge that burden would result
in a finding that the dismissal is unjustified. 25 Here, WATEROUS proved unequal to the task.

It is evident from the Supervisor's memorandum that Catolico was dismissed because of an
alleged anomalous transaction with YSP. Unfortunately for petitioners, their evidence does not
establish that there was an overcharge. Control Clerk Eugenio C. Valdez, who claims to have
discovered Catolico's inappropriate transaction, stated in his affidavit: 26

4. My findings revealed that on or before the month of July 31, 1989, Ms. Catolico in
violation of the [company] procedure, made an under the table deal with YSP Phils. to supply
WDRC needed medicines like Voren tablets at a jack-up price of P384.00 per bottle of 50 mg.
which has a previous price of only P320.00;

5. I verified the matter to YSP Phils. to determine the discrepancy and I found out that the
cost per bottle was indeed overpriced. The Accounting Department of YSP Phils. through Ms.
Estelita Reyes confirmed that there was really an overprice and she said that the difference was
refunded through their check voucher no. 629552 which was shown to me and the payee is
Melodia Catolico, through a China Bank Check No. 892068 dated November 9, 1989.

It clearly appears then that Catolico's dismissal was based on hearsay information. Estelita Reyes
never testified nor executed an affidavit relative to this case; thus, we have to reject the statements
attributed to her by Valdez. Hearsay evidence carries no probative value. 27

Besides, it was never shown that petitioners paid for the Voren tablets. While Valdez informed Co,
through the former's memorandum 28 of 29 January 1990, that WATEROUS paid YSP P3,840.00
"thru MBTC Check No. 222832," the said check was never presented in evidence, nor was any
receipt from YSP offered by petitioners.

Moreover, the two purchase orders for Voren tablets presented by petitioners do not indicate an
overcharge. The purchase order dated 16 August 1989 29 stated that the Voren tablets cost
P320.00 per box, while the purchase order dated 5 October 1989 30 priced the Voren tablets at
P384.00 per bottle. The difference in price may then be attributed to the different packaging used
in each purchase order.
Assuming that there was an overcharge, the two purchase orders for the Voren tablets were
recommended by Director-MMG Mario R. Panuncio, verified by AVP-MNG Noli M. Lopez and
approved by Vice President-General Manager Emma R. Co. The purchase orders were silent as to
Catolico's participation in the purchase. If the price increase was objectionable to petitioners, they
or their officers should have disapproved the transaction. Consequently, petitioners had no one to
blame for their predicament but themselves. This set of facts emphasizes the exceedingly
incredible situation proposed by petitioners. Despite the memorandum warning Catolico not to
negotiate with suppliers of medicine, there was no proof that she ever transacted, or that she had
the opportunity to transact, with the said suppliers. Again, as the purchase orders indicate,
Catolico was not at all involved in the sale of the Voren tablets. There was no occasion for
Catolico to initiate, much less benefit from, what Valdez called an "under the table deal" with
YSP.

Catolico's dismissal then was obviously grounded on mere suspicion, which in no case can justify
an employee's dismissal. Suspicion is not among the valid causes provided by the Labor Code for
the termination of
employment; 31 and even the dismissal of an employee for loss of trust and confidence must rest
on substantial grounds and not on the employer's arbitrariness, whims, caprices, or suspicion. 32
Besides, Catolico was not shown to be a managerial employee, to which class of employees the
term "trust and confidence" is restricted. 33

As regards the constitutional violation upon which the NLRC anchored its decision, we find no
reason to revise the doctrine laid down in People vs. Marti 34 that the Bill of Rights does not
protect citizens from unreasonable searches and seizures perpetrated by private individuals. It is
not true, as counsel for Catolico claims, that the citizens have no recourse against such assaults.
On the contrary, and as said counsel admits, such an invasion gives rise to both criminal and civil
liabilities.

Finally, since it has been determined by the Labor Arbiter that Catolico's reinstatement would not
be to the best interest of the parties, he correctly awarded separation pay to Catolico. Separation
pay in lieu of reinstatement is computed at one month's salary for every year of service. 35 In this
case, however, Labor Arbiter Lopez computed the separation pay at one-half month's salary for
every year of service. Catolico did not oppose or raise an objection. As such, we will uphold the
award of separation pay as fixed by the Labor Arbiter.

WHEREFORE, the instant petition is hereby DISMISSED and the challenged decision and
resolution of the National Labor Relations Commission dated 30 September 1993 and 2
December 1993, respectively, in NLRC-NCR CA No. 005160-93 are AFFIRMED, except as to its
reason for upholding the Labor Arbiter's decision, viz., that the evidence against private
respondent was inadmissible for having been obtained in violation of her constitutional rights of
privacy of communication and against unreasonable searches and seizures which is hereby set
aside.

Costs against petitioners.

SO ORDERED.
G.R. No. 120915 April 3, 1998
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROSA ARUTA y MENGUIN, accused-appellant.

DECISION
ROMERO, J.:
With the pervasive proliferation of illegal drugs and its pernicious effects on our society, our law
enforcers tend at times to overreach themselves in apprehending drug offenders to the extent of
failing to observe well-entrenched constitutional guarantees against illegal searches and arrests.
Consequently, drug offenders manage to evade the clutches of the law on mere technicalities.
Accused-appellant Rosa Aruta y Menguin was arrested and charged with violating Section 4,
Article II of Republic Act No. 6425 or the Dangerous Drugs Act. The information reads:
That on or about the fourteenth (14th) day of December, 1988, in the City of Olongapo,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
without being lawfully authorized, did then and there willfully, unlawfully and knowingly engage
in transporting approximately eight (8) kilos and five hundred (500) grams of dried marijuana
packed in plastic bag marked “Cash Katutak” placed in a traveling bag, which are prohibited
drugs.
Upon arraignment, she pleaded “not guilty.” After trial on the merits, the Regional Trial Court of
Olongapo City convicted and sentenced her to suffer the penalty of life imprisonment and to pay a
fine of twenty thousand (P20,000.00) pesos. 1
The prosecution substantially relied on the testimonies of P/Lt. Ernesto Abello, Officer-in-Charge
of the Narcotics Command (NARCOM) of Olongapo City and P/Lt. Jose Domingo. Based on
their testimonies, the court a quo found the following:
On December 13, 1988, P/Lt. Abello was tipped off by his informant, known only as Benjie, that
a certain “Aling Rosa” would be arriving from Baguio City the following day, December 14,
1988, with a large volume of marijuana. Acting on said tip, P/Lt. Abello assembled a team
composed of P/Lt. Jose Domingo, Sgt. Angel Sudiacal, Sgt. Oscar Imperial, Sgt. Danilo Santiago
and Sgt. Efren Quirubin.
Said team proceeded to West Bajac-Bajac, Olongapo City at around 4:00 in the afternoon of
December 14, 1988 and deployed themselves near the Philippine National Bank (PNB) building
along Rizal Avenue and the Caltex gasoline station. Dividing themselves into two groups, one
group, made up of P/Lt. Abello, P/Lt. Domingo and the informant posted themselves near the
PNB building while the other group waited near the Caltex gasoline station.
While thus positioned, a Victory Liner Bus with body number 474 and the letters BGO printed on
its front and back bumpers stopped in front of the PNB building at around 6:30 in the evening of
the same day from where two females and a male got off. It was at this stage that the informant
pointed out to the team “Aling Rosa” who was then carrying a traveling bag.
Having ascertained that accused-appellant was “Aling Rosa,” the team approached her and
introduced themselves as NARCOM agents. When P/Lt. Abello asked “Aling Rosa” about the
contents of her bag, the latter handed it to the former.
Upon inspection, the bag was found to contain dried marijuana leaves packed in a plastic bag
marked “Cash Katutak.” The team confiscated the bag together with the Victory Liner bus ticket
to which Lt. Domingo affixed his signature. Accused-appellant was then brought to the
NARCOM office for investigation where a Receipt of Property Seized was prepared for the
confiscated marijuana leaves.
Upon examination of the seized marijuana specimen at the PC/INP Crime Laboratory, Camp
Olivas, Pampanga, P/Maj. Marlene Salangad, a Forensic Chemist, prepared a Technical Report
stating that said specimen yielded positive results for marijuana, a prohibited drug.
After the presentation of the testimonies of the arresting officers and of the above technical report,
the prosecution rested its case.
Instead of presenting its evidence, the defense filed a “Demurrer to Evidence” alleging the
illegality of the search and seizure of the items thereby violating accused-appellant’s
constitutional right against unreasonable search and seizure as well as their inadmissibility in
evidence.
The said “Demurrer to Evidence” was, however, denied without the trial court ruling on the
alleged illegality of the search and seizure and the inadmissibility in evidence of the items seized
to avoid pre-judgment. Instead, the trial court continued to hear the case.
In view of said denial, accused-appellant testified on her behalf. As expected, her version of the
incident differed from that of the prosecution. She claimed that immediately prior to her arrest,
she had just come from Choice Theater where she watched the movie “Balweg.” While about to
cross the road, an old woman asked her help in carrying a shoulder bag. In the middle of the road,
Lt. Abello and Lt. Domingo arrested her and asked her to go with them to the NARCOM Office.
During investigation at said office, she disclaimed any knowledge as to the identity of the woman
and averred that the old woman was nowhere to be found after she was arrested. Moreover, she
added that no search warrant was shown to her by the arresting officers.
After the prosecution made a formal offer of evidence, the defense filed a “Comment and/or
Objection to Prosecution’s Formal Offer of Evidence” contesting the admissibility of the items
seized as they were allegedly a product of an unreasonable search and seizure.
Not convinced with her version of the incident, the Regional Trial Court of Olongapo City
convicted accused-appellant of transporting eight (8) kilos and five hundred (500) grams of
marijuana from Baguio City to Olongapo City in violation of Section 4, Article 11 of R.A. No.
6425, as amended, otherwise known as the Dangerous Drugs Act of 1972 and sentenced her to
life imprisonment and to pay a fine of twenty thousand (P20,000.00) pesos without subsidiary
imprisonment in case of insolvency. 2
In this appeal, accused-appellant submits the following:
1. The trial court erred in holding that the NARCOM agents could not apply for a warrant for the
search of a bus or a passenger who boarded a bus because one of the requirements for applying a
search warrant is that the place to be searched must be specifically designated and described.
2. The trial court erred in holding or assuming that if a search warrant was applied for by the
NARCOM agents, still no court would issue a search warrant for the reason that the same would
be considered a general search warrant which may be quashed.
3. The trial court erred in not finding that the warrantless search resulting to the arrest of accused-
appellant violated the latter’s constitutional rights.
4. The trial court erred in not holding that although the defense of denial is weak yet the evidence
of the prosecution is even weaker.
These submissions are impressed with merit.
In People v. Ramos, 3 this Court held that a search may be conducted by law enforcers only on
the strength of a search warrant validly issued by a judge as provided in Article III, Section 2 of
the Constitution which provides:
Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.
This constitutional guarantee is not a blanket prohibition against all searches and seizures as it
operates only against “unreasonable” searches and seizures. The plain import of the language of
the Constitution, which in one sentence prohibits unreasonable searches and seizures and at the
same time prescribes the requisites for a valid warrant, is that searches and seizures are normally
unreasonable unless authorized by a validly issued search warrant or warrant of arrest. Thus, the
fundamental protection accorded by the search and seizure clause is that between person and
police must stand the protective authority of a magistrate clothed with power to issue or refuse to
issue search warrants or warrants of arrest. 4
Further, articles which are the product of unreasonable searches and seizures are inadmissible as
evidence pursuant to the doctrine pronounced in Stonehill v. Diokno. 5 This exclusionary rule was
later enshrined in Article III, Section 3(2) of the Constitution, thus:
Sec. 3(2). Any evidence obtained in violation of this or the preceding section shall be inadmissible
in evidence for any purpose in any proceeding.
From the foregoing, it can be said that the State cannot simply intrude indiscriminately into the
houses, papers, effects, and most importantly, on the person of an individual. The constitutional
provision guaranteed an impenetrable shield against unreasonable searches and seizures. As such,
it protects the privacy and sanctity of the person himself against unlawful arrests and other forms
of restraint. 6
Therewithal, the right of a person to be secured against any unreasonable seizure of his body and
any deprivation of his liberty is a most basic and fundamental one. A statute, rule or situation
which allows exceptions to the requirement of a warrant of arrest or search warrant must perforce
be strictly construed and their application limited only to cases specifically provided or allowed
by law. To do otherwise is an infringement upon personal liberty and would set back a right so
basic and deserving of full protection and vindication yet often violated. 7
The following cases are specifically provided or allowed by law:
1. Warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 of the
Rules of Court 8 and by prevailing jurisprudence;
2. Seizure of evidence in “plain view,” the elements of which are:
(a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally
present in the pursuit of their official duties;
(b) the evidence was inadvertently discovered by the police who had the right to be where they
are;
(c) the evidence must be immediately apparent, and
(d) “plain view” justified mere seizure of evidence without further search;
3. Search of a moving vehicle. Highly regulated by the government, the vehicle’s inherent
mobility reduces expectation of privacy especially when its transit in public thoroughfares
furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed
a criminal activity;
4. Consented warrantless search;
5. Customs search; 9
6. Stop and Frisk; 10and
7. Exigent and Emergency Circumstances. 11
The above exceptions, however, should not become unbridled licenses for law enforcement
officers to trample upon the constitutionally guaranteed and more fundamental right of persons
against unreasonable search and seizures. The essential requisite of probable cause must still be
satisfied before a warrantless search and seizure can be lawfully conducted.
Although probable cause eludes exact and concrete definition, it generally signifies a reasonable
ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a
cautious man to believe that the person accused is guilty of the offense with which he is charged.
It likewise refers to the existence of such facts and circumstances which could lead a reasonably
discreet and prudent man to believe that an offense has been committed and that the item(s),
article(s) or object(s) sought in connection with said offense or subject to seizure and destruction
by law is in the place to be searched. 12
It ought to be emphasized that in determining probable cause, the average man weighs facts and
circumstances without resorting to the calibrations of our rules of evidence of which his
knowledge is technically nil. Rather, he relies on the calculus of common sense which all
reasonable men have in abundance. The same quantum of evidence is required in determining
probable cause relative to search. Before a search warrant can be issued, it must be shown by
substantial evidence that the items sought are in fact seizable by virtue of being connected with
criminal activity, and that the items will be found in the place to be searched. 13
In searches and seizures effected without a warrant, it is necessary for probable cause to be
present. Absent any probable cause, the article(s) seized could not be admitted and used as
evidence against the person arrested. Probable cause, in these cases, must only be based on
reasonable ground of suspicion or belief that a crime has been committed or is about to be
committed.
In our jurisprudence, there are instances where information has become a sufficient probable
cause to effect a warrantless search and seizure.
In People v. Tangliben, 14 acting on information supplied by informers, police officers conducted
a surveillance at the Victory Liner Terminal compound in San Fernando, Pampanga against
persons who may commit misdemeanors and also on those who may be engaging in the traffic of
dangerous drugs. At 9:30 in the evening, the policemen noticed a person carrying a red traveling
bag who was acting suspiciously. They confronted him and requested him to open his bag but he
refused. He acceded later on when the policemen identified themselves. Inside the bag were
marijuana leaves wrapped in a plastic wrapper. The police officers only knew of the activities of
Tangliben on the night of his arrest.
In instant case, the apprehending officers already had prior knowledge from their informant
regarding Aruta’s alleged activities. In Tangliben policemen were confronted with an on-the-spot
tip. Moreover, the policemen knew that the Victory Liner compound is being used by drug
traffickers as their “business address”. More significantly, Tangliben was acting suspiciously. His
actuations and surrounding circumstances led the policemen to reasonably suspect that Tangliben
is committing a crime. In instant case, there is no single indication that Aruta was acting
suspiciously.
In People v. Malmstedt, 15 the Narcom agents received reports that vehicles coming from Sagada
were transporting marijuana. They likewise received information that a Caucasian coming from
Sagada had prohibited drugs on his person. There was no reasonable time to obtain a search
warrant, especially since the identity of the suspect could not be readily ascertained. His
actuations also aroused the suspicion of the officers conducting the operation. The Court held that
in light of such circumstances, to deprive the agents of the ability and facility to act promptly,
including a search without a warrant, would be to sanction impotence and ineffectiveness in law
enforcement, to the detriment of society.
Note, however, the glaring differences of Malmstedt to the instant case. In present case, the police
officers had reasonable time within which to secure a search warrant. Second, Aruta’s identity was
priorly ascertained. Third, Aruta was not acting suspiciously. Fourth, Malmstedt was searched
aboard a moving vehicle, a legally accepted exception to the warrant requirement. Aruta, on the
other hand, was searched while about to cross a street.
In People v. Bagista, 16 the NARCOM officers had probable cause to stop and search all vehicles
coming from the north to Acop, Tublay, Benguet in view of the confidential information they
received from their regular informant that a woman having the same appearance as that of
accused-appellant would be bringing marijuana from up north. They likewise had probable cause
to search accused-appellant’s belongings since she fitted the description given by the NARCOM
informant. Since there was a valid warrantless search by the NARCOM agents, any evidence
obtained in the course of said search is admissible against accused-appellant. Again, this case
differs from Aruta as this involves a search of a moving vehicle plus the fact that the police
officers erected a checkpoint. Both are exceptions to the requirements of a search warrant.
In Manalili v. Court of Appeals and People, 17 the policemen conducted a surveillance in an area
of the Kalookan Cemetery based on information that drug addicts were roaming therein. Upon
reaching the place, they chanced upon a man in front of the cemetery who appeared to be “high”
on drugs. He was observed to have reddish eyes and to be walking in a swaying manner.
Moreover, he appeared to be trying to avoid the policemen. When approached and asked what he
was holding in his hands, he tried to resist. When he showed his wallet, it contained marijuana.
The Court held that the policemen had sufficient reason to accost accused-appellant to determine
if he was actually “high” on drugs due to his suspicious actuations, coupled with the fact that
based on information, this area was a haven for drug addicts.
In all the abovecited cases, there was information received which became the bases for
conducting the warrantless search. Furthermore, additional factors and circumstances were
present which, when taken together with the information, constituted probable causes which
justified the warrantless searches and seizures in each of the cases.
In the instant case, the determination of the absence or existence of probable cause necessitates a
reexamination of the facts. The following have been established: (1) In the morning of December
13, 1988, the law enforcement officers received information from an informant named “Benjie”
that a certain “Aling Rosa” would be leaving for Baguio City on December 14, 1988 and would
be back in the afternoon of the same day carrying with her a large volume of marijuana; (2) At
6:30 in the evening of December 14, 1988, accused-appellant alighted from a Victory Liner Bus
carrying a traveling bag even as the informant pointed her out to the law enforcement officers; (3)
The law enforcement officers approached her and introduced themselves as NARCOM agents; (4)
When asked by Lt. Abello about the contents of her traveling bag, she gave the same to him; (5)
When they opened the same, they found dried marijuana leaves; (6) Accused-appellant was then
brought to the NARCOM office for investigation.
This case is similar to People v. Aminnudin where the police received information two days
before the arrival of Aminnudin that the latter would be arriving from Iloilo on board the M/V
Wilcon 9. His name was known, the vehicle was identified and the date of arrival was certain.
From the information they had received, the police could have persuaded a judge that there was
probable cause, indeed, to justify the issuance of a warrant. Instead of securing a warrant first,
they proceeded to apprehend Aminnudin. When the case was brought before this Court, the arrest
was held to be illegal; hence any item seized from Aminnudin could not be used against him.
Another recent case is People v. Encinada where the police likewise received confidential
information the day before at 4:00 in the afternoon from their informant that Encinada would be
bringing in marijuana from Cebu City on board M/V Sweet Pearl at 7:00 in the morning of the
following day. This intelligence information regarding the culprit’s identity, the particular crime
he allegedly committed and his exact whereabouts could have been a basis of probable cause for
the lawmen to secure a warrant. This Court held that in accordance with Administrative Circular
No. 13 and Circular No. 19, series of 1987, the lawmen could have applied for a warrant even
after court hours. The failure or neglect to secure one cannot serve as an excuse for violating
Encinada’s constitutional right.
In the instant case, the NARCOM agents were admittedly not armed with a warrant of arrest. To
legitimize the warrantless search and seizure of accused-appellant’s bag, accused-appellant must
have been validly arrested under Section 5 of Rule 113 which provides inter alia:
Sec. 5. Arrest without warrant; when lawful. — A peace officer or a private person may, without a
warrant, arrest a person:
(a) When in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense;
xxx xxx xxx
Accused-appellant Aruta cannot be said to be committing a crime. Neither was she about to
commit one nor had she just committed a crime. Accused-appellant was merely crossing the street
and was not acting in any manner that would engender a reasonable ground for the NARCOM
agents to suspect and conclude that she was committing a crime. It was only when the informant
pointed to accused-appellant and identified her to the agents as the carrier of the marijuana that
she was singled out as the suspect. The NARCOM agents would not have apprehended accused-
appellant were it not for the furtive finger of the informant because, as clearly illustrated by the
evidence on record, there was no reason whatsoever for them to suspect that accused-appellant
was committing a crime, except for the pointing finger of the informant. This the Court could
neither sanction nor tolerate as it is a clear violation of the constitutional guarantee against
unreasonable search and seizure. Neither was there any semblance of any compliance with the
rigid requirements of probable cause and warrantless arrests.
Consequently, there was no legal basis for the NARCOM agents to effect a warrantless search of
accused-appellant’s bag, there being no probable cause and the accused-appellant not having been
lawfully arrested. Stated otherwise, the arrest being incipiently illegal, it logically follows that the
subsequent search was similarly illegal, it being not incidental to a lawful arrest. The
constitutional guarantee against unreasonable search and seizure must perforce operate in favor of
accused-appellant. As such, the articles seized could not be used as evidence against accused-
appellant for these are “fruits of a poisoned tree” and, therefore, must be rejected, pursuant to
Article III, Sec. 3(2) of the Constitution.
Emphasis is to be laid on the fact that the law requires that the search be incidental to a lawful
arrest, in order that the search itself may likewise be considered legal. Therefore, it is beyond
cavil that a lawful arrest must precede the search of a person and his belongings. Where a search
is first undertaken, and an arrest effected based on evidence produced by the search, both such
search and arrest would be unlawful, for being contrary to law. 18
As previously discussed, the case in point is People v. Aminnudin 19 where, this Court observed
that:
. . . accused-appellant was not, at the moment of his arrest, committing a crime nor was it shown
that he was about to do so or that he had just done so. What he was doing was descending the
gangplank of the M/V Wilcon 9 and there was no outward indication that called for his arrest. To
all appearances, he was like any of the other passengers innocently disembarking from the vessel.
It was only when the informer pointed to him as the carrier of the marijuana that he suddenly
became suspect and so subject to apprehension. It was the furtive finger that triggered his arrest.
The identification by the informer was the probable cause as determined by the officers (and not a
judge) that authorized them to pounce upon Aminnudin and immediately arrest him.
In the absence of probable cause to effect a valid and legal warrantless arrest, the search and
seizure of accused-appellant’s bag would also not be justified as seizure of evidence in “plain
view” under the second exception. The marijuana was obviously not immediately apparent as
shown by the fact that the NARCOM agents still had to request accused-appellant to open the bag
to ascertain its contents.
Neither would the search and seizure of accused-appellant’s bag be justified as a search of a
moving vehicle. There was no moving vehicle to speak of in the instant case as accused-appellant
was apprehended several minutes after alighting from the Victory Liner bus. In fact, she was
accosted in the middle of the street and not while inside the vehicle.
People v. Solayao, 20 applied the stop and frisk principle which has been adopted in Posadas v.
Court of Appeals. 21 In said case, Solayao attempted to flee when he and his companions were
accosted by government agents. In the instant case, there was no observable manifestation that
could have aroused the suspicion of the NARCOM agents as to cause them to “stop and frisk”
accused-appellant. To reiterate, accused-appellant was merely crossing the street when
apprehended. Unlike in the abovementioned cases, accused-appellant never attempted to flee from
the NARCOM agents when the latter identified themselves as such. Clearly, this is another
indication of the paucity of probable cause that would sufficiently provoke a suspicion that
accused-appellant was committing a crime.
The warrantless search and seizure could not likewise be categorized under exigent and
emergency circumstances, as applied in People v. De Gracia. 22 In said case, there were
intelligence reports that the building was being used as headquarters by the RAM during a coup d’
etat. A surveillance team was fired at by a group of armed men coming out of the building and the
occupants of said building refused to open the door despite repeated requests. There were large
quantities of explosives and ammunitions inside the building. Nearby courts were closed and
general chaos and disorder prevailed. The existing circumstances sufficiently showed that a crime
was being committed. In short, there was probable cause to effect a warrantless search of the
building. The same could not be said in the instant case.
The only other exception that could possibly legitimize the warrantless search and seizure would
be consent given by the accused-appellant to the warrantless search as to amount to a waiver of
her constitutional right. The Solicitor General argues that accused-appellant voluntarily submitted
herself to search and inspection citing People v. Malasugui 23 where this Court ruled:
When one voluntarily submits to a search or consents to have it made on his person or premises,
he is precluded from complaining later thereof. (Cooley, Constitutional Limitations, 8th ed.,
[V]ol. I, p. 631.) The right to be secure from unreasonable search may, like every right, be waived
and such waiver may be made either expressly or impliedly.
In support of said argument, the Solicitor General cited the testimony of Lt. Abello, thus:
Q When this informant by the name of alias Benjie pointed to Aling Rosa, what happened after
that?
A We followed her and introduced ourselves as NARCOM agents and confronted her with our
informant and asked her what she was carrying and if we can see the bag she was carrying.
Q What was her reaction?
A She gave her bag to me.
Q So what happened after she gave the bag to you?
A I opened it and found out plastic bags of marijuana inside. 24
This Court cannot agree with the Solicitor General’s contention for the Malasugui case is
inapplicable to the instant case. In said case, there was probable cause for the warrantless arrest
thereby making the warrantless search effected immediately thereafter equally lawful. 25 On the
contrary, the most essential element of probable cause, as expounded above in detail, is wanting in
the instant case making the warrantless arrest unjustified and illegal. Accordingly, the search
which accompanied the warrantless arrest was likewise unjustified and illegal. Thus, all the
articles seized from the accused-appellant could not be used as evidence against her.
Aside from the inapplicability of the abovecited case, the act of herein accused-appellant in
handing over her bag to the NARCOM agents could not be construed as voluntary submission or
an implied acquiescence to the unreasonable search. The instant case is similar to People v.
Encinada, 26 where this Court held:
[T]he Republic’s counsel avers that appellant voluntarily handed the chairs containing the
package of marijuana to the arresting officer and thus effectively waived his right against the
warrantless search. This he gleaned from Bolonia’s testimony.
Q: After Roel Encinada alighted from the motor tricycle, what happened next?
A: I requested to him to see his chairs that he carried.
Q: Are you referring to the two plastic chairs?
A: Yes, sir.
Q: By the way, when Roel Encinada agreed to allow you to examine the two chairs that he
carried, what did you do next?
A: I examined the chairs and I noticed that something inside in between the two chairs.
We are not convinced. While in principle we agree that consent will validate an otherwise illegal
search, we believe that appellant — based on the transcript quoted above — did not voluntarily
consent to Bolonia’s search of his belongings. Appellant’s silence should not be lightly taken as
consent to such search. The implied acquiescence to the search, if there was any, could not have
been more than mere passive conformity given under intimidating or coercive circumstances and
is thus considered no consent at all within the purview of the constitutional guarantee.
Furthermore, considering that the search was conducted irregularly, i.e., without a warrant, we
cannot appreciate consent based merely on the presumption of regularity of the performance of
duty.” (Emphasis supplied)
Thus, accused-appellant’s lack of objection to the search is not tantamount to a waiver of her
constitutional rights or a voluntary submission to the warrantless search. As this Court held in
People v. Barros: 27
. . . [T]he accused is not to be presumed to have waived the unlawful search conducted on the
occasion of his warrantless arrest “simply because he failed to object” —
. . . To constitute a waiver, it must appear first that the right exists; secondly, that the person
involved had knowledge, actual or constructive, of the existence of such right; and lastly, that said
person had an actual intention to relinquish the right (Pasion Vda. de Garcia v. Locsin, 65 Phil.
698). The fact that the accused failed to object to the entry into his house does not amount to a
permission to make a search therein (Magoncia v. Palacio, 80 Phil. 770). As pointed out by Justice
Laurel in the case of Pasion Vda. de Garcia v. Locsin (supra):
xxx xxx xxx
. . . As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the
courts do not place the citizen in the position of either contesting an officer’s authority by force,
or waiving his constitutional rights; but instead they hold that a peaceful submission to a search or
seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the
supremacy of the law. (Citation omitted).
We apply the rule that: “courts indulge every reasonable presumption against waiver of
fundamental constitutional rights and that we do not presume acquiescence in the loss of
fundamental rights.” 28(Emphasis supplied)
To repeat, to constitute a waiver, there should be an actual intention to relinquish the right. As
clearly illustrated in People v. Omaweng, 29 where prosecution witness Joseph Layong testified
thus:
PROSECUTOR AYOCHOK:
Q — When you and David Fomocod saw the travelling bag, what did you do?
A — When we saw that traveling bag, we asked the driver if we could see the contents.
Q — And what did or what was the reply of the driver, if there was any?
A — He said “you can see the contents but those are only clothings” (sic).
Q — When he said that, what did you do?
A — We asked him if we could open and see it.
Q — When you said that, what did he tell you?
A — He said “you can see it”.
Q — And when he said “you can see and open it,” what did you do?
A — When I went inside and opened the bag, I saw that it was not clothings (sic) that was
contained in the bag.
Q — And when you saw that it was not clothings (sic), what did you do?
A — When I saw that the contents were not clothes, I took some of the contents and showed it to
my companion Fomocod and when Fomocod smelled it, he said it was marijuana. (Emphasis
supplied)
In the above-mentioned case, accused was not subjected to any search which may be stigmatized
as a violation of his Constitutional right against unreasonable searches and seizures. If one had
been made, this Court would be the first to condemn it “as the protection of the citizen and the
maintenance of his constitutional rights is one of the highest duties and privileges of the Court.”
He willingly gave prior consent to the search and voluntarily agreed to have it conducted on his
vehicle and traveling bag, which is not the case with Aruta.
In an attempt to further justify the warrantless search, the Solicitor General next argues that the
police officers would have encountered difficulty in securing a search warrant as it could be
secured only if accused-appellant’s name was known, the vehicle identified and the date of its
arrival certain, as in the Aminnudin case where the arresting officers had forty-eight hours within
which to act.
This argument is untenable.
Article IV, Section 3 of the Constitution provides:
. . . [N]o search warrant or warrant of arrest shall issue except upon probable cause to be
determined by the judge, or such other responsible officer as may be authorized by law, after
examination under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be seized. (Emphasis
supplied)
Search warrants to be valid must particularly describe the place to be searched and the persons or
things to be seized. The purpose of this rule is to limit the things to be seized to those and only
those, particularly described in the warrant so as to leave the officers of the law with no discretion
regarding what articles they shall seize to the end that unreasonable searches and seizures may not
be made. 30
Had the NARCOM agents only applied for a search warrant, they could have secured one without
too much difficulty, contrary to the assertions of the Solicitor General. The person intended to be
searched has been particularized and the thing to be seized specified. The time was also
sufficiently ascertained to be in the afternoon of December 14, 1988. “Aling Rosa” turned out to
be accused-appellant and the thing to be seized was marijuana. The vehicle was identified to be a
Victory Liner bus. In fact, the NARCOM agents purposely positioned themselves near the spot
where Victory Liner buses normally unload their passengers. Assuming that the NARCOM agents
failed to particularize the vehicle, this would not in any way hinder them from securing a search
warrant. The above particulars would have already sufficed. In any case, this Court has held that
the police should particularly describe the place to be searched and the person or things to be
seized, wherever and whenever it is feasible. 31 (Emphasis supplied)
While it may be argued that by entering a plea during arraignment and by actively participating in
the trial, accused-appellant may be deemed to have waived objections to the illegality of the
warrantless search and to the inadmissibility of the evidence obtained thereby, the same may not
apply in the instant case for the following reasons:
1. The waiver would only apply to objections pertaining to the illegality of the arrest as her plea
of “not guilty” and participation in the trial are indications of her voluntary submission to the
court’s jurisdiction. 32 The plea and active participation in the trial would not cure the illegality of
the search and transform the inadmissible evidence into objects of proof. The waiver simply does
not extend this far.
2. Granting that evidence obtained through a warrantless search becomes admissible upon failure
to object thereto during the trial of the case, records show that accused-appellant filed a Demurrer
to Evidence and objected and opposed the prosecution’s Formal Offer of Evidence.
It is apropos to quote the case of People v. Barros, 33 which stated:
It might be supposed that the non-admissibility of evidence secured through an invalid
warrantless arrest or a warrantless search and seizure may be waived by an accused person. The a
priori argument is that the invalidity of an unjustified warrantless arrest, or an arrest effected with
a defective warrant of arrest may be waived by applying for and posting of bail for provisional
liberty, so as to estop an accused from questioning the legality or constitutionality of his detention
or the failure to accord him a preliminary investigation. We do not believe, however, that waiver
of the latter necessarily constitutes, or carries with it, waiver of the former — an argument that the
Solicitor General appears to be making impliedly. Waiver of the non-admissibility of the “fruits”
of an invalid warrantless arrest and of a warrantless search and seizure is not casually to be
presumed, if the constitutional right against unlawful searches and seizures is to retain its vitality
for the protection of our people. In the case at bar, defense counsel had expressly objected on
constitutional grounds to the admission of the carton box and the four (4) kilos of marijuana when
these were formally offered in evidence by the prosecution. We consider that appellant’s objection
to the admission of such evidence was made clearly and seasonably and that, under the
circumstances, no intent to waive his rights under the premises can be reasonably inferred from
his conduct before or during the trial. (Emphasis supplied).
In fine, there was really no excuse for the NARCOM agents not to procure a search warrant
considering that they had more than twenty-four hours to do so. Obviously, this is again an
instance of seizure of the “fruit of the poisonous tree,” hence illegal and inadmissible
subsequently in evidence.
The exclusion of such evidence is the only practical means of enforcing the constitutional
injunction against unreasonable searches and seizure. The non-exclusionary rule is contrary to the
letter and spirit of the prohibition against unreasonable searches and seizures. 34
While conceding that the officer making the unlawful search and seizure may be held criminally
and civilly liable, the Stonehill case observed that most jurisdictions have realized that the
exclusionary rule is “the only practical means of enforcing the constitutional injunction” against
abuse. This approach is based on the justification made by Judge Learned Hand that “only in case
the prosecution which itself controls the seizing officials, knows that it cannot profit by their
wrong, will the wrong be repressed.” 35
Unreasonable searches and seizures are the menace against which the constitutional guarantees
afford full protection. While the power to search and seize may at times be necessary to the public
welfare, still it may be exercised and the law enforced without transgressing the constitutional
rights of the citizens, for the enforcement of no statute is of sufficient importance to justify
indifference to the basic principles of government. 36
Those who are supposed to enforce the law are not justified in disregarding the rights of the
individual in the name of order. Order is too high a price to pay for the loss of liberty. As Justice
Holmes declared: “I think it is less evil that some criminals escape than that the government
should play an ignoble part.” It is simply not allowed in free society to violate a law to enforce
another, especially if the law violated is the Constitution itself. 37
WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court, Branch 73,
Olongapo City, is hereby REVERSED and SET ASIDE. For lack of evidence to establish her guilt
beyond reasonable doubt, accused-appellant ROSA ARUTA Y MENGUIN is hereby
ACQUITTED and ordered RELEASED from confinement unless she is being held for some other
legal grounds. No costs.
SO ORDERED.
G.R. No. 125687 December 9, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
DELFIN RONDERO, accused-appellant.

PER CURIAM:

When an accused appeals from the judgment of the trial court, he waives the constitutional
safeguard against double jeopardy and throws the whole case open for review of the appellate
court, which is then called to render such judgment as law and justice dictate, whether favorable
or unfavorable. 1 With this precept in mind, this Court as the ultimate dispenser of justice, will not
hesitate to render the proper imposable penalty, whenever it sees fit, even the supreme penalty of
death.

Before us is an appeal from a decision rendered by the Regional Trial Court of Dagupan City,
Branch 41, sentencing herein accused-appellant Delfin Rondero y Sigua to suffer the penalty of
reclusion perpetua for the crime of homicide.

The facts of the case are as follows:

On the evening of March 25, 1994, Mardy Doria came home late from a barrio fiesta. When he
noticed that his nine year old sister, Mylene, was not around, he woke up his parents to inquire
about his sister's whereabouts. Realizing that Mylene was missing, their father, Maximo Doria,
sought the help of a neighbor, Barangay Kagawad Andong Rondero to search for Mylene.
Maximo and Andong went to the house of a Barangay Captain to ask for assistance and also
requested their other neighbors in Pugaro, Dagupan to look for Mylene.

The group began searching for Mylene at around 1:00 o'clock in the morning of March 26, 1994.
They scoured the campus of Pugaro Elementary School and the seashore in vain. They even
returned to the school and inspected every classroom but to no avail. Tired and distraught,
Maximo started on his way home. When he was about five (5) meters away from his house,
Maximo, who was then carrying a flashlight, saw herein accused-appellant Delfin Rondero
pumping the artesian well about one (1) meter away. Accused-appellant had an ice pick clenched
in his mouth and was washing his bloodied hands. 2

Maximo hastily returned to the school and told Kagawad Andong what he saw without, however,
revealing that the person he saw was the latter's own
son. 3 Maximo and Andong continued their search for Mylene but after failing to find her, the two
men decided to go home. After some time, a restless Maximo began to search anew for her
daughter. He again sought the help of Andong and the barangay secretary. The group returned to
Pugaro Elementary School where they found Mylene's lifeless body lying on a cemented
pavement near the canteen. 4 Her right hand was raised above her head, which was severely
bashed, and her fractured left hand was behind her back. She was naked from the waist down and
had several contusions and abrasions on different parts of her body. Tightly gripped in her right
hand were some hair strands. A blue rubber slipper with a tiny leaf painted in red was found
beside her body while the other slipper was found behind her back.

Half an hour later, five (5) policemen arrived at the scene and conducted a spot investigation.
They found a pair of shorts 5 under Mylene's buttocks, which Maximo identified as hers.
Thereafter, Maximo led the policemen to the artesian well where he had seen accused-appellant
earlier washing his hands. The policemen found that the artesian well was spattered with blood. 6
After the investigation, the policemen, together with Maximo, went back to their headquarters in
Dagupan City. There, Maximo disclosed that before they found Mylene's body, he saw accused-
appellant washing his bloodstained hands at the artesian well. 7 Acting on this lead, the policemen
returned to Pugaro and arrested accused-appellant.

An autopsy of the body of the victim conducted by the Assistant City Health Officer of Dagupan
City, Dr. Tomas G. Cornel, revealed the following injuries:

EXTERNAL FINDINGS

1. Contusion hematoma, anterior chest wall, along the midclavicular line, level of the 2nd
intercostal space, right.

2. Contusion hematoma, along the parasternal line, level of the 1st intercostal space, left.

3. Contusion hematoma, posterior aspect, shoulder, left.

4. Contusion hematoma, anterior axillary line, level of the 3rd intercostal space, left.

5. Contusion hematoma, anterior aspect, neck.

6. Contusion hematoma, lower jaw, mid portion.

7. Contusion hematoma, periorbital, right.

8. Lacerated wound, 1" x 1/2" x 1/2", maxillary area, right.

9. Contusion hematoma, temporal area, left.

10. Contusion hematoma, mid frontal area.

11. Lacerated wound 1/2" x 1/4" x 1/4", frontal area, left.

12. Contusion hematoma, occipital area, right.

13. Abrasion, medial anterior aspect, elbow, left.

14. Abrasion, lateral aspect, buttock, right.

15. Abrasion, antero lateral aspect, iliac crest, right.

16. Contusion hematoma, upper lip.

17. Avulsion, upper central and lateral incisors.

18. Fresh laceration of the hymen at 1:00 o'clock, 6:00 o'clock and 9:00 o'clock position.
Fresh laceration of the labia minora at 6:00 o'clock and 9:00 o'clock position.

INTERNAL FINDINGS

Massive intracranial hemorrhage with brain tissue injury. Fracture of the right occipital bone.

Note:

Vaginal smear was done at the Gov. Teofilo Sison Memorial Prov'l Hosp. laboratory and the result
showed no sperm cell seen. (March 26, 1994)

Cause of death: Cardio Respiratory Arrest

Due to: Massive Intracranial Hemorrhage Traumatic 8

For Mylene's burial, her parents spent P5,043.00 during her wake, 9 P9,000.00 for funeral
expenses 10 and P850.00 for church services and entombment. 11

On March 28, 1994, the hair strands which were found on the victim's right hand and at the scene
of the crime, together with hair specimens taken from the victim and accused-appellant, were sent
to the National Bureau of Investigation (NBI) for laboratory examination. 12
Meanwhile, on March 30, 1994, accused-appellant was formally charged with the special
complex crime of rape with homicide in an information which reads:

The undersigned 4th Assistant City Prosecutor accuses DELFIN RONDERO y Sigua, of Pugaro
District, Dagupan City, of the crime of RAPE WITH HOMICIDE, committed as follows:

That on or about the 26th day of March, 1994, in the city of Dagupan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused DELFIN RONDERO y Sigua, did
then and there, wilfully, unlawfully, criminally and forcibly have carnal knowledge with one
MYLENE J. DORIA, a 9-year old girl, against her will and consent, and thereafter, with intent to
kill, criminally and unlawfully employed violence against her person, thereby causing the death of
said MYLENE J. DORIA, as evidenced by the Autopsy Report issued by Dr. Tomas G. Cornel,
Asst. City Health Officer, this city, to the damage and prejudice of the legal heirs of said
deceased, MYLENE J. DORIA in the amount of not less than FIFTY THOUSAND PESOS
(P50,000.00), Philippine currency, and other consequential damages.

Contrary to Article 335 in relation to Article 249 of the Revised Penal Code.

Accused-appellant pleaded not guilty at his arraignment. In the meantime, the NBI sent a fax
message to the Dagupan City Police Station saying that it could not conduct an examination on
the hair strands because the proper comparative specimens were not given. The NBI suggested
that hair strands be pulled, not cut, from the suspect and from the victim on the four regions of
their heads so that all parts of the hair strands, from root to tip, may be presented. 13 Thereupon,
accused-appellant, who executed a "waiver of detention" including a waiver of the provisions of
Section 12, Article III of the Constitution on the rights of the accused during custodial
investigation, 14 was allegedly convinced by a certain Major Wendy Ocampo to give sample hair
strands. Another police officer went to the Doria's residence to get hair samples from Mylene,
who had not yet been interred. The hair strands taken from accused-appellant and the victim were
later indorsed to the NBI for laboratory testing. 15 Comparative micro-physical examination on
the specimens showed that the hair strands found on the right hand of the victim had similar
characteristics to those of accused-appellant's, while the hair specimen taken from the crime scene
showed similar characteristics to those of the victim's. 16 Alicia P. Liberato, the NBI Senior
Forensic Chemist who conducted the microscopic examination on the hair samples, later
reiterated the aforesaid findings in court. 17

At the trial, Dr. Cornel, the physician who conducted the autopsy on Mylene at around 9:30
o'clock in the morning of March 26, 1994, testified that the victim's death probably occurred
before 11:00 o'clock in the evening of March 25, 1994 judging from the rigidity of her lower and
upper extremities. He explained that the contusions and hematoma found on Mylene's body were
possibly caused by a blunt instrument, a clenched fist or a piece of wood. 18 The lacerated
wounds on her face may have been caused by a bladed instrument, not necessarily sharp, or by
hitting her head on a concrete wall with jagged edges. The abrasions on her elbow, right buttock
and upper hip may have been caused by a rough object that came in contact with her skin. 19 Dr.
Cornel also explained that the victim's upper and lateral incisors may have been avulsed by a
sudden blow in the mouth using a blunt instrument, stone or wood. He added that the fresh
hymenal lacerations at 1:00 o'clock, 6:00 o'clock and 9:00 o'clock positions and the fresh
laceration of the labia minora at 6:00 o'clock and 9:00 o'clock positions could have been caused
either by sexual intercourse or by an object forcibly inserted in Mylene's vagina. 20

Accused-appellant resolved not to testify at the trial, opting instead to present his wife and his
father as witnesses to account for his whereabouts on the night of the gruesome incident.

Christine Gonzales, wife of accused-appellant, testified that on March 25, 1994, at around 7:00
o'clock in the evening, she had a quarrel with her husband. Accused-appellant was then slightly
drunk and apparently irked when supper was not yet ready. He slapped his wife and shouted
invectives at her, causing a disturbance in the neighborhood and prompting his father, who lived
just a house away, to intervene. When accused-appellant refused to be pacified, his father hit him
in the nose, mouth and different parts of the body. 21 His father left accused-appellant profusely
bleeding. Accused-appellant then changed his blood-stained clothes and went to bed with his
wife. It was a little after 8:00 o'clock in the evening.

Christine woke up the next day at around 7:00 o'clock in the morning. She washed some clothes
including the blood-stained ones her husband wore the night before. After doing the laundry, she
went out to pay her father a visit. On her way back home, Christine was informed by a child that
her husband was arrested by the police. Christine rushed home and found some policemen taking
the newly washed undershirt and short pants of accused-appellant from the clothesline. The
policemen brought Christine with them to the police headquarters for questioning. When asked
about the blood on her husband's clothes, Christine told them about their quarrel the night before.
22

Accused-appellant's father, Leonardo Rondero, corroborated Christine's story. He testified that on

the night in question, at around 7:00 o'clock in the evening, he was resting at home, located only a
house away from his son's, when he heard the latter having a heated discussion with Christine.
Embarrassed at the scene that his son was creating at such an hour, Leonardo went to the couple's
house to pacify the slightly inebriated accused-appellant. Accused-appellant ignored his father and
continued shouting at his wife. Leonardo then hit him several times causing his nose and mouth to
bleed profusely that it stained his sando and short pants. Startled at the injuries that his son
sustained, Leonardo went home. Early the next morning, March 26, 1994, at around 1:30 o'clock,
Leonardo was awakened by his neighbor, Maximo Doria, who sought his assistance to search for
his missing nine-year old daughter Mylene. Leonardo willingly obliged. Thus, Maximo, Leonardo
and the barangay secretary searched the nearby houses for hours but failed to find Mylene. 23
On October 13, 1995, the trial court rendered judgment 24 convicting accused-appellant of the
crime of murder and sentencing him to death. The dispositive portion of the decision reads:

WHEREFORE:

For the crime you had wilfully and deliberately committed, this court finds you guilty beyond
reasonable doubt of the crime of murder defined and punished by Section 6 of Republic Act No.
7659, in relation to Article 248 of the Revised Penal Code, together with all its attendant
aggravating circumstances without any mitigating circumstance of whatever nature.

You, Delfin Rondero, are hereby therefore sentenced to die by electrocution pursuant to Article 81
of Republic Act No. 7659, for your heinous crime as charged in the information as a punishment
and as an example to future offenders.

You are hereby further ordered to indemnify the heirs of the victim by paying to them an amount
of P60,000.00 for the loss of life of Mylene J. Doria; P15,000.00 for consequential damages and
P100,000.00 as moral damages.

May God have mercy on your soul.

SO ORDERED. 25

Accused-appellant moved for reconsideration. On November 10, 1995, the trial court issued an
order modifying its earlier decision, convicting accused-appellant of the crime of homicide and
sentencing him to suffer the penalty of reclusion perpetua instead, on the ground that under
Section 10 of Republic Act. No. 7610, otherwise known as the "Special Protection of Children
Against Child Abuse, Exploitation and Discrimination Act," the penalty for homicide is reclusion
perpetua when the victim is under twelve (12) years of age. 26

In this appeal, accused-appellant raises the following assignment of errors:

I. THE LOWER COURT ERRED IN FINDING ACCUSED-APPELLANT GUILTY OF

THE CRIME OF MURDER AMENDED TO HOMICIDE AND SENTENCING HIM TO
SUFFER LIFE IMPRISONMENT (sic) AND TO INDEMNIFY THE AGGRIEVED PARTY IN
THE AMOUNT OF P175,000.00 BASED ONLY ON CIRCUMSTANTIAL EVIDENCE.

II. THE LOWER COURT COMMITTED GRAVE ERROR IN CONVICTING THE

ACCUSED OF HOMICIDE.
III. THE LOWER COURT COMMITTED GRAVE ERROR IN FINDING ACCUSED
GUILTY TO (sic) THE CRIME OF HOMICIDE DESPITE ILLEGAL ARREST AND ILLEGAL
DETENTION OF ACCUSED-APPELLANT. 27

The appeal has no merit.

Accused-appellant argues that the circumstantial evidence presented by the prosecution is not
strong enough to sustain his conviction, asserting that Maximo Doria's testimony that he saw him
about a meter away washing his bloodied hands at an artesian well was highly improbable
inasmuch as it was dark at that time. Accused-appellant also considered it strange that when
Maximo saw him, he did not bother to ask if he had seen Mylene. Finally, accused-appellant
alleges that the slippers presented in court as evidence are not the same ones which were
recovered at the scene of the crime since the pictures presented in court did not show the leaf
painted in red on the left slipper.

Sec. 4, Rule 133 of the Revised Rules of Court provides:

Sec. 4. Circumstantial evidence, when sufficient. — Circumstantial evidence is sufficient for

conviction if:

(a) There is more than one circumstances;

(b) The facts from which the inferences are derived are proven; and

(c) The combination of all the circumstances is such as to produce a conviction beyond
reasonable doubt.

Circumstantial evidence is that evidence which proves a fact or series of facts from which the
facts in issue may be established by inference. 28 Such evidence is founded on experience and
observed facts and coincidences establishing a connection between the known and proven facts
and the facts sought to be proved. 29 Circumstantial evidence is sufficient for conviction in
criminal cases when there is more than one circumstance, derived from facts duly given and the
combination of all is such as to produce conviction beyond reasonable doubt. The test for
accepting circumstantial evidence as proof of guilt beyond reasonable doubt is: the series of
circumstances duly proved must be consistent with each other and that each and every
circumstance must be consistent with the accused's guilt and inconsistent with his innocence.

In the case at bar, the prosecution avers that there are several circumstances availing which, when
pieced together, point to accused-appellant as the author of the gruesome crime committed on the
night of March 25, 1994, to wit:
1. A few hours after the victim's probable time of death, Maximo saw accused-appellant,
with an ice pick clenched in his mouth, washing his bloodied hands at an artesian well. 30

2 A pair of slippers which Maximo identified as belonging to accused-appellant was found

at the scene of the crime. One was found beside the victim's body while the other was under her
buttocks. 31 Maximo positively pointed to accused-appellant as the owner of the pair of slippers
because of a distinguishing mark of the painting of a red leaf on the left slipper. Maximo said
accused-appellant used to frequent their house wearing the same pair of slippers for over a year.
32

3. The hair strands which were found on Mylene's right hand and the hair strands taken from
accused-appellant were shown to have similar characteristics when subjected to microscopic
examination. 33

4. Accused-appellant's undershirt and short pants which he wore on the night of March 25,
1994 had bloodstains. His wife admitted having washed the undershirt and short pants in the early
morning of March 26, 1994. 34

Contrary to the allegations of accused-appellant, the evidence presented by the prosecution is

sufficient to sustain his conviction. Maximo stated on the witness stand that he was able to
identify accused-appellant because he focused his flashlight on him while he was washing his
bloodstained hands at an artesian well located only a meter away from where Maximo was
standing. 35 Maximo considered it wise not to talk to accused-appellant because at that time he
had an ice pick clenched in his mouth and looked slightly drunk. As to the allegation that the
slippers presented in court were not the same ones recovered at the scene of the crime, suffice it to
say that the photographs taken of the crime scene were not focused only on the pair of slippers;
hence, the red leaf may be too minuscule to be noticed. In any case, the pair of slippers shown in
the photographs corroborate the testimony of the prosecution's witnesses that a pair of rubber
slippers were indeed recovered at the scene.

It might not be amiss to note that Maximo was not shown to have had any motive to impute so
grave a wrong on accused-appellant. Prior to the incident, accused-appellant used to frequent
Maximo's house for a visit. 36 On the night of the incident, Maximo even sought the help of
accused-appellant's father to search for Mylene.

On the other hand, the testimonies of the witnesses for the defense are incredulous, to say the
least. Leonardo Rondero, accused-appellant's father, testified that he mauled his son in an effort to
pacify him during a heated altercation with his wife, Christine. Leonardo said that he felt
embarrassed because his son was shouting invectives at Christine and was causing a scene in the
neighborhood so he hit the accused-appellant several times. Leonardo's curious way of pacifying
his son resulted in bodily injuries on the latter. Strangely, despite his sustained injuries and
profuse bleeding, accused-appellant and his wife just went to sleep after Leonardo left. 37 We find
it unnatural that a father, a barangay kagawad, would repeatedly hit his son in an effort to pacify
him in the middle of a marital spat. We find it even more unnatural that one who was bleeding
profusely would act so insouciant as to just go to sleep without attending to his injuries.

Accused-appellant alleges that while in the custody of police officers, some hair strands were
taken from him without his consent and submitted to the NBI for investigation, in violation of his
right against self incrimination. Aside from executing a waiver of the provisions of Article 125 of
the Revised Penal Code, accused-appellant executed a waiver of the provisions of Article III,
Section 12 of the Constitution regarding the rights of an accused during custodial investigation.
38 It appears, however, that the waivers were executed by the accused without the assistance of a
counsel of his own choice.

The use of evidence against the accused obtained by virtue of his testimony or admission without
the assistance of counsel while under custodial investigation is proscribed under Sections 12 and
17, Article III of the Constitution, to wit:

Sec. 12. (1) Any person under investigation for the commission of an offense shall have the
right to be informed of his right to remain silent and to have competent and independent counsel
preferably of his own choice. If the person cannot afford the services of counsel, he must be
provided with one. These rights cannot be waived except in writing and in the presence of
counsel.

(2) No torture, force, violence, threat, intimidation or any other means which vitiate the free
will shall be used against him. Secret detention places, solitary, incommunicado, or other similar
forms of detention are prohibited.

(3) Any confession or admission in violation of this or Section 17 hereof shall be inadmissible
in evidence against him.

xxx xxx xxx

Sec. 17. No person shall he compelled to be a witness against himself.

The aforesaid rules are set forth in the Constitution as a recognition of the fact that the
psychological if not physical atmosphere of custodial investigations in the absence of procedural
safeguards is inherently coercive in nature. However, to paraphrase Justice Sanchez in the case of
Chavez vs. Court of Appeals, 39 "Compulsion does not necessarily connote the use of violence; it
may be the product of unintentional statements. Pressure which operates to overbear his will,
disable him from making a free and rational choice or impair his capacity for making rational
judgment would be sufficient. So is moral coercion tending to force testimony from the unwilling
lips of the defendant." Needless to say, the above-mentioned provisions are an affirmation that
"coercion can be mental as well as physical and that the blood of the accused is not the only
hallmark of an unconstitutional inquisition." 40

It bears emphasis, however, that under the above-quoted provisions, what is actually proscribed is
the use of physical or moral compulsion to extort communication from the accused-appellant and
not the inclusion of his body in evidence when it may be material. For instance, substance emitted
from the body of the accused may be received as evidence in prosecution for acts of
lasciviousness 41 and morphine forced out of the mouth of the accused may also be used as
evidence against him. 42 Consequently, although accused-appellant insists that hair samples were
forcibly taken from him and submitted to the NBI for forensic examination, the hair samples may
be admitted in evidence against him, for what is proscribed is the use of testimonial compulsion
or any evidence communicative in nature acquired from the accused under duress.

On the other hand, the blood-stained undershirt and short pants taken from the accused are
inadmissible in evidence. They were taken without the proper search warrant from the police
officers. Accused-appellant's wife testified that the police officers, after arresting her husband in
their house, took the garments from the clothesline without proper authority. 43 This was never
rebutted by the prosecution. Under the libertarian exclusionary rule known as the "fruit of the
poisonous tree," evidence illegally obtained by the state should not be used to gain other evidence
because the illegally obtained evidence taints all evidence subsequently obtained. Simply put,
accused-appellant's garments, having been seized in violation of his constitutional right against
illegal searches and seizure, are inadmissible in court as evidence.

Nevertheless, even without the admission of the bloodied garments of the accused as
corroborative evidence, the circumstances obtaining against accused-appellant are sufficient to
establish his guilt.

Having disposed of the foregoing, we now come to the issue of whether accused-appellant should
be convicted of the special complex crime of rape with homicide.

It is a jurisprudential rule that an appeal throws a whole case to review and it becomes the duty of
the appellate court to correct such error as may be found in the judgment appealed from whether
they are made the subject of assigned errors or not. 44

The trial court dismissed the charge of rape holding that it has not been adequately proven due to
the absence of spermatozoa in the victim's private part. It is well settled that the absence of
spermatozoa in the victim's private part does not negate the commission of rape for the simple
reason that the mere touching of the pudenda by the male organ is already considered as
consummated rape. Mylene Doria was naked from waist down when she was found. Her private
organ had hymenal lacerations at 1:00 o'clock, 6:00 o'clock and 9:00 o'clock positions. There
were fresh lacerations in the labia minora at 6:00 o'clock and 9:00 o'clock positions as well. The
trial judge even noted that "it can be conclusively deduced that her sex organ was subjected to a
humiliating punishment." While the examining physician speculated that the lacerations could
have been caused by a piece of wood or rounded object, he did not rule out the possibility of
forcible sexual intercourse.

The presence of physical injuries on the victim strongly indicates the employment of force on her
person. Contusion was found on Mylene's face, arms and thighs. In rape cases, when a woman is
forcibly made to lie down, she will utilize her elbow as the fulcrum so that abrasions will be
observed. In an attempt to stand, the victim will flex her neck forward. The offender will then
push her head backwards, causing hematoma at the region of the occiput. To prevent penetration
of the male organ, she will try to flex her thighs and the offender will give a strong blow to the
inner aspects of both thighs so that the victim will be compelled to straighten them. 45

As aptly observed by the Solicitor General, aside from the hymenal lacerations, the examining
physician testified that Mylene sustained abrasions on her left elbow, right buttock and right upper
hip and contusion hematoma at the occipital area, i.e., back part of the head, right side. 46 Indeed,
the physical evidence indubitably tells a harrowing crime committed against nine-year old Mylene
Doria in a manner that no words can sufficiently describe.

Anent accused-appellant's third assignment of error, it might be true that accused-appellant's

warrantless arrest was not lawful. The police officers who arrested him had no personal
knowledge of facts indicating that he was the perpetrator of the crime just committed. His
warrantless arrest was not based on a personal knowledge of the police officers indicating facts
that he has committed the gruesome crime but solely on Maximo's suspicion that he was involved
in the slaying of Mylene since he was seen washing his bloodied hands in the early morning of
March 26, 1994. 47 Nevertheless, it is hornbook knowledge that any irregularity attending the
arrest of an accused is deemed waived when, instead of quashing the information for lack of
jurisdiction over his person, the accused voluntarily submits himself to the court by entering a
plea of guilty or not guilty during the arraignment and participating in the proceedings.

Finally, we reiterate that when an accused appeals from the sentence of the trial court, he waives
the constitutional safeguard against double jeopardy and throws the whole case open to the review
of the appellate court, which is then called to render judgment as the law and justice dictate,
whether favorable or unfavorable, and whether they are made the subject of assigned errors or
not. This precept should be borne in mind by every lawyer of an accused who unwittingly takes
the risk involved when he decides to appeal his sentence.

Accused-appellant's guilt having been established beyond reasonable doubt for the rape and brutal
slaying of Mylene Doria, this Court has no other recourse but to impose the penalty of death upon
accused-appellant Delfin Rondero y Sigua. Under Article 335 of the Revised Penal Code, as
amended by Republic Act No. 7659, "when by reason or on occasion of the rape, a homicide is
committed, the penalty shall be death." At this juncture, it should be stated that four justices of the
court have continued to maintain the unconstitutionality of R.A. No. 7659 insofar as it prescribes
the death penalty; nevertheless, they submit to the ruling of the majority to the effect that this law
is constitutional and that the death penalty can be lawfully imposed in the case at bar.

The award of P50,000.00 as indemnity to the heirs of the victim is increased to P75,000.00 in line
with our ruling in People vs. Mahinay. 48 The award of moral damages in the sum of P100,000.00
is reduced to P50,000.00. Further, accused-appellant is ordered to pay the sum of P15,000.00 as
consequential damages.

WHEREFORE, the decision of the Regional Trial Court, Branch 41, Dagupan City finding
accused-appellant Delfin Rondero y Sigua guilty beyond reasonable doubt of the crime of
homicide is MODIFIED. Accused-appellant Delfin Rondero y Sigua is found guilty beyond
reasonable doubt of the charge of special complex crime of rape with homicide committed against
Mylene J. Doria and is accordingly sentenced to suffer the supreme penalty of DEATH. He is also
ordered to pay the heirs of the victim the sum of P75,000.00 by way of civil indemnity,
P50,000.00 as moral damages and P15,000.00 as consequential damages.

In accordance with Section 25 of Republic Act No. 7659, amending Article 83 of the Revised
Penal Code, upon finality of this decision, let the records of this case be forwarded to the Office
of the President for possible exercise of pardoning power.

SO ORDERED.
G.R. No. L-64261 December 26, 1984

JOSE BURGOS, SR., JOSE BURGOS, JR., BAYANI SORIANO and J. BURGOS MEDIA
SERVICES, INC., petitioners,
vs.
THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, THE CHIEF, PHILIPPINE
CONSTABULARY, THE CHIEF LEGAL OFFICER, PRESIDENTIAL SECURITY
COMMAND, THE JUDGE ADVOCATE GENERAL, ET AL., respondents.

Lorenzo M. Tañada, Wigberto E. Tañada, Martiniano Vivo, Augusto Sanchez, Joker P. Arroyo,
Jejomar Binay and Rene Saguisag for petitioners.

The Solicitor General for respondents.

ESCOLIN, J.:

Assailed in this petition for certiorari prohibition and mandamus with preliminary mandatory and
prohibitory injunction is the validity of two [2] search warrants issued on December 7, 1982 by
respondent Judge Ernani Cruz-Pano, Executive Judge of the then Court of First Instance of Rizal
[Quezon City], under which the premises known as No. 19, Road 3, Project 6, Quezon City, and
784 Units C & D, RMS Building, Quezon Avenue, Quezon City, business addresses of the
"Metropolitan Mail" and "We Forum" newspapers, respectively, were searched, and office and
printing machines, equipment, paraphernalia, motor vehicles and other articles used in the
printing, publication and distribution of the said newspapers, as well as numerous papers,
documents, books and other written literature alleged to be in the possession and control of
petitioner Jose Burgos, Jr. publisher-editor of the "We Forum" newspaper, were seized.

Petitioners further pray that a writ of preliminary mandatory and prohibitory injunction be issued
for the return of the seized articles, and that respondents, "particularly the Chief Legal Officer,
Presidential Security Command, the Judge Advocate General, AFP, the City Fiscal of Quezon
City, their representatives, assistants, subalterns, subordinates, substitute or successors" be
enjoined from using the articles thus seized as evidence against petitioner Jose Burgos, Jr. and the
other accused in Criminal Case No. Q- 022782 of the Regional Trial Court of Quezon City,
entitled People v. Jose Burgos, Jr. et al. 1

In our Resolution dated June 21, 1983, respondents were required to answer the petition. The plea
for preliminary mandatory and prohibitory injunction was set for hearing on June 28, 1983, later
reset to July 7, 1983, on motion of the Solicitor General in behalf of respondents.
At the hearing on July 7, 1983, the Solicitor General, while opposing petitioners' prayer for a writ
of preliminary mandatory injunction, manifested that respondents "will not use the
aforementioned articles as evidence in the aforementioned case until final resolution of the
legality of the seizure of the aforementioned articles. ..." 2 With this manifestation, the prayer for
preliminary prohibitory injunction was rendered moot and academic.

Respondents would have this Court dismiss the petition on the ground that petitioners had come
to this Court without having previously sought the quashal of the search warrants before
respondent judge. Indeed, petitioners, before impugning the validity of the warrants before this
Court, should have filed a motion to quash said warrants in the court that issued them. 3 But this
procedural flaw notwithstanding, we take cognizance of this petition in view of the seriousness
and urgency of the constitutional issues raised not to mention the public interest generated by the
search of the "We Forum" offices, which was televised in Channel 7 and widely publicized in all
metropolitan dailies. The existence of this special circumstance justifies this Court to exercise its
inherent power to suspend its rules. In the words of the revered Mr. Justice Abad Santos in the
case of C. Vda. de Ordoveza v. Raymundo, 4 "it is always in the power of the court [Supreme
Court] to suspend its rules or to except a particular case from its operation, whenever the purposes
of justice require it...".

Respondents likewise urge dismissal of the petition on ground of laches. Considerable stress is
laid on the fact that while said search warrants were issued on December 7, 1982, the instant
petition impugning the same was filed only on June 16, 1983 or after the lapse of a period of more
than six [6] months.

Laches is failure or negligence for an unreasonable and unexplained length of time to do that
which, by exercising due diligence, could or should have been done earlier. It is negligence or
omission to assert a right within a reasonable time, warranting a presumption that the party
entitled to assert it either has abandoned it or declined to assert it. 5

Petitioners, in their Consolidated Reply, explained the reason for the delay in the filing of the
petition thus:

Respondents should not find fault, as they now do [p. 1, Answer, p. 3, Manifestation] with the fact
that the Petition was filed on June 16, 1983, more than half a year after the petitioners' premises
had been raided.

The climate of the times has given petitioners no other choice. If they had waited this long to
bring their case to court, it was because they tried at first to exhaust other remedies. The events of
the past eleven fill years had taught them that everything in this country, from release of public
funds to release of detained persons from custody, has become a matter of executive benevolence
or largesse
Hence, as soon as they could, petitioners, upon suggestion of persons close to the President, like
Fiscal Flaminiano, sent a letter to President Marcos, through counsel Antonio Coronet asking the
return at least of the printing equipment and vehicles. And after such a letter had been sent,
through Col. Balbino V. Diego, Chief Intelligence and Legal Officer of the Presidential Security
Command, they were further encouraged to hope that the latter would yield the desired results.

After waiting in vain for five [5] months, petitioners finally decided to come to Court. [pp. 123-
124, Rollo]

Although the reason given by petitioners may not be flattering to our judicial system, We find no
ground to punish or chastise them for an error in judgment. On the contrary, the extrajudicial
efforts exerted by petitioners quite evidently negate the presumption that they had abandoned
their right to the possession of the seized property, thereby refuting the charge of laches against
them.

Respondents also submit the theory that since petitioner Jose Burgos, Jr. had used and marked as
evidence some of the seized documents in Criminal Case No. Q- 022872, he is now estopped
from challenging the validity of the search warrants. We do not follow the logic of respondents.
These documents lawfully belong to petitioner Jose Burgos, Jr. and he can do whatever he pleases
with them, within legal bounds. The fact that he has used them as evidence does not and cannot in
any way affect the validity or invalidity of the search warrants assailed in this petition.

Several and diverse reasons have been advanced by petitioners to nullify the search warrants in
question.

1. Petitioners fault respondent judge for his alleged failure to conduct an examination under oath
or affirmation of the applicant and his witnesses, as mandated by the above-quoted constitutional
provision as wen as Sec. 4, Rule 126 of the Rules of Court . 6 This objection, however, may
properly be considered moot and academic, as petitioners themselves conceded during the hearing
on August 9, 1983, that an examination had indeed been conducted by respondent judge of Col.
Abadilla and his witnesses.

2. Search Warrants No. 20-82[a] and No. 20- 82[b] were used to search two distinct places: No.
19, Road 3, Project 6, Quezon City and 784 Units C & D, RMS Building, Quezon Avenue,
Quezon City, respectively. Objection is interposed to the execution of Search Warrant No. 20-
82[b] at the latter address on the ground that the two search warrants pinpointed only one place
where petitioner Jose Burgos, Jr. was allegedly keeping and concealing the articles listed therein,
i.e., No. 19, Road 3, Project 6, Quezon City. This assertion is based on that portion of Search
Warrant No. 20- 82[b] which states:
Which have been used, and are being used as instruments and means of committing the crime of
subversion penalized under P.D. 885 as amended and he is keeping and concealing the same at 19
Road 3, Project 6, Quezon City.

The defect pointed out is obviously a typographical error. Precisely, two search warrants were
applied for and issued because the purpose and intent were to search two distinct premises. It
would be quite absurd and illogical for respondent judge to have issued two warrants intended for
one and the same place. Besides, the addresses of the places sought to be searched were
specifically set forth in the application, and since it was Col. Abadilla himself who headed the
team which executed the search warrants, the ambiguity that might have arisen by reason of the
typographical error is more apparent than real. The fact is that the place for which Search Warrant
No. 20- 82[b] was applied for was 728 Units C & D, RMS Building, Quezon Avenue, Quezon
City, which address appeared in the opening paragraph of the said warrant. 7 Obviously this is the
same place that respondent judge had in mind when he issued Warrant No. 20-82 [b].

In the determination of whether a search warrant describes the premises to be searched with
sufficient particularity, it has been held "that the executing officer's prior knowledge as to the
place intended in the warrant is relevant. This would seem to be especially true where the
executing officer is the affiant on whose affidavit the warrant had issued, and when he knows that
the judge who issued the warrant intended the building described in the affidavit, And it has also
been said that the executing officer may look to the affidavit in the official court file to resolve an
ambiguity in the warrant as to the place to be searched." 8

3. Another ground relied upon to annul the search warrants is the fact that although the
warrants were directed against Jose Burgos, Jr. alone, articles b belonging to his co-petitioners
Jose Burgos, Sr., Bayani Soriano and the J. Burgos Media Services, Inc. were seized.

Section 2, Rule 126 of the Rules of Court, enumerates the personal properties that may be seized
under a search warrant, to wit:

Sec. 2. Personal Property to be seized. — A search warrant may be issued for the search and
seizure of the following personal property:

[a] Property subject of the offense;

[b] Property stolen or embezzled and other proceeds or fruits of the offense; and

[c] Property used or intended to be used as the means of committing an offense.

The above rule does not require that the property to be seized should be owned by the person
against whom the search warrant is directed. It may or may not be owned by him. In fact, under
subsection [b] of the above-quoted Section 2, one of the properties that may be seized is stolen
property. Necessarily, stolen property must be owned by one other than the person in whose
possession it may be at the time of the search and seizure. Ownership, therefore, is of no
consequence, and it is sufficient that the person against whom the warrant is directed has control
or possession of the property sought to be seized, as petitioner Jose Burgos, Jr. was alleged to
have in relation to the articles and property seized under the warrants.

4. Neither is there merit in petitioners' assertion that real properties were seized under the disputed
warrants. Under Article 415[5] of the Civil Code of the Philippines, "machinery, receptables,
instruments or implements intended by the owner of the tenement for an industry or works which
may be carried on in a building or on a piece of land and which tend directly to meet the needs of
the said industry or works" are considered immovable property. In Davao Sawmill Co. v. Castillo
9 where this legal provision was invoked, this Court ruled that machinery which is movable by
nature becomes immobilized when placed by the owner of the tenement, property or plant, but not
so when placed by a tenant, usufructuary, or any other person having only a temporary right,
unless such person acted as the agent of the owner.

In the case at bar, petitioners do not claim to be the owners of the land and/or building on which
the machineries were placed. This being the case, the machineries in question, while in fact bolted
to the ground remain movable property susceptible to seizure under a search warrant.

5. The questioned search warrants were issued by respondent judge upon application of Col.
Rolando N. Abadilla Intelligence Officer of the P.C. Metrocom. 10 The application was
accompanied by the Joint Affidavit of Alejandro M. Gutierrez and Pedro U. Tango, 11 members
of the Metrocom Intelligence and Security Group under Col. Abadilla which conducted a
surveillance of the premises prior to the filing of the application for the search warrants on
December 7, 1982.

It is contended by petitioners, however, that the abovementioned documents could not have
provided sufficient basis for the finding of a probable cause upon which a warrant may validly
issue in accordance with Section 3, Article IV of the 1973 Constitution which provides:

SEC. 3. ... and no search warrant or warrant of arrest shall issue except upon probable
cause to be determined by the judge, or such other responsible officer as may be authorized by
law, after examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or things to be
seized.

We find petitioners' thesis impressed with merit. Probable cause for a search is defined as such
facts and circumstances which would lead a reasonably discreet and prudent man to believe that
an offense has been committed and that the objects sought in connection with the offense are in
the place sought to be searched. And when the search warrant applied for is directed against a
newspaper publisher or editor in connection with the publication of subversive materials, as in the
case at bar, the application and/or its supporting affidavits must contain a specification, stating
with particularity the alleged subversive material he has published or is intending to publish. Mere
generalization will not suffice. Thus, the broad statement in Col. Abadilla's application that
petitioner "is in possession or has in his control printing equipment and other paraphernalia, news
publications and other documents which were used and are all continuously being used as a
means of committing the offense of subversion punishable under Presidential Decree 885, as
amended ..." 12 is a mere conclusion of law and does not satisfy the requirements of probable
cause. Bereft of such particulars as would justify a finding of the existence of probable cause, said
allegation cannot serve as basis for the issuance of a search warrant and it was a grave error for
respondent judge to have done so.

Equally insufficient as basis for the determination of probable cause is the statement contained in
the joint affidavit of Alejandro M. Gutierrez and Pedro U. Tango, "that the evidence gathered and
collated by our unit clearly shows that the premises above- mentioned and the articles and things
above-described were used and are continuously being used for subversive activities in conspiracy
with, and to promote the objective of, illegal organizations such as the Light-a-Fire Movement,
Movement for Free Philippines, and April 6 Movement." 13

In mandating that "no warrant shall issue except upon probable cause to be determined by the
judge, ... after examination under oath or affirmation of the complainant and the witnesses he may
produce; 14 the Constitution requires no less than personal knowledge by the complainant or his
witnesses of the facts upon which the issuance of a search warrant may be justified. In Alvarez v.
Court of First Instance, 15 this Court ruled that "the oath required must refer to the truth of the
facts within the personal knowledge of the petitioner or his witnesses, because the purpose thereof
is to convince the committing magistrate, not the individual making the affidavit and seeking the
issuance of the warrant, of the existence of probable cause." As couched, the quoted averment in
said joint affidavit filed before respondent judge hardly meets the test of sufficiency established
by this Court in Alvarez case.

Another factor which makes the search warrants under consideration constitutionally
objectionable is that they are in the nature of general warrants. The search warrants describe the
articles sought to be seized in this wise:

1] All printing equipment, paraphernalia, paper, ink, photo (equipment, typewriters, cabinets,
tables, communications/recording equipment, tape recorders, dictaphone and the like used and/or
connected in the printing of the "WE FORUM" newspaper and any and all documents
communication, letters and facsimile of prints related to the "WE FORUM" newspaper.
2] Subversive documents, pamphlets, leaflets, books, and other publication to promote the
objectives and piurposes of the subversive organization known as Movement for Free Philippines,
Light-a-Fire Movement and April 6 Movement; and,

3] Motor vehicles used in the distribution/circulation of the "WE FORUM" and other
subversive materials and propaganda, more particularly,

1] Toyota-Corolla, colored yellow with Plate No. NKA 892;

2] DATSUN pick-up colored white with Plate No. NKV 969

3] A delivery truck with Plate No. NBS 524;

4] TOYOTA-TAMARAW, colored white with Plate No. PBP 665; and,

5] TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 427 with marking "Bagong Silang."

In Stanford v. State of Texas 16 the search warrant which authorized the search for "books,
records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written
instruments concerning the Communist Party in Texas," was declared void by the U.S. Supreme
Court for being too general. In like manner, directions to "seize any evidence in connectionwith
the violation of SDC 13-3703 or otherwise" have been held too general, and that portion of a
search warrant which authorized the seizure of any "paraphernalia which could be used to violate
Sec. 54-197 of the Connecticut General Statutes [the statute dealing with the crime of
conspiracy]" was held to be a general warrant, and therefore invalid. 17 The description of the
articles sought to be seized under the search warrants in question cannot be characterized
differently.

In the Stanford case, the U.S. Supreme Courts calls to mind a notable chapter in English history:
the era of disaccord between the Tudor Government and the English Press, when "Officers of the
Crown were given roving commissions to search where they pleased in order to suppress and
destroy the literature of dissent both Catholic and Puritan Reference herein to such historical
episode would not be relevant for it is not the policy of our government to suppress any
newspaper or publication that speaks with "the voice of non-conformity" but poses no clear and
imminent danger to state security.

As heretofore stated, the premises searched were the business and printing offices of the
"Metropolitan Mail" and the "We Forum newspapers. As a consequence of the search and seizure,
these premises were padlocked and sealed, with the further result that the printing and publication
of said newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the
press guaranteed under the fundamental law, 18 and constitutes a virtual denial of petitioners'
freedom to express themselves in print. This state of being is patently anathematic to a democratic
framework where a free, alert and even militant press is essential for the political enlightenment
and growth of the citizenry.

Respondents would justify the continued sealing of the printing machines on the ground that they
have been sequestered under Section 8 of Presidential Decree No. 885, as amended, which
authorizes "the sequestration of the property of any person, natural or artificial, engaged in
subversive activities against the government and its duly constituted authorities ... in accordance
with implementing rules and regulations as may be issued by the Secretary of National Defense."
It is doubtful however, if sequestration could validly be effected in view of the absence of any
implementing rules and regulations promulgated by the Minister of National Defense.

Besides, in the December 10, 1982 issue of the Daily Express, it was reported that no less than
President Marcos himself denied the request of the military authorities to sequester the property
seized from petitioners on December 7, 1982. Thus:

The President denied a request flied by government prosecutors for sequestration of the WE
FORUM newspaper and its printing presses, according to Information Minister Gregorio S.
Cendana.

On the basis of court orders, government agents went to the We Forum offices in Quezon City and
took a detailed inventory of the equipment and all materials in the premises.

Cendaña said that because of the denial the newspaper and its equipment remain at the disposal of
the owners, subject to the discretion of the court. 19

That the property seized on December 7, 1982 had not been sequestered is further confirmed by
the reply of then Foreign Minister Carlos P. Romulo to the letter dated February 10, 1983 of U.S.
Congressman Tony P. Hall addressed to President Marcos, expressing alarm over the "WE
FORUM " case. 20 In this reply dated February 11, 1983, Minister Romulo stated:

2. Contrary to reports, President Marcos turned down the recommendation of our authorities
to close the paper's printing facilities and confiscate the equipment and materials it uses. 21

IN VIEW OF THE FOREGOING, Search Warrants Nos. 20-82[a] and 20-82[b] issued by
respondent judge on December 7, 1982 are hereby declared null and void and are accordingly set
aside. The prayer for a writ of mandatory injunction for the return of the seized articles is hereby
granted and all articles seized thereunder are hereby ordered released to petitioners. No costs.
SO ORDERED.
G.R. No. 147571 May 5, 2001

SOCIAL WEATHER STATIONS, INCORPORATED and KAMAHALAN PUBLISHING

CORPORATION, doing business as MANILA STANDARD, petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.

MENDOZA, J.:

Petitioner, Social Weather Stations, Inc. (SWS), is a private non-stock, non-profit social research
institution conducting surveys in various fields, including economics, politics, demography, and
social development, and thereafter processing, analyzing, and publicly reporting the results
thereof. On the other hand, petitioner Kamahalan Publishing Corporation publishes the Manila
Standard, a newspaper of general circulation, which features news- worthy items of information
including election surveys. 1âwphi1.nêt

Petitioners brought this action for prohibition to enjoin the Commission on Elections from
enforcing §5.4 of RA. No.9006 (Fair Election Act), which provides:

Surveys affecting national candidates shall not be published fifteen (15) days before an election
and surveys affecting local candidates shall not be published seven (7) days be- fore an election.

The term "election surveys" is defined in §5.1 of the law as follows:

Election surveys refer to the measurement of opinions and perceptions of the voters as regards a
candidate's popularity, qualifications, platforms or a matter of public discussion in relation to the
election, including voters preference for candidates or publicly discussed issues during the
campaign period (hereafter referred to as "Survey").

The implement §5.4, Resolution 3636, §24(h), dated March I, 2001, of the COMELEC enjoins –

Surveys affecting national candidates shall not be published fifteen (15) days before an election
and surveys affecting local candidates shall not be published seven (7) days be- fore an election.

Petitioner SWS states that it wishes to conduct an election survey throughout the period of the
elections both at the national and local levels and release to the media the results of such survey as
well as publish them directly. Petitioner Kamahalan Publishing Corporation, on the other hand,
states that it intends to publish election survey results up to the last day of the elections on May
14,2001.
Petitioners argue that the restriction on the publication of election survey results constitutes a
prior restraint on the exercise of freedom of speech without any clear and present danger to justify
such restraint. They claim that SWS and other pollsters conducted and published the results of
surveys prior to the 1992, 1995, and 1998 elections up to as close as two days before the election
day without causing confusion among the voters and that there is neither empirical nor historical
evidence to support the conclusion that there is an immediate and inevitable danger to tile voting
process posed by election surveys. They point out that no similar restriction is imposed on
politicians from explaining their opinion or on newspapers or broadcast media from writing and
publishing articles concerning political issues up to the day of the election. Consequently, they
contend that there is no reason for ordinary voters to be denied access to the results of election
surveys, which are relatively objective. 1âwphi1.nêt

Respondent Commission on Elections justifies the restrictions in §5.4 of R.A. No. 9006 as
necessary to prevent the manipulation and corruption of the electoral process by unscrupulous and
erroneous surveys just before the election. It contends that (1) the prohibition on the publication
of election survey results during the period proscribed by law bears a rational connection to the
objective of the law, i.e., the prevention of the debasement of the electoral process resulting from
manipulated surveys, bandwagon effect, and absence of reply; (2) it is narrowly tailored to meet
the "evils" sought to be prevented; and (3) the impairment of freedom of expression is minimal,
the restriction being limited both in duration, i.e., the last 15 days before the national election and
the last 7 days before a local election, and in scope as it does not prohibit election survey results
but only require timeliness. Respondent claims that in National Press Club v. COMELEC,1 a total
ban on political advertisements, with candidates being merely allocated broadcast time during the
so-called COMELEC space or COMELEC hour, was upheld by this Court. In contrast, according
to respondent, it states that the prohibition in §5.4 of RA. No. 9006 is much more limited.

For reasons hereunder given, we hold that §5.4 of R.A. No. 9006 constitutes an unconstitutional
abridgment of freedom of speech, expression, and the press.

To be sure, §5.4Iays a prior restraint on freedom of speech, expression, and the press prohibiting
the publication of election survey results affecting candidates within the prescribed periods of
fifteen (15) days immediately preceding a national election seven (7) days before a local election.
Because of tile preferred status of tile constitutional rights of speech, expression, and he press,
such a measure is vitiated by a weighty presumption of invalidity.2 Indeed, any system of prior
restraints of expression comes to this Court bearing a heavy Presumption against its constitutional
validity. ...The Government thus carries a heavy burden of showing justification for in
enforcement of such restraint. "'3 There, thus a reversal of the normal presumption of validity that
inheres in every legislation.

Nor may it be argued that because of Art. IX-C, §4 of the Constitution, which gives the
COMELEC supervisory power to regulate the enjoyment or utilization of franchise for the
operation of media of communication, no presumption of invalidity attaches to a measure like
§5.4. For as we have pointed out in sustaining tile ban on media political advertisements, the grant
of power to the COMELEC under Art. IX-C, §4 is limited to ensuring "equal opportunity, time,
space, and the right to reply" as well as uniform and reasonable rates of charges for the use of
such media facilities "public information campaigns and forums among candidates."4 This Court
stated:

The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no
presumption of invalidity arises in respect of exercises of supervisory or regulatory authority on
the part of the Comelec for the Purpose of securing equal opportunity among candidates for
political office, although such supervision or regulation may result in some limitation of the rights
of free speech and free press.5

MR JUSTICE KAPUNAN dissents. He rejects as inappropriate the test of clear and present
danger for determining the validity of §5.4. Indeed, as has been pointed out in Osmeña v.
COMELEC,6 this test was originally formulated for the criminal law and only later appropriated
for free speech cases. Hence, while it may be useful for determining the validity of laws dealing
with inciting to sedition or incendiary speech, it may not be adequate for such regulations as the
one in question. For such a test is concerned with questions of the gravity and imminence of the
danger as basis for curtailing free speech, which is not the case of §5.4 and similar regulations.

Instead, MR JUSTICE KAPUNAN purports to engage in a form of balancing by "weighing and

balancing the circumstances to determine whether public interest [in free, orderly, honest,
peaceful and credible elections] is served by the regulation of the free enjoyment of the rights"
(page 7). After canvassing the reasons for the prohibition, i.e., to prevent last-minute pressure on
voters, the creation of bandwagon effect to favor candidates, misinformation, the junking" of
weak and "losing" candidates by their parties, and the form of election cheating called "dagdag-
bawas" and invoking the State's power to supervise media of information during the election
period (pages 11-16), the dissenting opinion simply concludes:

Viewed in the light of the legitimate and significant objectives of Section 5.4, It may be seen that
its limiting impact on the rights of free speech and of the press is not unduly repressive or
unreasonable. In Indeed, it is a mere restriction, not an absolute prohibition, on the publication of
election surveys. It is limited in duration; it applies only during the period when the voters are
presumably contemplating whom they should elect and when they are most susceptible to such
unwarranted persuasion. These surveys may be published thereafter. (Pages 17-18)

The dissent does not, however, show why, on balance, these considerations should outweigh the
value of freedom of expression. Instead, reliance is placed on Art. IX-C, §4. As already stated, the
purpose of Art. IX-C, §4 is to "ensure equal opportunity, time, and space and the right of reply,
including reasonable, equal rates therefor for public information campaigns and forums among
candidates. " Hence the validity of the ban on media advertising. It is noteworthy that R.A. No.
9006, § 14 has lifted the ban and now allows candidates to advertise their candidacies in print and
broadcast media. Indeed, to sustain the ban on the publication of survey results would sanction the
censorship of all speaking by candidates in an election on the ground that the usual bombasts and
hyperbolic claims made during the campaigns can confuse voters and thus debase the electoral
process.

In sum, the dissent has engaged only in a balancing at the margin. This form of ad hoc balancing
predictably results in sustaining the challenged legislation and leaves freedom of speech,
expression, and the press with little protection. For anyone who can bring a plausible justification
forward can easily show a rational connection between the statute and a legitimate governmental
purpose. In contrast, the balancing of interest undertaken by then Justice Castro in Gonzales v.
COMELEC,7 from which the dissent in this case takes its cue, was a strong one resulting in his
conclusion that , §50-B of R.A. No. 4880, which limited the period of election campaign and
partisan political activity, was an unconstitutional abridgment of freedom of expression.

Nor can the ban on election surveys be justified on the ground that there are other countries - 78,
according to the Solicitor General, while the dissent cites 28 - which similarly impose restrictions
on the publication of election surveys. At best this survey is inconclusive. It is note worthy that in
the United States no restriction on the publication of election survey results exists. It cannot be
argued that this is because the United States is a mature democracy. Neither are there laws
imposing an embargo on survey results, even for a limited period, in other countries. As pointed
out by petitioners, the United Kingdom, Austria, Belgium, Denmark, Estonia, Finland, Iceland,
Ireland, Latvia, Malta, Macedonia, the Netherlands, Norway, Sweden, and Ukraine, some of
which are no older nor more mature than the Philippines in political development, do not restrict
the publication of election survey results.

What test should then be employed to determine the constitutional validity of §5.4? The United
States Supreme Court, through Chief Justice Warren, held in United States v. O 'Brien:

[A] Government regulation is sufficiently justified [1] if it is within the constitutional power of
the Government; [2] if it furthers an important or substantial governmental interest; [3] if the
governmental interest is unrelated to the suppression of free expression; and [4] if the incidental
restriction on alleged First Amendment freedoms [of speech, expression and press] is no greater
than is essential to the furtherance of that interest.8

This is so far the most influential test for distinguishing content-based from content neutral
regulations and is said to have "become canonical in the review of such laws."9 is noteworthy that
the O 'Brien test has been applied by this Court in at least two cases.10
Under this test, even if a law furthers an important or substantial governmental interest, it should
be invalidated if such governmental interest is "not unrelated to the Expression of free
expression." Moreover, even if the purpose is unrelated to the suppression of free speech, the law
should nevertheless be invalidated if the restriction on freedom of expression is greater than is
necessary to achieve the governmental purpose in question.

Our inquiry should accordingly focus on these two considerations as applied to §5.4.

>First. Sec. 5.4 fails to meet criterion [3] of the O 'Brien test because the causal connection of
expression to the asserted governmental interest makes such interest "not related to the
suppression of free expression." By prohibiting the publication of election survey results because
of the possibility that such publication might undermine the integrity of the election, §5.4 actually
suppresses a whole class of expression, while allowing the expression of opinion concerning the
same subject matter by newspaper columnists, radio and TV commentators, armchair theorists,
and other opinion takers. In effect, §5.4 shows a bias for a particular subject matter, if not
viewpoint, by referring personal opinion to statistical results. The constitutional guarantee of
freedom of expression means that "the government has no power to restrict expression because of
its message, its ideas, its subject matter, or its content."11 The inhibition of speech should be
upheld only if the expression falls within one of the few unprotected categories dealt with in
Chaplinsky v. New Hampshire, 12 thus:

There are certain well-defined and narrowly limited classes of speech, the prevention and
punishment of which have never been thought to raise any Constitutional problem. These include
the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words - those which
by their very utterance inflict injury or tend to incite an immediate breach of the peace. [S]uch
utterances are no essential part of any exposition of ideas, and are of such slight social value as a
step to truth that any benefit that may be derived from them is clearly outweighed by the social
interest in order and morality

Nor is there justification for the prior restraint which §5.4Iays on protected speech. Near v.
Minnesota,13 it was held:

[The] protection even as to previous restraint is not absolutely unlimited. But the limitation has
been recognized only in exceptional cases…. No one would question but that a government might
prevent actual obstruction to its recruiting service or the publication of the sailing dates transports
or the number and location of troops. On similar grounds, the primary requirements of decency
may be enforced against obscene publications. The security of the community life may be
protected against incitements to acts of violence and overthrow by force of orderly government…

Thus, contrary to the claim of the Solicitor General, the prohibition imposed by §5.4 cannot be
justified on the ground that it is only for a limited period and is only incidental. The prohibition
may be for a limited time, but the curtailment of the right of expression is direct, absolute, and
substantial. It constitutes a total suppression of a category of speech and is not made less so
because it is only for a period of fifteen (15) days immediately before a national election and
seven (7) days immediately before a local election. ..

This sufficiently distinguishes §5.4 from R.A. No. 6646, §11(b), which this Court found to be
valid in National Press Club v. COMELEC,14 and Osmeña v. COMELEC.15 For the ban imposed
by R.A. No. 6646, §11(b) is not only authorized by a specific constitutional provision,16 but it
also provided an alternative so that, as this Court pointed out in Osmeña, there was actually no
ban but only a substitution of media advertisements by the COMELEC space and COMELEC
hour.

Second. Even if the governmental interest sought to be promoted is unrelated to the suppression
of speech and the resulting restriction of free expression is only incidental, §5.4 nonetheless fails
to meet criterion [4] of the O 'Brien test, namely, that the restriction be not greater than is
necessary to further the governmental interest. As already stated, §5.4 aims at the prevention of
last-minute pressure on voters, the creation of bandwagon effect, "junking" of weak or "losing"
candidates, and resort to the form of election cheating called "dagdag-bawas." Praiseworthy as
these aims of the regulation might be, they cannot be attained at the sacrifice of the fundamental
right of expression, when such aim can be more narrowly pursued by punishing unlawful acts,
rather than speech because of apprehension that such speech creates the danger of such evils.
Thus, under the Administrative Code of 1987,17 the COMELEC is given the power:

To stop any illegal activity, or confiscate, tear down, and stop any unlawful, libelous, misleading
or false election propaganda, after due notice and hearing.

This is surely a less restrictive means than the prohibition contained in §5.4. Pursuant to this
power of the COMELEC, it can confiscate bogus survey results calculated to mislead voters.
Candidates can have their own surveys conducted. No right of reply can be invoked by others. No
principle of equality is involved. It is a free market to which each candidate brings his ideas. As
for the purpose of the law to prevent bandwagon effects, it is doubtful whether the Government
can deal with this natural-enough tendency of some voters. Some voters want to be identified with
the "winners." Some are susceptible to the herd mentality. Can these be legitimately prohibited by
suppressing the publication of survey results, which are a form of expression? It has been held
that "[mere] legislative preferences or beliefs respecting matters of public convenience may well
support regulation directed at other personal activities, but be insufficient to justify such as
diminishes the exercise of rights so vital to the maintenance of democratic institutions."18

To summarize then, we hold that §5.4 is invalid because (1) it imposes a prior restraint on the
freedom of expression, (2) it is a direct and total suppression of a category of expression even
though such suppression is only for a limited period, and (3) the governmental interest sought to
be promoted can be achieved by means other than suppression of freedom of expression.

On the other hand, the COMELEC contends that under Art. IX-A, §7 of the Constitution, its
decisions, orders, or resolution may be reviewed by this Court only certiorari. The flaws in this
argument is that it assumes that its Resolution 3636, March 1, 2001 is a "decision, order, or
resolution" within the meaning of Art. IX-A, §7. Indeed, counsel for COMELEC maintain that
Resolution 3636 was "rendered" by the Commission. However, the Resolution does not purport to
adjudicate the right of any party. It is not an exercise by the COMELEC of its adjudicatory power
to settle the claims of parties. To the contrary, Resolution 3636 clearly states that it is promulgated
to implement the provisions of R.A. No. 9006. Hence, there is no basis for COMELEC's claim
that this petition for prohibition is inappropriate. Prohibition has been fund appropriate for testing
the constitutionality of various election laws, rules, and regulations.19

WHEREFORE, the petition for prohibited GRANTED and §5.4 of R.A. No. 9006 §24(h) of
COMELEC Resolution 3636, March 1, 2001, are declared unconstitutional. 1âwphi1.nêt

SO ORDERED.
\
PHILIPPINE JOURNALISTS, INC. (PEOPLE’S JOURNAL), ZACARIAS NUGUID, JR. and
CRISTINA LEE, P e t i t i o n e r s,

- versus -

FRANCIS THOENEN,
R e s p o n d e n t.

G.R. No. 143372

Present:

PUNO,
Chairman,
AUSTRIA-MARTINEZ,
CALLEJO, SR.,
TINGA, and
CHICO-NAZARIO, JJ.

Promulgated:

December 13, 2005

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

DECISION

CHICO-NAZARIO, J.:

For almost a century, this Court has sought that elusive equilibrium between the law on
defamation on one hand, and the constitutionally guaranteed freedoms of speech and press on the
other. This case revisits that search.

On 30 September 1990, the following news item appeared in the People’s Journal, a tabloid
of general circulation:

Swiss Shoots Neighbors’ Pets

RESIDENTS of a subdivision in Parañaque have asked the Bureau of Immigration to deport a
Swiss who allegedly shoots wayward neighbors’ pets that he finds in his domain.

The BF Homes residents through lawyer Atty. Efren Angara complained that the deportation of
Francis Thoenen, of 10 Calcutta BF Homes Phase III, could help “prevent the recurrence of such
incident in the future.”

Angara explained that house owners could not control their dogs and cats when they slip out of
their dwellings unnoticed.

An alleged confrontation between Thoenen and the owner of a pet he shot recently threatens to
exacerbate the problem, Angara said.

Cristina Lee[1]

The subject of this article, Francis Thoenen, is a retired engineer permanently residing in
this country with his Filipina wife and their children. Claiming that the report was false and
defamatory, and that the petitioners acted irresponsibly in failing to verify the truth of the same
prior to publication, he filed a civil case for damages against herein petitioners Philippine
Journalists, Inc., Zacarias Nuguid, Jr., its publisher, and reporter Cristina Lee.

Thoenen claimed that the article destroyed the respect and admiration he enjoyed in the
community, and that since it had been published, he and his wife received several queries and
angry calls from friends, neighbors and relatives. For the impairment of his reputation and
standing in the community, and his mental anguish, Thoenen sought P200,000.00 in moral
damages, P100,000.00 in exemplary damages, and P50,000.00 in attorney’s fees.

The petitioners admitted publication of the news item, ostensibly out of a “social and moral
duty to inform the public on matters of general interest, promote the public good and protect the
moral public (sic) of the people,” and that the story was published in good faith and without
malice.[2]

The principal source of the article was a letter[3] by a certain Atty. Efren Angara addressed
to Commissioner Andrea Domingo of the Commission on Immigration and Deportation (CID,
now Bureau of Immigration), which states:

Dear Madame:
We would like to request your office to verify the true status/authenticity of the residency in the
Philippines of a foreign national (a Swiss) by the name of Francis Thoenen who is presently
residing at No. 10 Calcuta cor. Beirut Street, BF Homes (PH. III), Parañaque, Metro Manila. I
received (sic) complaint from my clients residing around his vicinity that this foreigner had (sic)
been causing troubles ever since he showed up. He is too meticulous and had (sic) been shooting
dogs and cats passing his house wall everytime.

Such act which (sic) is unacceptable to the owners especially if inspite (sic) of control their pets
slips (sic) out unnoticed. A confrontation between him and the owner of the dog he shoot, (sic)
already occurred last time. In some instances this guy had been always driving his car
barbarously inside the subdivision with children playing around (sic) the street. Before my clients
petitioned themselves with the endorsement of the Homeowners Association and filed to your
office for deportation we’re respectfully seeking your assistance to investigate this alien to
prevent further incident occurrence (sic) in the future. He should not be allowed to dominate the
citizens of this country.

Very truly yours,

Atty. Efren B. Angara

The petitioners claim that Lee, as the reporter assigned to cover news events in the CID,
acquired a copy of the above letter from a trusted source in the CID’s Intelligence Division. They
claimed to “have reasonable grounds to believe in the truth and veracity of the information
derived (from their) sources.”[4]

It was proven at trial that the news article contained several inaccuracies. The headline,
which categorically stated that the subject of the article engaged in the practice of shooting pets,
was untrue.[5] Moreover, it is immediately apparent from a comparison between the above letter
and the news item in question that while the letter is a mere request for verification of Thoenen’s
status, Lee wrote that residents of BF Homes had “asked the Bureau of Immigration to deport a
Swiss who allegedly shoots neighbors’ pets.” No complaints had in fact been lodged against him
by any of the BF Homeowners,[6] nor had any pending deportation proceedings been initiated
against him in the Bureau of Immigration.[7]

Thoenen also submitted a Certification[8] from the Office of the Bar Confidant that there
was no lawyer in its rolls by the name of Efren Angara, earlier cited by petitioner Lee as the
author of the letter on which she based her article. Finally, the trial also showed that despite the
fact that respondent’s address was indicated in the letter, Cristina Lee made no efforts to contact
either him or the purported letter-writer, Atty. Angara.[9]

The petitioners claim that Lee sought confirmation of the story from the newspaper’s
correspondent in Parañaque, who told her that a woman who refused to identify herself confirmed
that there had indeed been an incident of pet-shooting in the neighborhood involving the
respondent.[10] However, the correspondent in question was never presented in court to verify
the truth of this allegation. Neither was the alleged CID source presented to verify that the above
letter had indeed come from the Department, nor even that the same was a certified true copy of a
letter on file in their office.

On 31 August 1994, the Regional Trial Court, Branch 62, Makati City, rendered a
Decision[11] in favor of the petitioners, which reads in part:

There is no malice on the part of the defendants in publishing the news item done in the exercise
of their profession as journalists reporting to the people on matters of public interest. The news
report was based on an official communication filed with the Bureau of Immigration and
Deportation.

As noted by the Court of Appeals in Marti(r)ez vs. Alanao, CA-G.R No. 27086, September 30,
1991, which is similar to the present case:

While indeed, the news item subject of the present case might have ruffled the sensitivities of
plaintiff, this Court however believes that the alleged defamatory articles falls within the purview
of a qualifiedly privileged matter, and that therefore, it cannot be presumed to be malicious. The
onus of proving malice is accordingly shifted to the plaintiff, that is, that he must prove that the
defendants were actuated by ill-will in what they caused to be printed and published, with a
design to carelessly or wantonly injure the plaintiff. (US vs. Bustos, et al., 37 Phil. 731)

This, plaintiff failed to do, consequently, his case must fall.

The publication in question is a privileged communication protected by the freedom of the press.

WHEREFORE, the Complaint is hereby ordered DISMISSED WITHOUT PRONOUNCEMENT

AS TO COSTS.[12]

On appeal, the court a quo reversed[13] the trial court. It held that although freedom of
expression and the right of speech and of the press are among the most zealously guarded in the
Constitution, still, in the exercise of these rights, Article 19 of the Civil Code requires everyone to
“act with justice, give everyone his due, and observe honesty and good faith.” The appellate court
emphasized that Thoenen was neither a public official nor a public figure, and thus,

. . . [E]ven without malice on the part of defendants-appellees, the news item published in
the 30 September 1990 edition of People’s Journal had been done in violation of the principle of
abuse of right under Article 19 of the Civil Code, in the absence of a bona fide effort to ascertain
the truth thereof, i.e., “to observe honesty and good faith,” which makes their act a wrongful
omission. Neither did they “act with justice and give everyone his due,” because without
ascertaining the veracity of the information given them by the Intelligence Bureau of the Bureau
of Immigration, they published a news article which they were aware would bring the person
specifically named therein, viz, Francis Thoenen, the plaintiff-appellant in this case, into
disrepute.
….

WHEREFORE, the foregoing considered, the Decision appealed from is hereby REVERSED and
SET ASIDE. In its stead, We find for the appellant and award him moral damages of
P200,000.00; exemplary damages of P50,000.00, and legal fees to P30,000.00; all of which shall
be borne jointly and severally by appellees.[14]

Petitioners’ motion for reconsideration having been denied,[15] this petition for certiorari under
Rule 45 of the 1997 Rules of Civil Procedure was filed on the following grounds:

1. The Court of Appeals erred in finding the petitioners Cristina Lee, Nuguid and PJI liable
under Article 19 of the Civil Code.

2. The Court of Appeals erred in finding the petitioners liable for libel even if the article was
based on a letter released by the Bureau of Immigration, hence a qualified privilege
communication.

3. The Court of Appeals erred in concluding that petitioners did not ascertain the truth of the
subject news item.

4. The Court of Appeals erred in awarding damages notwithstanding that the same was
excessive unconscionable and devoid of any basis.

The petitioners argue that this case is one for damages arising from libel, and not one for abuse of
rights under the New Civil Code. They further claim the constitutional protections extended by
the freedom of speech and of the press clause of the 1987 Constitution against liability for libel,
claiming that the article was published in fulfillment of its social and moral duty to inform the
public “on matters of general interest, promote the public good and protect the moral [fabric] of
the people.”[16] They insist that the news article was based on a letter released by the Bureau of
Immigration, and is thus a qualifiedly privileged communication. To recover damages, the
respondent must prove its publication was attended by actual malice - that is, with knowledge that
it was false or with reckless disregard of whether it was false or not.[17]

For the reasons stated below, we hold that the constitutional privilege granted under the freedom
of speech and the press against liability for damages does not extend to the petitioners in this case.

The freedom of speech and of the press is not absolute. The freedom of speech and press and
assembly, first laid down by President McKinley in the Instruction to the Second Philippine
Commission of 07 April 1900, is an almost verbatim restatement of the first amendment of the
Constitution of the United States.[18] Enshrined in Section 4, Article III of the Bill of Rights of
the 1987 Constitution, it states, “No law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people peaceably to assemble and petition the
government for redress of grievances.”

But not all speech is protected. “The right of free speech is not absolute at all times and under all
circumstances. There are certain well-defined and narrowly limited classes of speech, the
prevention and punishment of which has never been thought to raise any Constitutional problem.
These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’
words - those which by their very utterance inflict injury or tend to incite an immediate breach of
the peace. It has been well observed that such utterances are no essential part of any exposition of
ideas, and are of such slight social value as a step to truth that any benefit that may be derived
from them is clearly outweighed by the social interest in order and morality.” [19]

Libel is not protected speech. Article 353 of the Revised Penal Code defines libel as “a public
and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act,
omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt
of a natural or juridical person, or to blacken the memory of one who is dead.”

For an imputation to be libelous, the following requisites must be met: (a) the allegation of a
discreditable act or condition concerning another; (b) publication of the charge; (c) identity of the
person defamed; and (d) existence of malice.[20] In Vasquez v. Court of Appeals,[21] we had
occasion to further explain. Thus:

An allegation is considered defamatory if it ascribes to a person the commission of a crime, the

possession of a vice or defect, real or imaginary, or any act, omission, condition, status or
circumstance which tends to dishonor or discredit or put him in contempt, or which tends to
blacken the memory of one who is dead.

There is publication if the material is communicated to a third person. It is not required that the
person defamed has read or heard about the libelous remark. What is material is that a third
person has read or heard the libelous statement, for “a man’s reputation is the estimate in which
others hold him, not the good opinion which he has of himself.”

On the other hand, to satisfy the element of identifiability, it must be shown that at least a third
person or a stranger was able to identify him as the object of the defamatory statement.

Finally, malice or ill will must be present. Art. 354 of the Revised Penal Code provides:

Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention

and justifiable motive for making it is shown, except in the following cases:

1. A private communication made by any person to another in the performance of any legal,
moral or security duty; and

2. A fair and true report, made in good faith, without any comments or remarks, of any judicial,
legislative or other official proceedings which are not of confidential nature, or of any statement,
report or speech delivered in said proceedings, or of any other act performed by public officers in
the exercise of their functions. (citations omitted, emphasis supplied)

In this case, there is no controversy as to the existence of the three elements. The respondent’s
name and address were clearly indicated in the article ascribing to him the questionable practice
of shooting the wayward pets of his neighbors. The backlash caused by the publication of the
article was in fact such that stones had been thrown at their house, breaking several flower pots,
and daily and nightly calls compelled him to request a change of their telephone number.[22]
These facts are not contested by the petitioners. What the petitioners claim is the absence of proof
of the fourth element - malice.

As a general rule, malice is presumed. Article 354 of the Revised Penal Code states:

ART. 354. Requirement of Publicity. - Every defamatory imputation is presumed to be malicious,

even if it be true, if no good intention and justifiable motive for making it is shown, except in the
following cases:
1. A private communication made by any person to another in the performance of any legal,
moral or social duty; and
2. A fair and true report, made in good faith, without any comments or remarks, of any judicial,
legislative or other official proceedings which are not of confidential nature, or of any statement,
report or speech delivered in said proceedings, or of any other act performed by public officers in
the exercise of their functions.

The article is not a privileged communication. We first discussed the freedom of speech and press
and assembly vis-a-vis the laws on libel and slander in the groundbreaking case of US v. Bustos,
[23] where we applied the prevailing English and American jurisprudence to the effect that:

The interest of society and the maintenance of good government demand a full discussion
of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the
case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in
public life may suffer under a hostile and an unjust accusation; the wound can be assuaged with
the balm of a clear conscience. A public officer must not be too thin-skinned with reference to
comment upon his official acts. Only thus can the intelligence and dignity of the individual be
exalted. Of course, criticism does not authorize defamation. Nevertheless, as the individual is less
than the State, so must expected criticism be born for the common good? Rising superior to any
official, or set of officials, to the Chief Executive, to the Legislature, to the Judiciary - to any or
all the agencies of Government - public opinion should be the constant source of liberty and
democracy. (citations omitted)

The demand to protect public opinion for the welfare of society and the orderly administration of
government inevitably lead to the adoption of the doctrine of privileged communication. “A
privileged communication may be either absolutely privileged or qualifiedly privileged.
Absolutely privileged communications are those which are not actionable even if the author has
acted in bad faith. An example is found in Sec. 11, Art. VI of the 1987 Constitution which
exempts a member of Congress from liability for any speech or debate in the Congress or in any
Committee thereof. Upon the other hand, qualifiedly privileged communications containing
defamatory imputations are not actionable unless found to have been made without good intention
or justifiable motive. To this genre belong ‘private communications’ and ‘fair and true report
without any comments or remarks.’”[24]

The appellate court correctly ruled that the petitioners’ story is not privileged in character, for it is
neither “private communication” nor a fair and true report without any comments or remarks.
US v. Bustos defined the concept of private communication thus: “A communication made bona
fide upon any subject-matter in which the party communicating has an interest, or in reference to
which he has a duty, is privileged, if made to a person having a corresponding interest or duty,
although it contained criminatory matter which without this privilege would be slanderous and
actionable. A pertinent illustration of the application of qualified privilege is a complaint made in
good faith and without malice in regard to the character or conduct of a public official when
addressed to an officer or a board having some interest or duty in the matter.”[25]

This defense is unavailing to petitioners. In Daez v. Court of Appeals[26] we held that:

As a rule, it is the right and duty of a citizen to make a complaint of any misconduct on the part of
public officials, which comes to his notice, to those charged with supervision over them. Such a
communication is qualifiedly privileged and the author is not guilty of libel. The rule on privilege,
however, imposes an additional requirement. Such complaints should be addressed solely to some
official having jurisdiction to inquire into the charges, or power to redress the grievance or has
some duty to perform or interest in connection therewith. (emphasis supplied)

In the instant case, even if we assume that the letter written by the spurious Atty. Angara is
privileged communication, it lost its character as such when the matter was published in the
newspaper and circulated among the general population. A written letter containing libelous
matter cannot be classified as privileged when it is published and circulated in public,[27] which
was what the petitioners did in this case.

Neither is the news item a fair and true report without any comments or remarks of any judicial,
legislative or other official proceedings; there is in fact no proceeding to speak of. Nor is the
article related to any act performed by public officers in the exercise of their functions, for it
concerns only false imputations against Thoenen, a private individual seeking a quiet life.

The petitioners also claim to have made the report out of a “social and moral duty to inform the
public on matters of general interest.”

In Borjal v. Court of Appeals, we stated that “the enumeration under Art. 354 is not an exclusive
list of qualifiedly privileged communications since fair commentaries on matters of public interest
are likewise privileged. We stated that the doctrine of fair commentaries means “that while in
general every discreditable imputation publicly made is deemed false, because every man is
presumed innocent until his guilt is judicially proved, and every false imputation is deemed
malicious, nevertheless, when the discreditable imputation is directed against a public person in
his public capacity, it is not necessarily actionable. In order that such discreditable imputation to
a public official may be actionable, it must either be a false allegation of fact or a comment based
on a false supposition.”[28]
Again, this argument is unavailing to the petitioners. As we said, the respondent is a private
individual, and not a public official or public figure. We are persuaded by the reasoning of the
United States Supreme Court in Gertz v. Robert Welch, Inc.,[29] that a newspaper or broadcaster
publishing defamatory falsehoods about an individual who is neither a public official nor a public
figure may not claim a constitutional privilege against liability, for injury inflicted, even if the
falsehood arose in a discussion of public interest.[30]

Having established that the article cannot be considered as privileged communication, malice is
therefore presumed, and the fourth requisite for the imputation of libel to attach to the petitioners
in this case is met. The news article is therefore defamatory and is not within the realm of
protected speech. There is no longer a need to discuss the other assignment of errors, save for the
amount of damages to which respondent is entitled.

In Policarpio v. Manila Times Publishing Co., Inc.,[31] we awarded damages where the
defendants deliberately presented a private individual in a worse light that what she actually was,
and where other factual errors were not prevented although defendants had the means to ascertain
the veracity of their report. Such are the facts obtaining here.

We must point out that Lee’s brief news item contained falsehoods on two levels. On its face, her
statement that residents of BF Homes had “asked the Bureau of Immigration to deport a Swiss
who allegedly shoots neighbors’ pets” is patently untrue since the letter of the spurious Atty.
Angara was a mere request for verification of Thoenen’s status as a foreign resident. Lee’s article,
moreover, is also untrue, in that the events she reported never happened. The respondent had
never shot any of his neighbors’ pets, no complaints had been lodged against him by his
neighbors, and no deportation proceedings had been initiated against him. Worse, the author of
Lee’s main source of information, Atty. Efren Angara, apparently either does not exist, or is not a
lawyer. Petitioner Lee would have been enlightened on substantially all these matters had she but
tried to contact either Angara or Thoenen.

Although it has been stressed that a newspaper “should not be held to account to a point of
suppression for honest mistakes, or imperfection in the choice of words,”[32] even the most
liberal view of free speech has never countenanced the publication of falsehoods, especially the
persistent and unmitigated dissemination of patent lies.[33] “There is no constitutional value in
false statements of fact. Neither the intentional lie nor the careless error materially advances
society’s interest in ‘uninhibited, robust, and wide-open’ debate.”[34] The use of the known lie as
a tool is at once at odds with the premises of democratic government and with the orderly manner
in which economic, social, or political change is to be effected. Calculated falsehood falls into
that class of utterances which “are no essential part of any exposition of ideas, and are of such
slight social value as a step to truth that any benefit that may be derived from them is clearly
outweighed by the social interest in order and morality… The knowingly false statement and the
false statement made with reckless disregard of the truth, do not enjoy constitutional protection”
(citations omitted).[35]

The legitimate state interest underlying the law of libel is the compensation of the individuals for
the harm inflicted upon them by defamatory falsehood. After all, the individual’s right to
protection of his own good name “reflects no more than our basic concept of the essential dignity
and worth of every human being – a concept at the root of any decent system of ordered
liberty.”[36]

The appellate court awarded Thoenen moral damages of P200,000.00, exemplary damages of
P50,000.00 and legal fees of P30,000.00, to be borne jointly and severally by the herein
petitioners. In Guevarra v. Almario,[37] we noted that the damages in a libel case must depend
upon the facts of the particular case and the sound discretion of the court, although appellate
courts were “more likely to reduce damages for libel than to increase them.”[38] So it is in this
case.

WHEREFORE, the Decision of the Court of Appeals of 17 January 2000 reversing the Decision
of the Regional Trial Court, Branch 62, Makati City, of 31 August 1994 is hereby AFFIRMED,
subject to the modification that petitioners are ordered to pay, jointly and severally, moral
damages in the sum of P100,000.00, exemplary damages of P30,000.00, and legal fees of
P20,000.00. No costs.

SO ORDERED
G.R. No. 107566 November 25, 2004

BAGUIO MIDLAND COURIER, REPRESENTED BY ITS PRESIDENT AND GENERAL

MANAGER, OSEO HAMADA AND CECILLE AFABLE, EDITOR-IN-CHIEF, petitioners,
vs.
THE COURT OF APPEALS (FORMER SP, 6TH DIVISION) AND RAMON LABO, JR.,
respondents.

DECISION

CHICO-NAZARIO, J.:

This is a petition for review on certiorari seeking to set aside the Decision1 of the Court of
Appeals, dated 07 January 1992, and the Resolution,2 dated 29 September 1992, reversing the
decision of the Regional Trial Court (RTC), dated 14 June 1990, which dismissed herein private
respondent's claim for damages.

Culled from the records are the following facts:

During the time material to this case, petitioner Oseo C. Hamada (Hamada) was the president and
general manager of the Baguio Printing and Publishing Co., Inc., which publishes the Baguio
Midland Courier, a weekly newspaper published and circulated in Baguio City and other
provinces within the Cordillera region. He was also, at that time, the business manager of said
newsweekly. Petitioner Cecille Afable (Afable) was Baguio Midland Courier's editor-in-chief and
one of its columnists who ran the column "In and Out of Baguio."

On the other hand, private respondent Ramon L. Labo, Jr., was among the mayoralty candidates
in Baguio City for the 18 January 1988 local elections.3 Prior to this, in 1984, private respondent
had already embarked on a political career by running for a seat in the former Batasang Pambansa
during which time he appointed a certain Benedicto Carantes (Carantes) as his campaign manager.
It appears that as part of the campaign propaganda for private respondent in the 1984 local
elections, political ads appeared in the various issues of Baguio Midland Courier and campaign
paraphernalia were printed by Baguio Printing and Publishing Co., Inc., on his behalf.

Apart from his political endeavors, private respondent was also an active member of the civic
group Lions Club having been elected governor of said organization in 1984, 1986, and 1988.

Before the 18 January 1988 local elections, petitioner Afable wrote in her column a series of
articles dealing with the candidates for the various elective positions in Baguio City. Quoted
hereunder are excerpts from said articles, as well as the respective dates when they were
published in the Baguio Midland Courier –

January 3, 1988

. . . Of all the candidates for mayor, Labo has the most imponderables about him, people would
ask, "Can he read and write?" Why is he always talking about his Japanese father-in-law? Is he
really a Japanese Senator or a barrio kapitan? Is it true that he will send P18 million aid to
Baguio? Somebody wanted to put an advertisement of Labo in the Midland Courier but was
refused because he has not yet paid his account of the last time he was a candidate for Congress.
We will accept all advertisements for him if he pays his old accounts first.4

January 10, 1988

I heard that the "Dumpty in the egg" is campaigning for Cortes. Not fair. Some real doctors are
also busy campaigning against Labo, because he has not also paid their medical services with
them. Since he is donating millions he should settle his small debts like the reportedly
insignificant amount of P27,000 only. If he wins several teachers were signifying to resign and
leave Baguio forever, and Pangasinan will be the franca-liqua of Baguio.5

Claiming that the aforequoted portions of petitioner Afable's column were tainted with malice,
private respondent instituted separate criminal and civil actions for libel against herein petitioners.
In a resolution, dated 26 December 1988, the Department of Justice dismissed the criminal case
due to insufficiency of evidence6 while the civil suit was raffled off to RTC, Branch 6, Baguio
City.

In the complaint for damages, private respondent alleged that in her 03 January 1988 and 10
January 1988 columns, petitioner Afable made it appear that he (private respondent) could not
comply with his financial obligations; that Yuko Narukawa Labo (Narukawa Labo), his co-
plaintiff in the case before the trial court, was accused of misrepresenting her social status to the
general public thereby subjecting her to public ridicule; that the subject articles were written
solely for the purpose of destroying his reputation, integrity, and personality as well as that of Ms.
Narukawa Labo; and that said articles were false, untrue, libelous, and published with evil intent.
Private respondent and Ms. Narukawa Labo, therefore, prayed for moral damages, exemplary
damages, litigation expenses, attorney's fees, and costs of litigation.

Prior to filing their respective answers, petitioners filed separate motions to dismiss7 upon the
ground that there was failure to comply with Section 6 of Presidential Decree (P.D.) No. 1508,8
otherwise known as the Katarungang Pambarangay Law, which required the referral of certain
disputes to the barangay conciliation process before they are filed in court. Petitioner Hamada
also claimed that the complaint stated no cause of action.
On 05 April 1988, private respondent and Ms. Narukawa Labo filed a motion with leave of court
to amend and admit attached amended complaint.9 Impleaded in the amended complaint10 was
the Baguio Printing and Publishing Co., Inc., as the publisher of the Baguio Midland Courier.

In its Order, dated 12 April 1988,11 the trial court denied petitioners' motions to dismiss.
According to the trial court, as one of the parties to this case was a corporation, P.D. No. 1508
was not applicable as said statute pertained only to actions involving natural persons. In the same
order, the trial court granted private respondent and Ms. Narukawa Labo's motion to admit their
amended complaint and directed the petitioners to file their answers.

In their answer,12 petitioners Baguio Midland Courier and Hamada denied that petitioner Afable's
03 and 10 January 1988 articles were libelous. They also claimed that per their company's
records, private respondent still owed them a certain sum of money for the political ads and
campaign paraphernalia printed by Baguio Printing and Publishing Co., Inc., during private
respondent's 1984 campaign, and that the 03 January 1988 column did not accuse Ms. Narukawa
Labo of misrepresenting herself before the public. Moreover, they asserted that petitioner Afable's
write-ups were fair comments on facts and reports that were of public interest as private
respondent was a mayoralty candidate at that time. Finally, petitioners Baguio Midland Courier
and Hamada interposed counterclaims for moral damages, exemplary damages, attorney's fees,
and costs.

In her answer,13 petitioner Afable also denied that the quoted portions of her 03 and 10 January
1988 column were libelous, insisting that they were devoid of malice and "at most contained valid
and timely doubts."14 She also contended that the contents of her column were protected by the
constitutional guarantees of freedom of speech and of the press and that the same were privileged
as they dealt with a public figure. Petitioner Afable likewise sought counterclaims for moral
damages, exemplary damages, and attorney's fees.

During the pre-trial of the case on 31 March 1989, the parties agreed to limit the issues to the
following: (1) whether the published items were libelous, false and malicious; (2) whether
plaintiffs below were entitled to damages; and (3) whether petitioners (defendants therein) were
entitled to damages as claimed in their respective counterclaims.

On 17 July 1989, private respondent's counsel manifested before the trial court that Ms.
Narukawa Labo would no longer testify in support of the allegations in the amended complaint as
far as they pertain to her.15 In addition, the 03 January 1988 article was no longer offered in
evidence by the private respondent's counsel thus, the trial court interpreted this development to
mean that the same ceased to be a part of this suit. The court a quo thereafter proceeded with the
trial of the case taking into consideration only the 10 January 1988 column.
In the trial that ensued, private respondent testified that he felt that the phrase "dumpty in the egg"
referred to him, interpreting the same to mean someone who is a failure in his business
undertakings.16 Private respondent asserted that such allegation was baseless as he was
successful in his various endeavors abroad. With regard to the remainder of the article, private
respondent insisted that petitioner Afable made it appear to the public that he owed P27,000 in
unpaid medical expenses while in truth, he could not remember having been hospitalized.17

Subsequently, private respondent presented Dr. Pedro Rovillos, his fellow Lions Club member,
who testified that he understood the term "dumpty in the egg" to mean "a zero or a big lie."18 He
further testified that the 10 January 1988 article painted private respondent as a "balasubas"19 due
to the latter's alleged failure to pay his medical expenses.

On the other hand, the petitioners presented Ms. Sylvia Lambino (Lambino), Baguio Printing and
Publishing Co., Inc.'s, bookkeeper and accountant, as their first witness. According to Lambino,
Baguio Printing and Publishing Co., Inc., sent several statements of accounts and demand letters
to private respondent pertaining to his unpaid obligations amounting to P27,415 which he
incurred during his campaign for the Batasang Pambansa in 1984.20 She further testified that
despite the repeated demands to private respondent, the aforementioned obligations remained
unpaid.21

Thereafter, petitioner Hamada himself took the witness stand. In his testimony, petitioner Hamada
stated that as the president and general manager of the Baguio Printing and Publishing Co., Inc.,
and as the business manager of the Baguio Midland Courier, he only dealt with the business and
advertising aspects of their newspaper business and that the contents of the articles appearing in
the pages of the Baguio Midland Courier were overseen by the rest of the staff.22 In addition,
petitioner Hamada also corroborated the earlier testimony of Lambino with respect to the
outstanding obligations of private respondent.

On 20 December 1989, Carantes took the witness stand for the petitioners. Carantes testified that
he was appointed as private respondent's campaign manager when the latter ran for assemblyman
in Batasang Pambansa in 1984 and that in his capacity as campaign manager,23 he hired the
services of a certain Noli Balatero to oversee the printing of campaign paraphernalia and
publication of political advertisements of private respondent.24 Carantes further testified that the
P27,415 indebtedness to Baguio Printing and Publishing Co., Inc., had remained unpaid because
the campaign funds private respondent entrusted to him were already fully exhausted. Besides,
according to Carantes, the campaign materials printed by the Baguio Printing and Publishing Co.,
Inc., and political advertisements published in Baguio Midland Courier were no longer covered
by the agreement he had with Balatero. However, these materials were printed and published
upon the instructions of one Atty. Conrado Bueno who acted as private respondent's "unofficial
campaign manager" during the said election. Carantes thus concluded that private respondent was
supposed to pay for these campaign materials and advertisements before or after the 1984
election.

For her part, petitioner Afable acknowledged having written the 10 January 1988 article but
denied that the same was malicious and intended to destroy private respondent's reputation and
integrity; that the phrase "dumpty in the egg" referred to Horato Aquino who was among the
candidates for the 1988 local elections in Baguio City; and that the P27,000 pertained to private
respondent's unpaid obligation to Baguio Printing and Publishing Co., Inc., the exact amount of
which was P27,415.

In its decision, dated 14 June 1990, the trial court dismissed the complaint for lack of merit.
According to the trial court, the article in question was privileged and constituted fair comment on
matters of public interest as it dealt with the integrity, reputation, and honesty of private
respondent who was a candidate for local elective office at that time.

This decision of the trial court was, however, reversed by the appellate court in a decision, dated
07 January 1992, the dispositive portion of which reads:

Construed in the light of the facts and the principles on the matter, and under the plain language of
the applicable law, We hold that the evidence was sufficient to prove by preponderance of
evidence that the defendants were GUILTY of committing libel on the person of the complainant
Ramon Labo, Jr. and should be liable to pay damages. The decision of the trial court is hereby
REVERSED and SET ASIDE and the defendants are hereby ordered to pay the plaintiffs as
follows:

1) The amount of P200,000.00 as moral damages;

2) The amount of P100,000.00 as exemplary damages;

3) The amount of P50,000.00 for attorney's fees plus costs of litigation.25

In brushing aside the conclusion reached by the trial court, the Court of Appeals noted that private
respondent was, at the time the article in question was published, not a public official but a private
citizen seeking an elective office and petitioner Afable's article was intended to impeach his
honesty, virtue or reputation and to make him appear in the eyes of the public as unfit for public
office.

The appellate court also declared that the malicious nature of the article may be deduced from the
fact that it was published in the Baguio Midland Courier a few days before the scheduled local
elections and from the style and tone of writing employed by petitioner Afable. According to the
Court of Appeals, while the entire article was composed of ten paragraphs and referred to several
unnamed personalities, it was only in the disputed paragraph where a specific individual was
named – herein private respondent. The appellate court therefore concluded that the phrase
"dumpty in the egg" could only refer to private respondent and the claimed P27,000 indebtedness
is imputable solely to him.

Petitioners thereafter filed their respective motions for reconsideration26 of the aforementioned
decision of the Court of Appeals but these were denied through a resolution27 of the appellate
court, dated 29 September 1992. Thus, petitioners now come before us raising the following
issues:

THE RESPONDENT COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT "THERE

IS GOOD REASON AND REASONABLE GROUND TO ASSUME THAT THE
PUBLICATION OF THE LIBELOUS ARTICLES WAS A MANIFESTATION OF THE
SPOUSES' (DEFENDANTS OSEO HAMADA and CECILLE AFABLE) THINKING ON THE
MERIT OR DEMERIT OF CANDIDATES FOR BAGUIO CITY MAYOR FOR THE
JANUARY 18, 1988 ELECTIONS" SINCE THEY ARE NOT SPOUSES NOR RELATED TO
ONE ANOTHER.

II

THE RESPONDENT COURT OF APPEALS GRAVELY ERRED IN CONCLUDING THAT

PLAINTIFF-APPELLANT RAMON LABO, JR. WAS THE ONE REFERRED TO AS THE
"DUMPTY IN THE EGG."

III

THE RESPONDENT COURT OF APPEALS GRAVELY ERRED IN CONCLUDING THAT

THE PORTION OF THE SUBJECT ARTICLE WHICH STATES THAT "SINCE HE IS
DONATING MILLIONS HE SHOULD SETTLE HIS SMALL DEBTS LIKE THE
REPORTEDLY INSIGNIFICANT AMOUNT OF P27,000.00" REFERS TO AN
INDEBTEDNESS OF LABO TO THE REAL DOCTORS AND NOT TO THE BAGUIO
MIDLAND COURIER.

IV

THE RESPONDENT COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT THERE

WAS MALICE WHEN THE DEFENDANT-APPELL(ANT) CECILLE AFABLE INVITED
PUBLIC ATTENTION ON LABO'S PRIVATE LIFE BEING A CANDIDATE FOR THE
HIGHEST PUBLIC OFFICE IN THE CITY OF BAGUIO OR THAT THE DEFENDANTS
"WERE ACTUALLY NOT MOTIVATED BY GOOD AND JUSTIFIABLE ENDS" IN
PUBLISHING SAID ARTICLES ABOUT THE PRIVATE RESPONDENT.

THE RESPONDENT COURT OF APPEALS GRAVELY ERRED IN REVERSING THE

DECISION OF THE TRIAL COURT DISMISSING THE COMPLAINT FOR LACK OF
MERIT.28

In a manifestation dated 10 November 1993, we were informed of the death of petitioner Hamada.
In our resolution of 08 December 1993, we resolved to substitute the estate of Oseo C. Hamada,
for the deceased petitioner Hamada.29

The Court's Ruling

We shall first address the contention of petitioners with regard to alleged errors of facts
committed by the Court of Appeals. While we adhere to the principle that findings of fact of the
appellate court are binding and conclusive upon us,30 such adherence has not prevented this
Court from setting aside the findings of fact of the Court of Appeals when circumstances so
warrant. In the recent case of The Insular Life Assurance Company, Ltd. v. Court of Appeals and
Sun Brothers & Company,31 this Court had the occasion to enumerate the exceptions to the
general rule as regards the conclusiveness of the findings of fact of the appellate court, to wit: "(1)
when the findings are grounded entirely on speculation, surmises or conjectures; (2) when the
inference made is manifestly mistaken, absurd or impossible; (3) when there is grave abuse of
discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings
of facts are conflicting; (6) when in making its findings the Court of Appeals went beyond the
issues of the case, or its findings are contrary to the admissions of both the appellant and the
appellee; (7) when the findings are contrary to the trial court; (8) when the findings are
conclusions without citation of specific evidence on which they are based; (9) when the facts set
forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the
respondent; (10) when the findings of facts are premised on the supposed absence of evidence and
contradicted by the evidence on record; and (11) when the Court of Appeals manifestly
overlooked certain relevant facts not disputed by the parties, which, if properly considered, would
justify a different conclusion."32

In the case at bar, except for numbers (1), (6), (9), and (10), all of the above exceptions are
present.

First. Contrary to the findings of the Court of Appeals that private respondent was the only
candidate named in petitioner Afable's column on 10 January 1988, said article actually dealt with
the other named candidates for the 1988 local elections in Baguio City and Benguet. A perusal of
said article would likewise reveal that it contained not only the opinion of petitioner Afable
regarding private respondent but also her take on the other issues involving the other candidates.
It would be grave error to impute malice on the subject article based upon a finding that private
respondent was unduly singled out by petitioner Afable in her column. In this regard, we dismiss
the following conclusion of the appellate court:

. . . Malice may also be inferred from the style and tone of the publication. The entire column on
"In and Out of Baguio" on January 10 was composed of ten paragraphs and each paragraph
featured or referred to a single person without knowing the person; however, in the second
paragraph which mentions the non-payment of P27,000.00, the complainant [private respondent
herein] was specifically mentioned in name; hence, no amount of reasoning would erase the fact
that the dumpty in the egg was referring to Labo.33 (Emphasis supplied)

Second. From the abovequoted portion of the Court of Appeals' ruling, it is daylight clear that the
appellate court assumed that since the name of private respondent and the phrase "dumpty in the
egg" appeared in the same paragraph, the epithet referred only to the former. We cannot, however,
subscribe to such simplistic deduction. A perusal of the paragraph in question easily reveals that
the person alluded to by petitioner Afable in her use of "dumpty in the egg" was someone who
was campaigning for a certain Atty. Reynaldo Cortes - one of the mayoralty candidates in Baguio
City at that time. If, indeed, "dumpty in the egg" referred to private respondent, it follows that he
campaigned for his own opponent during the 1988 local elections. Although such gracious
attitude on the part of private respondent towards his political opponent would have been
commendable, nevertheless, the same is totally contrary to human experience. On this score, we
uphold the following argument of petitioners:

Clearly, the private respondent was hallucinating when he claims himself as the person referred to
as the "Dumpty in the egg." Otherwise, he would be the one making a mockery out of himself for
campaigning against himself and in favor of his political opponent. Had he done that, it is
doubtful whether he could have won as City Mayor of Baguio in the 1988 elections, which he
actually did.34

Third. In its assailed decision, the Court of Appeals likewise highlighted the fact that petitioners
Hamada and Afable were husband and wife and went on to conclude, albeit erroneously, that
"(t)here is good reason and reasonable ground to assume that the publication of the libelous article
was a manifestation of the spouses' thinking on the merit or demerit of candidates for Baguio City
mayor for the 18 January 1988 elections."35 Again, we disagree in this conclusion of the appellate
court. The records of this case clearly establish the fact that petitioners Hamada and Afable were
siblings and not spouses in that during his testimony on 19 December 1989, petitioner Hamada
referred to petitioner Afable as his sister.36 The Court of Appeals' supposition, therefore, that the
article subject of this petition reflected the stance of the "husband and wife team" of the
petitioners utterly lacks factual support.
Having addressed the factual issues of this case, we shall now proceed to discuss its substantive
question of whether the 10 January 1988 article of petitioner Afable was defamatory.

It is a basic precept that in cases involving claims for damages arising out of alleged defamatory
articles, it is essential that the alleged victim be identifiable although it is not necessary that he be
named.37 It is enough if by intrinsic reference the allusion is apparent or if the publication
contains matters of descriptions or reference to facts and circumstances from which others reading
the article may know the plaintiff was intended, or if extraneous circumstances point to him such
that persons knowing him could and did understand that he was the person referred to.38

In the case of Borjal v. Court of Appeals,39 this Court declared that "[i]t is also not sufficient that
the offended party recognized himself as the person attacked or defamed, but it must be shown
that at least a third person could identify him as the object of the libelous publication."40 Plainly,
private respondent has the bounden duty to present before the court evidence that a third person
could easily identify him as the person libeled. In this case, private respondent has utterly failed to
dispose of this responsibility.

To be sure, private respondent's lone witness, Dr. Rovillos, was able to offer his own
understanding of what the phrase "dumpty in the egg" meant.41 However, during his cross-
examination, he failed to sufficiently explain before the court a quo how he arrived at the
conclusion that the term referred to private respondent, thus:

Q Now, you said you read this first sentence that says: "I heard that the Dumpty in the egg is
campaigning for Cortes." Then you gave us what you thought was the meaning of "Dumpty in the
egg." You did not tell us, however, whether you thought that was Ramon Labo or somebody else.
Could you tell us, Doctor, when you heard that, you understood that to be Ramon Labo?

A That is what I understand.

Q You understood that to be Ramon Labo because a dumpty in the egg means a big zero. Why?
You consider Labo a big zero that is why you understood him to be referred to when Cecille C.
Afable said "dumpty in the egg?"

A That is what I understand.

Q You also said a "dumpty in the egg" is a big lie. You consider Ramon Labo a big lie that you
also thought he was referred to as "dumpty in the egg?"

A No, sir.
Q In fact, Ramon Labo, in your assessment, is the exact opposite of a dumpty [in] the egg?

A That I cannot answer.

A So, from your honest perception, some – this this Labo (sic) is a big zero or a big lie that is why
you cannot say he is the exact opposite?

A Maybe.42

This Court finds Dr. Rovillos's proposition as to what "dumpty in the egg" meant is insufficient to
support any finding of liability on the part of the petitioners as he was unable to offer an iota of
justification for his conclusion that it pertained to private respondent.

The Court of Appeals also maintained that petitioners could not invoke "public interest" in their
defense. It ruled that "[a]n abuse of the freedom of speech and the press should not be tolerated
and encouraged if the article published transcends the limit of decent, fair and impartial news
reporting and instead becomes a bludgeon or a scalpel to brow beat or slice into shreds a private
citizen, of his rights to his good name."43

We do not agree.

Concededly, private respondent was not yet a public official at the time the 10 January 1988
article was published. Nevertheless, this fact does not remove said article from the mantle of
protection guaranteed by the freedom of expression provision of the Constitution. Indeed, as early
as 1909, in the case of United States v. Sedano,44 this Court had recognized the public's right to
be informed on the mental, moral, and physical fitness of candidates for public office.

Subsequently, in the leading case of New York Times Co. vs. Sullivan,45 the US Supreme Court
expounded on this principle, viz:

. . . It is of the utmost consequence that the people should discuss the character and qualifications
of candidates for their suffrages. The importance to the state and to society of such discussions is
so vast, and the advantages derived are so great, that they more than counterbalance the
inconvenience of private persons whose conduct may be involved, and occasional injury to the
reputations of individuals must yield to the public welfare, although at times such injury may be
great. The public benefit from publicity is so great, and the chance of injury to private character
so small, that such discussion must be privileged.

...
In such a case the occasion gives rise to a privilege, qualified to this extent: any one claiming to
be defamed by the communication must show actual malice or go remediless. The privilege
extends to a great variety of subjects, and includes matters of public concern, public men, and
candidates for office.46

Plainly, the rule only applies to fair comment on matters of public interest, fair comment being
that which is true, or which if false, expresses the real opinion of the author based upon
reasonable degree of care and on reasonable grounds.47 The principle, therefore, does not grant
an absolute license to authors or writers to destroy the persons of candidates for public office by
exposing the latter to public contempt or ridicule by providing the general public with
publications tainted with express or actual malice. In the latter case, the remedy of the person
allegedly libeled is to show proof that an article was written with the author's knowledge that it
was false or with reckless disregard of whether it was false or not. While the law itself creates the
presumption that every defamatory imputation is malicious,48 nevertheless, the privileged
character of a communication destroys said presumption. The burden of proving actual malice
shall then rest on the plaintiff, private respondent herein.49

In the present case, private respondent was unable to prove that petitioner Afable's column was
tainted with actual malice. Verily, the records are replete with evidence that, indeed, private
respondent incurred an obligation which had remained unpaid until the time the questioned article
was published. While counsel for private respondent persistently harped at the difference between
the P27,000 which appeared in petitioner Afable's column and the P27,415 actual indebtedness of
private respondent to Baguio Printing and Publishing Co., Inc., the minuscule difference in the
amount fails to establish reckless disregard for truth on the part of petitioners. As held by this
Court in the Borjal case –

Even assuming that the contents of the articles are false, mere error, inaccuracy or even falsity
alone does not prove actual malice. Errors or misstatements are inevitable in any scheme of truly
free expression and debate. Consistent with good faith and reasonable care, the press should not
be held to account, to a point of suppression, for honest mistakes or imperfections in the choice of
language. There must be some room for misstatement of fact as well as for misjudgment. Only by
giving them much leeway and tolerance can they courageously and effectively function as critical
agencies in our democracy.50

Lastly, we hold that petitioner Afable's article constitutes a fair comment on a matter of public
interest as it dealt with the character of private respondent who was running for the top elective
post in Baguio City at the time. Considering that private respondent assured his would-be
constituents that he would be donating millions of his own money, petitioner Afable's column
with respect to private respondent's indebtedness provided the public with information as regards
his financial status which, in all probability, was still unbeknownst to them at that time. Indeed,
the information might have dissuaded some members of the electorate from voting in favor of
private respondent but such is the inevitable result of the application of the law. The effect would
have been adverse to the private respondent but public interest in this case far outweighs the
interest of private respondent.

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals, dated 07
January 1992, and its Resolution, dated 29 September 1992, denying reconsideration are
REVERSED and SET ASIDE, and the trial court's Decision of 14 June 1990 is AFFIRMED. No
costs.

SO ORDERED.
[AM No. 90-4-1545-0 : April 17, 1990]

COLUMN OF MR. RAMON TULFO IN THE PHILIPPINE DAILY INQUIRER ISSUES OF 13

AND 16 OCTOBER 1989

Gentlemen:
Quoted hereunder, for your information, is a resolution of the Court En Banc dated April 17, 1990
AM No. 90-4-1545-0 (Column of Mr. Ramon Tulfo in the Philippine Daily Inquirer issues of 13
and 16 October 1989)

On 13 October 1989, respondent Ramon Tulfo (Tulfo, for short) wrote an article entitled "Idiotic
Decision" in his column "On Target" in the Philippine Daily Inquirer, stating therein that the
Supreme Court rendered an "idiotic decision" in legalizing the checkpoints. This was followed by
another article in the same column on 16 October 1989, entitled "Sangkatutak na Bobo," Tulfo
referring therein to the members of the Supreme Court as "stupid" for having rendered such
decision on checkpoints, and calling them "sangkatutak na bobo justices of the Philippine
Supreme Court."

In a resolution dated 19 October 1989, the Court required Tulfo to show cause in writing why he
should not be punished for contempt of court, for making such derogatory statements in his
column against the Supreme Court and its members.

Without denying the writing and publication of the questioned articles, Tulfo raised the following
defenses in his "Explanation:" (1) that he was just reacting emotionally to said decision of the
Court because he had been a victim of harassment, abuse and oppression by checkpoints; (2) that
the use of the adjective "idiotic" was meant and intended in the sense of the decision being
"illogical, irrational, unwarranted and unwise;" (3) that the words "stupid justices" and
"sangkatutak na bobo" in the 16 October 1989 article are not his own words but that he was
merely quoting the words of some lawyers in reaction to the decision, without any intention on his
part to degrade, ridicule, insult and bring disrepute to the Court; (4) that the case having been
decided and terminated, the comments made in said articles as to the soundness of the Court's
decision do not constitute contempt of court; (5) that said articles did not pose any clear and
present danger or serious and imminent threat to the administration of justice.

Citing press freedom, a Motion for Intervention was filed by the National Press Club, Union of
Journalists of the Philippines, Press Photographers of the Philippines, and the People's Movement
for Press Freedom, in connection with the resolution of the Court requiring Tulfo to explain why
he should not be held in contempt of court. Movants alleged that such resolution is an
unwarranted assault and undue restriction on freedom of speech and press. Said motion was
considered by the Court in its deliberations leading to this resolution.
We find Tulfo's "explanation" to be fatally devoid of merit.

At the outset, it should be stated that, contrary to Tulfo's pretense, the Court's decision on the
issue of checkpoints had not become final at the time he wrote the questioned articles. In fact, the
Court has yet to act on the motion for reconsideration of said decision, filed by the petitioner
therein, to which the Solicitor General, appearing for the respondents, has filed an opposition.
Consequently, at the time Tulfo wrote and published the questioned articles, the case had not been
closed and terminated but was sub judice.

The power to punish for contempt is inherent in all courts, as it is essential to their right of self-
preservation.[1] Courts are universally acknowledged to be vested, by their very creation, with
power to impose silence, respect, and decorum in their presence and submission to their lawful
mandates, and as corollary to this proposition, to preserve themselves and their officers from the
approach of insults and pollution.[2] Any improper conduct which tends, directly or indirectly, to
impede, obstruct, or degrade the administration of justice is punishable for indirect contempt.[3]

Contempt of court is a defiance of the authority, justice or dignity of the court; it is such conduct
as tends to bring the authority and administration of the law into disrespect or to interfere with or
prejudice parties or their witnesses during litigation. Contempt of court is defined as disobedience
to the court by setting up an opposition to its authority, justice and dignity. It signifies not only a
willful disregard or disobedience of the court's orders but is such conduct as tends to bring the
authority of the court and the administration of law into disrepute or in some manner to impede
the due administration of justice.[4] It may be committed both by lawyers and non-lawyers, in and
out of court.[5]

There are two (2) types of publication of newspaper comments on proceedings in court, which
have been considered in contempt proceedings, namely: (1) those in which the object of the
publication is to affect the decision in a pending case or action, and (2) those which have for their
purpose the bringing of courts or judges or other court officers into discredit.[6] Tulfo's articles
comprise both types of publication. As already pointed out, at the time his articles were written
and published, the case on the checkpoints was sub judice as the Court's decision therein had not
became final. As to why and how said articles have for their purpose to bring the Supreme Court
and its members into discredit, will be shown presently.

It has been settled that mere criticism or comment on the correctness; or wrongness, soundness or
unsoundness of a decision of the court in a pending case, made in good faith, may be tolerated, for
if it is well founded, it may enlighten the court and contribute to the correction of an error, if any
has been committed.[7]

The Court, needless to state, as a human institution, does not assume a posture of infallibility or
perfection in its decisions or rulings. In fact, its decisions are open to criticisms for as long as they
are couched in respectful language and, above all directed at the merits of the case. Where,
however, comment in the guise of a critique is intended merely to degrade and ridicule the Court,
as well as to insult its members, thereby causing or conditioning the public to lose its respect for
the Court and its members, the comment becomes clearly an obstruction or affront to the
administration of justice; hence, it is contemptous. To cast doubt before the public eye as to the
integrity of the judicial institution by malicious imputations of disrepute and incompetence to the
Supreme Court and its members, does not fall under the category of fair criticism. The right to
criticize is not absolute or unlimited. Above all, it must be bona fide and should not spill over the
walls of decency and propriety. Any intemperate and unfair criticism is a gross violation of one's
duty of respect to the courts.[8]

Coming to Tulfo's specific language employed in the questioned articles, a man in his right senses
would find no social; value, or intellectual significance or even literary delight in its use. In fact,
nothing constructive can be attained by an attempt to downgrade, damage and even destroy the
authority of the Court which is a focal institution of democracy in this country. Most prudent
observers believe (whether or not Tulfo subscribes to it) that any act which tends to destroy the
authority of the Court is in itself an attempt to destroy that democracy -

xxxxxxxxx

"What is at stake in cases of this kind is the integrity of the judicial institutions of the country in
general and of the Supreme Court in particular. Damage to such institutions might not be
quantifiable at a given moment in time but damage there will surely be if acts like those of
respondent Gonzales are not effectively stopped and countered. The level of trust and confidence
of the general public in the courts, including the court of last resort, is not easily measured; but
few will dispute that a high level of such trust and confidence is critical for the stability of
democratic goverment.[9]

xxxxxxxxx

It is thus imperative that the Court should preserve its authority, dignity and the respect due it
from litigants, lawyers and the public, for the reason that -

"The Supreme Court of the Philippines is, under the Constitution, the last bulwark to which the
Filipino people may repair to obtain relief for their grievances or protection of their rights when
these are trampled upon, and if the people lose their confidence in the honesty and integrity of the
members of this court and believe that they can not expect justice there-from, they might be
driven to take the law into their own hands, and disorder and perhaps chaos would result."[10]

If this Court were to allow insults hurled against it and its members to go unpunished, then it
becomes remiss in its own duty to maintain its authority, integrity, and dignity.
Tulfo's claim that he was "emotional" when he wrote the questioned articles can in no way serve
as an excuse for insulting and demeaning the highest court of the land and its members. In fact, it
has been held that not even good faith is a ground for exoneration in a contempt charge.[11]

Being of age and presumably gifted with reason, Tulfo must have been fully aware of the
seriousness of his undertaking to insult the Court and its members. For such conduct, he must
assume responsibility for its consequences, without hiding behind the cloak of "emotionalism" or
the convenient anonymity of his alleged "reaction" sources. A writer worth his guts should know
that a pre-condition to credibility is honesty, not cowardice.

The Court does not deny Tulfo's right to be emotional about certain issues; however, as a
responsible member of the press, he should first rationalize and tackle issues with objectivity. The
fact that the issue of checkpoints had become a "highly emotional issue" for him is not a logical
reason to insult the Court and its members, for, if Tulfo strongly felt that the Court had erred in its
decision, he was free to criticize the decision on its merits. But to maliciously demean the Court
and the intelligence of its members achieved really nothing in pointing out the errors, if any, in the
decision objected to.

Reading through the two (2) articles written by Tulfo, respectively entitled "Idiotic decision" and
"Sangkatutak na Bobo", it is plain that Tulfo intended to ridicule and degrade the Court and its
members before the public, not merely to criticize its decision on the merits, as he would now like
to make this Court believe. The general tone and language used in Tulfo's articles belie his belated
allegation that the word "idiotic" was used in the sense of the decision being merely "illogical,
irrational, unwarranted and unwise."

Reprehensible language may take various forms and in all cases its general tone should be
considered. Whether or not the meaning and intent of a certain article constitute contempt is to be
determined by the Court as a matter of law upon a fair consideration of the language used.
Disclaimer by the author of intentional disrespect to the Court, just like disclaimer by a publisher
of any knowledge of the article prior to its publication is not a defense.[12]

As Tulfo well knows, in ordinary parlance, "idiotic" is defined as "devoid of intellect, utterly
stupid, sense-less or foolish";[13] while legally, it is defined as "a person who has been without
understanding from his nativity, and whom the law, therefore, presumes never likely to attain
an"[14] or "the lowest level of feeblemindedness in which an individual is possessed of a
maximum mental age of two years or an IQ of 25"[15] while the word "stupid" is defined as
"wanting in or slow of mental perception; lacking ordinary activity of mind; slow-witted;
dull."[16]
Had Tulfo honestly meant to express only to the public his personal opinion that the questioned
decision is "illogical, irrational, unwarranted and unwise," then, he could have said so without
resort to the use of words which are derogatory, and thereafter claim that he did not mean the way
they were written or understood by his readers. Such turnabout only shows how grossly
irresponsible, or in bad faith or mentally dishonest Tulfo was in writing said articles and causing
the same to be published.

In fine, the intent clearly manifested by Tulfo in the questioned articles is to give an image of a
Supreme Court composed of members who are ignorant or devoid of intelligence, thus, incapable
of carrying out the proper dispensation of justice which they are tasked to perform under the
Constitution. And, while it has been said that those who have great proficiency at hurling insults
at others usually fit such insults so well, the Court will not pass this judgment on Tulfo but will
simply hold him as having insulted, without any rational justification, the institution of the
Supreme Court and its members.

Likewise, there is no merit in Tulfo's defense that he was merely quoting the reactions of some
lawyers to the decision when he referred to the Supreme Court justices as "sangkatutak na bobo".
While it is true that in his opening statement in the 16 October 1989 article, Tulfo stated that
many lawyers he had talked to describe the present complement of justices as "sangkatutak na
bobo", yet, his parting shot and personal statement at the end of the article, which says "(T)o the
sangkatutak na bobo justices of the Philip-pine Supreme Court, please take note!", runs counter to
his very claim that such assessment of the Court and its members was not his personal opinion.
Thus, he is not only an inventive expert; he is totally in bad faith. At the very least, he cannot be
exculpated from full and sole responsibility for the publication of such derogatory statement.

Moreover, in a later (6 November 1989) article, Tulfo declared that he was not sorry at all that he
wrote the way he did in his two (2) questioned articles, and he claimed that he was "merely
expressing his honest opinion." He stood firm with his original indictment of the Court and its
members as "sangkatutak na bobo" and "stupid justices", and never truly apologized for making
such statements. It is thus clear that all that he claimed to be sorry for was that he cannot take
back what he had said in his earlier articles, and that he was sorry for those who have been
allegedly affected by the ruling on checkpoints, like the motorists, consumers and end-users.

Freedom of speech and expression, like all constitutional freedoms, is not absolute, and freedom
of expression has, on appropriate occasions, to be adjusted and accommodated to the
requirements of equally important public interests. One of these fundamental public interests is
the maintenance of the authority, integrity and orderly functioning of the courts. For, the
protection and maintenance of freedom of expression itself can be secured only within the
framework of a functioning and orderly system of justice.[17] Freedom of expression is not
license to insult the Court and its members and to impair the authority, integrity and dignity of the
Court.
The inherent power of courts to punish any publication calculated to interfere with the
administration of justice is not restricted by the constitutional guarantee of freedom of the press,
for freedom of the press is subordinate to the authority, integrity and independence of the
judiciary and the proper administration of justice. Freedom of the press must not be confounded
with license or abuse of that freedom. Writers and publishers of newspapers have the right, but no
greater than the right of others, to bring to public notice the conduct and acts of courts, provided
the publications are true and fair in spirit; in short, there is no law to restrain or punish the freest
expression of disapprobation of what is done in or by the courts,[18] provided that free expression
is not used as a vehicle to satisfy one's irrational obsession to demean, ridicule, degrade and even
destroy the courts and their members. Consequently, Tulfo's as well as intervenors' claim to press
freedom, is not well taken in this instance.

ACCORDINGLY, the Court finds and adjudges respondent Ramon Tulfo in CONTEMPT OF
COURT, and he is hereby GRAVELY CENSURED, with the STRONGEST WARNING that a
repetition of the same or similar misconduct will be dealt with MORE SEVERELY.
In re Atty. Emil Jurado

Facts:

Emiliano P. Jurado, a lawyer and journalist who writes in a newspaper of general circulation
wrote about alleged improprieties and irregularities in the judiciary over several months. What
was particularly given attention by the Supreme Court his column entitled, "Who will judge the
Justices?" referring to a report that six justices, their spouses, children and grandchildren (a total
of 36 persons) spent a vacation in Hong Kong, and that luxurious hotel accommodations and all
their other expenses were paid by a public utility firm and that the trip was arranged by the travel
agency patronized by this public utility firm. This column was made amidst rumors that a
Supreme Court decision favorable to the public utility firm appears to have been authored by a
lawyer of the public utility firm. The Chief Justice issued an administrative order creating an ad
hoc committee to investigate the said reports of corruption in the judiciary. A letter affidavit was
also received from the public utility, denying the allegations in Jurado's column. The Supreme
Court then issued a resolution ordering that the matter dealt with in the letter and affidavit of the
public utility company be docketed and acted upon as an official Court proceeding for the
determination of whether or not the allegations made by Jurado are true.

Held:

Jurado's actuations, in the context in which they were done, demonstrate gross irresponsibility,
and indifference to factual accuracy and the injury that he might cause to the name and reputation
of those of whom he wrote. They constitute contempt of court, directly tending as they do to
degrade or abase the administration of justice and the judges engaged in that function. The Court
declares Atty. Jurado guilty of contempt of court and sentences him to pay a fine of one thousand
pesos (P1,000.00)

Free press not to be preferred to an independent judiciary. The court underscores the importance
of both the constitutional guarantee of free speech and the reality that there are equally important
public interests which need on occasion to be balanced against and accommodated with one and
the other. One such public interest is in the maintenance of the integrity and orderly functioning of
the administration of justice. There is no antinomy between free expression and the integrity of
the system of administering justice. For the protection and maintenance of freedom of expression
itself can be secured only within the context of a functioning and orderly system of dispensing
justice, within the context, in other words, of viable independent institutions for delivery of justice
which are accepted by the general community. As Mr. Justice Frankfurter put it: ". . . A free press
is not to be preferred to an independent judiciary, nor an independent judiciary to a free press.
Neither has primacy over the other; both are indispensable to a free society." Mr. Justice Malcolm
of this Court expressed the same thought in the following terms: 'The Organic Act wisely
guarantees freedom of speech and press. This constitutional right must be protected in its fullest
extent. But license or abuse of liberty of the press and of the citizens should not be confused with
liberty in its true sense. As important as the maintenance of an unmuzzled press and the free
exercise of the rights of the citizens is the maintenance of the independence of the Judiciary.
Respect for the Judiciary cannot be had if persons are privileged to scorn a resolution of the court
adopted for good purposes, and if such persons are to be permitted by subterranean means to
diffuse inaccurate accounts of confidential proceedings to the embarrassment of the parties and
the court.' (In Re Severino Lozano and Anastacio Quevedo, 54 Phil. 801 at 807 [1930])."

Excercise of freedom of speech not to be abused.

The Civil Code, in its Article 19 lays down the norm for the proper exercise of any right,
constitutional or otherwise, viz.: "ARTICLE 19. Every person must, in the exercise of his rights
and in the performance of his duties, act with justice, give everyone his due, and observe honesty
and good faith." The provision is reflective of the universally accepted precept of "abuse of
rights," "one of the most dominant principles which must be deemed always implied in any
system of law."

Requirement to exercise bona fide care in ascertaining the truth of the statements when publishing
statements which are clearly defamatory to identifiable judges or other public officials.
Judges, by becoming such, are rightly regarded as voluntarily subjecting themselves to norms of
conduct which embody more stringent standards of honesty, integrity, and competence than are
commonly required from private persons. Nevertheless, persons who seek or accept appointment
to the Judiciary cannot reasonably be regarded as having forfeited any right to private honor and
reputation. For to so rule will be to discourage all save those who feel no need to maintain their
self-respect from becoming judges. The public interest involved in freedom of speech and the
individual interest of judges (and for that matter, all other public officials) in the maintenance of
private honor and reputation need to be accommodated one to the other. And the point of
adjustment or accommodation between these two legitimate interests is precisely found in the
norm which requires those who, invoking freedom of speech, publish statements which are clearly
defamatory to identifiable judges or other public officials to exercise bona fide care in
ascertaining the truth of the statements they publish. The norm does not require that a journalist
guarantee the truth of what he says or publishes. But the norm does prohibit the reckless disregard
of private reputation by publishing or circulating defamatory statements without any bona fide
effort to ascertain the truth thereof.
G.R. No. 167798 April 19, 2006

KILUSANG MAYO UNO, NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG

MAYO UNO (NAFLU-KMU), JOSELITO V. USTAREZ, EMILIA P. DAPULANG,
SALVADOR T. CARRANZA, MARTIN T. CUSTODIO, JR. and ROQUE M. TAN, Petitioners,
vs.
THE DIRECTOR-GENERAL, NATIONAL ECONOMIC DEVELOPMENT AUTHORITY, and
THE SECRETARY, DEPARTMENT OF BUDGET and MANAGEMENT, Respondents.

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

G.R. No. 167930 April 19, 2006

BAYAN MUNA Representatives SATUR C. OCAMPO, TEODORO A. CASIÑO, and JOEL G.

VIRADOR, GABRIELA WOMEN’S PARTY Representative LIZA L. MAZA, ANAKPAWIS
Representatives RAFAEL V. MARIANO and CRISPIN B. BELTRAN, Rep. FRANCIS G.
ESCUDERO, Rep. EDUARDO C. ZIALCITA, Rep. LORENZO R. TAÑADA III, DR. CAROL
PAGADUAN-ARAULLO and RENATO M. REYES, JR. of BAYAN, MARIE HILAO-
ENRIQUEZ of KARAPATAN, ANTONIO L. TINIO of ACT, FERDINAND GAITE of
COURAGE, GIOVANNI A. TAPANG of AGHAM, WILFREDO MARBELLA GARCIA, of
KMP, LANA LINABAN of GABRIELA, AMADO GAT INCIONG, RENATO CONSTANTINO,
JR., DEAN PACIFICO H. AGABIN, SHARON R. DUREMDES of the NATIONAL COUNCIL
OF CHURCHES IN THE PHILIPPINES, and BRO. EDMUNDO L. FERNANDEZ (FSC) of the
ASSOCIATION OF MAJOR RELIGIOUS SUPERIORS OF THE PHILIPPINES (AMRSP),
Petitioners,
vs.
EDUARDO ERMITA, in his capacity as Executive Secretary, ROMULO NERI, in his capacity as
Director-General of the NATIONAL ECONOMIC and DEVELOPMENT AUTHORITY (NEDA)
and the Administrator of the NATIONAL STATISTICS OFFICE (NSO), Respondents.

DECISION

CARPIO, J.:

This case involves two consolidated petitions for certiorari, prohibition, and mandamus under
Rule 65 of the Rules of Court, seeking the nullification of Executive Order No. 420 (EO 420) on
the ground that it is unconstitutional.

EO 420, issued by President Gloria Macapagal-Arroyo on 13 April 2005, reads:

REQUIRING ALL GOVERNMENT AGENCIES AND GOVERNMENT-OWNED AND
CONTROLLED CORPORATIONS TO STREAMLINE AND HARMONIZE THEIR
IDENTIFICATION (ID) SYSTEMS, AND AUTHORIZING FOR SUCH PURPOSE THE
DIRECTOR-GENERAL, NATIONAL ECONOMIC AND DEVELOPMENT AUTHORITY TO
IMPLEMENT THE SAME, AND FOR OTHER PURPOSES

WHEREAS, good governance is a major thrust of this Administration;

WHEREAS, the existing multiple identification systems in government have created unnecessary
and costly redundancies and higher costs to government, while making it inconvenient for
individuals to be holding several identification cards;

WHEREAS, there is urgent need to streamline and integrate the processes and issuance of
identification cards in government to reduce costs and to provide greater convenience for those
transacting business with government;

WHEREAS, a unified identification system will facilitate private businesses, enhance the
integrity and reliability of government-issued identification cards in private transactions, and
prevent violations of laws involving false names and identities.

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the

Philippines by virtue of the powers vested in me by law, do hereby direct the following:

Section 1. Adoption of a unified multi-purpose identification (ID) system for

government.1avvphil.net – All government agencies, including government-owned and controlled
corporations, are hereby directed to adopt a unified multi-purpose ID system to ensure the
attainment of the following objectives:

a. To reduce costs and thereby lessen the financial burden on both the government and the public
brought about by the use of multiple ID cards and the maintenance of redundant database
containing the same or related information;

b. To ensure greater convenience for those transacting business with the government and those
availing of government services;

c. To facilitate private businesses and promote the wider use of the unified ID card as provided
under this executive order;

d. To enhance the integrity and reliability of government-issued ID cards; and

e. To facilitate access to and delivery of quality and effective government service.

Section 2. Coverage – All government agencies and government-owned and controlled
corporations issuing ID cards to their members or constituents shall be covered by this executive
order.

Section 3. Data requirement for the unified ID system – The data to be collected and recorded by
the participating agencies shall be limited to the following:

Name

Home Address

Sex

Picture

Signature

Date of Birth

Place of Birth

Marital Status

Names of Parents

Height

Weight

Two index fingers and two thumbmarks

Any prominent distinguishing features like moles and others

Tax Identification Number (TIN)

Provided that a corresponding ID number issued by the participating agency and a common
reference number shall form part of the stored ID data and, together with at least the first five
items listed above, including the print of the right thumbmark, or any of the fingerprints as
collected and stored, shall appear on the face or back of the ID card for visual verification
purposes.
Section 4. Authorizing the Director-General, National Economic and Development Authority, to
Harmonize All Government Identification Systems. – The Director-General, National Economic
Development Authority, is hereby authorized to streamline and harmonize all government ID
systems.

Section 5. Functions and responsibilities of the Director-General, National Economic and

Development Authority. – In addition to his organic functions and responsibilities, the Director-
General, National Economic and Development Authority, shall have the following functions and
responsibilities:

a. Adopt within sixty (60) days from the effectivity of this executive order a unified government
ID system containing only such data and features, as indicated in Section 3 above, to validly
establish the identity of the card holder:

b. Enter into agreements with local governments, through their respective leagues of governors or
mayors, the Commission on Elections (COMELEC), and with other branches or instrumentalities
of the government, for the purpose of ensuring government-wide adoption of and support to this
effort to streamline the ID systems in government;

b. Call on any other government agency or institution, or create sub–committees or technical

working groups, to provide such assistance as may be necessary or required for the effective
performance of its functions; and

d. Promulgate such rules or regulations as may be necessary in pursuance of the objectives of this
executive order.

Section 6. Safeguards. – The Director-General, National Economic and Development Authority,

and the pertinent agencies shall adopt such safeguard as may be necessary and adequate to ensure
that the right to privacy of an individual takes precedence over efficient public service delivery.
Such safeguards shall, as a minimum, include the following:

a. The data to be recorded and stored, which shall be used only for purposes of establishing the
identity of a person, shall be limited to those specified in Section 3 of this executive order;

b. In no case shall the collection or compilation of other data in violation of a person’s right to
privacy shall be allowed or tolerated under this order;

c. Stringent systems of access control to data in the identification system shall be instituted;
d. Data collected and stored for this purpose shall be kept and treated as strictly confidential and a
personal or written authorization of the Owner shall be required for access and disclosure of data;

e. The identification card to be issued shall be protected by advanced security features and
cryptographic technology; and

f. A written request by the Owner of the identification card shall be required for any correction or
revision of relevant data, or under such conditions as the participating agency issuing the
identification card shall prescribe.

Section 7. Funding. – Such funds as may be recommended by the Department of Budget and
Management shall be provided to carry out the objectives of this executive order.

Section 8. Repealing clause. – All executive orders or issuances, or portions thereof, which are
inconsistent with this executive order, are hereby revoked, amended or modified accordingly.

Section 9. Effectivity. – This executive order shall take effect fifteen (15) days after its publication
in two (2) newspapers of general circulation.

DONE in the City of Manila, this 13th day of April, in the year of Our Lord, Two Thousand and
Five.

Thus, under EO 420, the President directs all government agencies and government-owned and
controlled corporations to adopt a uniform data collection and format for their existing
identification (ID) systems.

Petitioners in G.R. No. 167798 allege that EO 420 is unconstitutional because it constitutes
usurpation of legislative functions by the executive branch of the government. Furthermore, they
allege that EO 420 infringes on the citizen’s right to privacy.1

Petitioners in G.R. No. 167930 allege that EO 420 is void based on the following grounds:

1. EO 420 is contrary to law. It completely disregards and violates the decision of this Honorable
Court in Ople v. Torres et al., G.R. No. 127685, July 23, 1998. It also violates RA 8282 otherwise
known as the Social Security Act of 1997.

2. The Executive has usurped the legislative power of Congress as she has no power to issue EO
420. Furthermore, the implementation of the EO will use public funds not appropriated by
Congress for that purpose.

3. EO 420 violates the constitutional provisions on the right to privacy

(i) It allows access to personal confidential data without the owner’s consent.

(ii) EO 420 is vague and without adequate safeguards or penalties for any violation of its
provisions.

(iii) There are no compelling reasons that will legitimize the necessity of EO 420.

4. Granting without conceding that the President may issue EO 420, the Executive Order was
issued without public hearing.

5. EO 420 violates the Constitutional provision on equal protection of laws and results in the
discriminatory treatment of and penalizes those without ID.2

Issues

Essentially, the petitions raise two issues. First, petitioners claim that EO 420 is a usurpation of
legislative power by the President. Second, petitioners claim that EO 420 infringes on the
citizen’s right to privacy.

Respondents question the legal standing of petitioners and the ripeness of the petitions. Even
assuming that petitioners are bereft of legal standing, the Court considers the issues raised under
the circumstances of paramount public concern or of transcendental significance to the people.
The petitions also present a justiciable controversy ripe for judicial determination because all
government entities currently issuing identification cards are mandated to implement EO 420,
which petitioners claim is patently unconstitutional. Hence, the Court takes cognizance of the
petitions.

The Court’s Ruling

The petitions are without merit.

On the Alleged Usurpation of Legislative Power

Section 2 of EO 420 provides, "Coverage. – All government agencies and government-owned and
controlled corporations issuing ID cards to their members or constituents shall be covered by this
executive order." EO 420 applies only to government entities that issue ID cards as part of their
functions under existing laws. These government entities have already been issuing ID cards even
prior to EO 420. Examples of these government entities are the GSIS,3 SSS,4 Philhealth,5
Mayor’s Office,6 LTO,7 PRC,8 and similar government entities.
Section 1 of EO 420 directs these government entities to "adopt a unified multi-purpose ID
system." Thus, all government entities that issue IDs as part of their functions under existing laws
are required to adopt a uniform data collection and format for their IDs. Section 1 of EO 420
enumerates the purposes of the uniform data collection and format, namely:

a. To reduce costs and thereby lessen the financial burden on both the government and the public
brought about by the use of multiple ID cards and the maintenance of redundant database
containing the same or related information;

b. To ensure greater convenience for those transacting business with the government and those
availing of government services;

c. To facilitate private businesses and promote the wider use of the unified ID card as provided
under this executive order;

d. To enhance the integrity and reliability of government-issued ID cards; and

e. To facilitate access to and delivery of quality and effective government service.

In short, the purposes of the uniform ID data collection and ID format are to reduce costs, achieve
efficiency and reliability, insure compatibility, and provide convenience to the people served by
government entities.

Section 3 of EO 420 limits the data to be collected and recorded under the uniform ID system to
only 14 specific items, namely: (1) Name; (2) Home Address; (3) Sex; (4) Picture; (5) Signature;
(6) Date of Birth; (7) Place of Birth; (8) Marital Status; (9) Name of Parents; (10) Height; (11)
Weight; (12) Two index fingers and two thumbmarks; (13) Any prominent distinguishing features
like moles or others; and (14) Tax Identification Number.

These limited and specific data are the usual data required for personal identification by
government entities, and even by the private sector. Any one who applies for or renews a driver’s
license provides to the LTO all these 14 specific data.

At present, government entities like LTO require considerably more data from applicants for
identification purposes. EO 420 will reduce the data required to be collected and recorded in the
ID databases of the government entities. Government entities cannot collect or record data, for
identification purposes, other than the 14 specific data.

Various laws allow several government entities to collect and record data for their ID systems,
either expressly or impliedly by the nature of the functions of these government entities. Under
their existing ID systems, some government entities collect and record more data than what EO
420 allows. At present, the data collected and recorded by government entities are disparate, and
the IDs they issue are dissimilar.

In the case of the Supreme Court,9 the IDs that the Court issues to all its employees, including the
Justices, contain 15 specific data, namely: (1) Name; (2) Picture; (3) Position; (4) Office Code
Number; (5) ID Number; (6) Height; (7) Weight; (8) Complexion; (9) Color of Hair; (10) Blood
Type; (11) Right Thumbmark; (12) Tax Identification Number; (13) GSIS Policy Number; (14)
Name and Address of Person to be Notified in Case of Emergency; and (15) Signature. If we
consider that the picture in the ID can generally also show the sex of the employee, the Court’s ID
actually contains 16 data.

In contrast, the uniform ID format under Section 3 of EO 420 requires only "the first five items
listed" in Section 3, plus the fingerprint, agency number and the common reference number, or
only eight specific data. Thus, at present, the Supreme Court’s ID contains far more data than the
proposed uniform ID for government entities under EO 420. The nature of the data contained in
the Supreme Court ID is also far more financially sensitive, specifically the Tax Identification
Number.

Making the data collection and recording of government entities unified, and making their ID
formats uniform, will admittedly achieve substantial benefits. These benefits are savings in terms
of procurement of equipment and supplies, compatibility in systems as to hardware and software,
ease of verification and thus increased reliability of data, and the user-friendliness of a single ID
format for all government entities.

There is no dispute that government entities can individually limit the collection and recording of
their data to the 14 specific items in Section 3 of EO 420. There is also no dispute that these
government entities can individually adopt the ID format as specified in Section 3 of EO 420.
Such an act is certainly within the authority of the heads or governing boards of the government
entities that are already authorized under existing laws to issue IDs.

A unified ID system for all these government entities can be achieved in either of two ways. First,
the heads of these existing government entities can enter into a memorandum of agreement
making their systems uniform. If the government entities can individually adopt a format for their
own ID pursuant to their regular functions under existing laws, they can also adopt by mutual
agreement a uniform ID format, especially if the uniform format will result in substantial savings,
greater efficiency, and optimum compatibility. This is purely an administrative matter, and does
not involve the exercise of legislative power.

Second, the President may by executive or administrative order direct the government entities
under the Executive department to adopt a uniform ID data collection and format. Section 17,
Article VII of the 1987 Constitution provides that the "President shall have control of all
executive departments, bureaus and offices." The same Section also mandates the President to
"ensure that the laws be faithfully executed."

Certainly, under this constitutional power of control the President can direct all government
entities, in the exercise of their functions under existing laws, to adopt a uniform ID data
collection and ID format to achieve savings, efficiency, reliability, compatibility, and convenience
to the public. The President’s constitutional power of control is self-executing and does not need
any implementing legislation.

Of course, the President’s power of control is limited to the Executive branch of government and
does not extend to the Judiciary or to the independent constitutional commissions. Thus, EO 420
does not apply to the Judiciary, or to the COMELEC which under existing laws is also authorized
to issue voter’s ID cards.10 This only shows that EO 420 does not establish a national ID system
because legislation is needed to establish a single ID system that is compulsory for all branches of
government.

The Constitution also mandates the President to ensure that the laws are faithfully executed. There
are several laws mandating government entities to reduce costs, increase efficiency, and in
general, improve public services.11 The adoption of a uniform ID data collection and format
under EO 420 is designed to reduce costs, increase efficiency, and in general, improve public
services. Thus, in issuing EO 420, the President is simply performing the constitutional duty to
ensure that the laws are faithfully executed.

Clearly, EO 420 is well within the constitutional power of the President to promulgate. The
President has not usurped legislative power in issuing EO 420. EO 420 is an exercise of Executive
power – the President’s constitutional power of control over the Executive department. EO 420 is
also compliance by the President of the constitutional duty to ensure that the laws are faithfully
executed.

Legislative power is the authority to make laws and to alter or repeal them. In issuing EO 420, the
President did not make, alter or repeal any law but merely implemented and executed existing
laws. EO 420 reduces costs, as well as insures efficiency, reliability, compatibility and user-
friendliness in the implementation of current ID systems of government entities under existing
laws. Thus, EO 420 is simply an executive issuance and not an act of legislation.

The act of issuing ID cards and collecting the necessary personal data for imprinting on the ID
card does not require legislation. Private employers routinely issue ID cards to their employees.
Private and public schools also routinely issue ID cards to their students. Even private clubs and
associations issue ID cards to their members. The purpose of all these ID cards is simply to insure
the proper identification of a person as an employee, student, or member of a club. These ID
cards, although imposed as a condition for exercising a privilege, are voluntary because a person
is not compelled to be an employee, student or member of a club.

What require legislation are three aspects of a government maintained ID card system. First, when
the implementation of an ID card system requires a special appropriation because there is no
existing appropriation for such purpose. Second, when the ID card system is compulsory on all
branches of government, including the independent constitutional commissions, as well as
compulsory on all citizens whether they have a use for the ID card or not. Third, when the ID card
system requires the collection and recording of personal data beyond what is routinely or usually
required for such purpose, such that the citizen’s right to privacy is infringed.

In the present case, EO 420 does not require any special appropriation because the existing ID
card systems of government entities covered by EO 420 have the proper appropriation or funding.
EO 420 is not compulsory on all branches of government and is not compulsory on all citizens.
EO 420 requires a very narrow and focused collection and recording of personal data while
safeguarding the confidentiality of such data. In fact, the data collected and recorded under EO
420 are far less than the data collected and recorded under the ID systems existing prior to EO
420.

EO 420 does not establish a national ID card system. EO 420 does not compel all citizens to have
an ID card. EO 420 applies only to government entities that under existing laws are already
collecting data and issuing ID cards as part of their governmental functions. Every government
entity that presently issues an ID card will still issue its own ID card under its own name. The
only difference is that the ID card will contain only the five data specified in Section 3 of EO 420,
plus the fingerprint, the agency ID number, and the common reference number which is needed
for cross-verification to ensure integrity and reliability of identification.

This Court should not interfere how government entities under the Executive department should
undertake cost savings, achieve efficiency in operations, insure compatibility of equipment and
systems, and provide user-friendly service to the public. The collection of ID data and issuance of
ID cards are day-to-day functions of many government entities under existing laws. Even the
Supreme Court has its own ID system for employees of the Court and all first and second level
courts. The Court is even trying to unify its ID system with those of the appellate courts, namely
the Court of Appeals, Sandiganbayan and Court of Tax Appeals.

There is nothing legislative about unifying existing ID systems of all courts within the Judiciary.
The same is true for government entities under the Executive department. If government entities
under the Executive department decide to unify their existing ID data collection and ID card
issuance systems to achieve savings, efficiency, compatibility and convenience, such act does not
involve the exercise of any legislative power. Thus, the issuance of EO 420 does not constitute
usurpation of legislative power.
On the Alleged Infringement of the Right to Privacy

All these years, the GSIS, SSS, LTO, Philhealth and other government entities have been issuing
ID cards in the performance of their governmental functions. There have been no complaints from
citizens that the ID cards of these government entities violate their right to privacy. There have
also been no complaints of abuse by these government entities in the collection and recording of
personal identification data.

In fact, petitioners in the present cases do not claim that the ID systems of government entities
prior to EO 420 violate their right to privacy. Since petitioners do not make such claim, they even
have less basis to complain against the unified ID system under EO 420. The data collected and
stored for the unified ID system under EO 420 will be limited to only 14 specific data, and the ID
card itself will show only eight specific data. The data collection, recording and ID card system
under EO 420 will even require less data collected, stored and revealed than under the disparate
systems prior to EO 420.

Prior to EO 420, government entities had a free hand in determining the kind, nature and extent of
data to be collected and stored for their ID systems. Under EO 420, government entities can
collect and record only the 14 specific data mentioned in Section 3 of EO 420. In addition,
government entities can show in their ID cards only eight of these specific data, seven less data
than what the Supreme Court’s ID shows.

Also, prior to EO 420, there was no executive issuance to government entities prescribing
safeguards on the collection, recording, and disclosure of personal identification data to protect
the right to privacy. Now, under Section 5 of EO 420, the following safeguards are instituted:

a. The data to be recorded and stored, which shall be used only for purposes of establishing the
identity of a person, shall be limited to those specified in Section 3 of this executive order;

b. In no case shall the collection or compilation of other data in violation of a person’s right to
privacy be allowed or tolerated under this order;

c. Stringent systems of access control to data in the identification system shall be instituted;

d. Data collected and stored for this purpose shall be kept and treated as strictly confidential and a
personal or written authorization of the Owner shall be required for access and disclosure of data;

e. The identification card to be issued shall be protected by advanced security features and
cryptographic technology;
f. A written request by the Owner of the identification card shall be required for any correction or
revision of relevant data, or under such conditions as the participating agency issuing the
identification card shall prescribe.

On its face, EO 420 shows no constitutional infirmity because it even narrowly limits the data that
can be collected, recorded and shown compared to the existing ID systems of government entities.
EO 420 further provides strict safeguards to protect the confidentiality of the data collected, in
contrast to the prior ID systems which are bereft of strict administrative safeguards.

The right to privacy does not bar the adoption of reasonable ID systems by government entities.
Some one hundred countries have compulsory national ID systems, including democracies such
as Spain, France, Germany, Belgium, Greece, Luxembourg, and Portugal. Other countries which
do not have national ID systems, like the United States, Canada, Australia, New Zealand, Ireland,
the Nordic Countries and Sweden, have sectoral cards for health, social or other public
services.12 Even with EO 420, the Philippines will still fall under the countries that do not have
compulsory national ID systems but allow only sectoral cards for social security, health services,
and other specific purposes.

Without a reliable ID system, government entities like GSIS, SSS, Philhealth, and LTO cannot
perform effectively and efficiently their mandated functions under existing laws. Without a
reliable ID system, GSIS, SSS, Philhealth and similar government entities stand to suffer
substantial losses arising from false names and identities. The integrity of the LTO’s licensing
system will suffer in the absence of a reliable ID system.

The dissenting opinion cites three American decisions on the right to privacy, namely, Griswold v.
Connecticut,13 U.S. Justice Department v. Reporters Committee for Freedom of the Press,14 and
Whalen v. Roe.15 The last two decisions actually support the validity of EO 420, while the first is
inapplicable to the present case.

In Griswold, the U.S. Supreme Court declared unconstitutional a state law that prohibited the use
and distribution of contraceptives because enforcement of the law would allow the police entry
into the bedrooms of married couples. Declared the U.S. Supreme Court: "Would we allow the
police to search the sacred precincts of the marital bedrooms for telltale signs of the use of
contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage
relationship." Because the facts and the issue involved in Griswold are materially different from
the present case, Griswold has no persuasive bearing on the present case.

In U.S. Justice Department, the issue was not whether the State could collect and store
information on individuals from public records nationwide but whether the State could withhold
such information from the press. The premise of the issue in U.S. Justice Department is that the
State can collect and store in a central database information on citizens gathered from public
records across the country. In fact, the law authorized the Department of Justice to collect and
preserve fingerprints and other criminal identification records nationwide. The law also
authorized the Department of Justice to exchange such information with "officials of States, cities
and other institutions." The Department of Justice treated such information as confidential. A CBS
news correspondent and the Reporters Committee demanded the criminal records of four
members of a family pursuant to the Freedom of Information Act. The U.S. Supreme Court ruled
that the Freedom of Information Act expressly exempts release of information that would
"constitute an unwarranted invasion of personal privacy," and the information demanded falls
under that category of exempt information.

With the exception of the 8 specific data shown on the ID card, the personal data collected and
recorded under EO 420 are treated as "strictly confidential" under Section 6(d) of EO 420. These
data are not only strictly confidential but also personal matters. Section 7, Article III of the 1987
Constitution grants the "right of the people to information on matters of public concern." Personal
matters are exempt or outside the coverage of the people’s right to information on matters of
public concern. The data treated as "strictly confidential" under EO 420 being private matters and
not matters of public concern, these data cannot be released to the public or the press. Thus, the
ruling in U.S. Justice Department does not collide with EO 420 but actually supports the validity
EO 420.

Whalen v. Roe is the leading American case on the constitutional protection for control over
information. In Whalen, the U.S. Supreme Court upheld the validity of a New York law that
required doctors to furnish the government reports identifying patients who received prescription
drugs that have a potential for abuse. The government maintained a central computerized database
containing the names and addresses of the patients, as well as the identity of the prescribing
doctors. The law was assailed because the database allegedly infringed the right to privacy of
individuals who want to keep their personal matters confidential. The U.S. Supreme Court
rejected the privacy claim, and declared:

Disclosures of private medical information to doctors, to hospital personnel, to insurance

companies, and to public health agencies are often an essential part of modern medical practice
even when the disclosure may reflect unfavorably on the character of the patient. Requiring such
disclosures to representatives of the State having responsibility for the health of the community
does not automatically amount to an impermissible invasion of privacy. (Emphasis supplied)

Compared to the personal medical data required for disclosure to the New York State in Whalen,
the 14 specific data required for disclosure to the Philippine government under EO 420 are far
less sensitive and far less personal. In fact, the 14 specific data required under EO 420 are routine
data for ID systems, unlike the sensitive and potentially embarrassing medical records of patients
taking prescription drugs. Whalen, therefore, carries persuasive force for upholding the
constitutionality of EO 420 as non-violative of the right to privacy.
Subsequent U.S. Supreme Court decisions have reiterated Whalen. In Planned Parenthood of
Central Missouri v. Danforth,16 the U.S. Supreme Court upheld the validity of a law that required
doctors performing abortions to fill up forms, maintain records for seven years, and allow the
inspection of such records by public health officials. The U.S. Supreme Court ruled that
"recordkeeping and reporting requirements that are reasonably directed to the preservation of
maternal health and that properly respect a patient’s confidentiality and privacy are permissible."

Again, in Planned Parenthood of Southeastern Pennsylvania v. Casey,17 the U.S. Supreme Court
upheld a law that required doctors performing an abortion to file a report to the government that
included the doctor’s name, the woman’s age, the number of prior pregnancies and abortions that
the woman had, the medical complications from the abortion, the weight of the fetus, and the
marital status of the woman. In case of state-funded institutions, the law made such information
publicly available. In Casey, the U.S. Supreme Court stated: "The collection of information with
respect to actual patients is a vital element of medical research, and so it cannot be said that the
requirements serve no purpose other than to make abortion more difficult."

Compared to the disclosure requirements of personal data that the U.S. Supreme Court have
upheld in Whalen, Danforth and Casey as not violative of the right to privacy, the disclosure
requirements under EO 420 are far benign and cannot therefore constitute violation of the right to
privacy. EO 420 requires disclosure of 14 personal data that are routine for ID purposes, data that
cannot possibly embarrass or humiliate anyone.

Petitioners have not shown how EO 420 will violate their right to privacy. Petitioners cannot show
such violation by a mere facial examination of EO 420 because EO 420 narrowly draws the data
collection, recording and exhibition while prescribing comprehensive safeguards. Ople v.
Torres18 is not authority to hold that EO 420 violates the right to privacy because in that case the
assailed executive issuance, broadly drawn and devoid of safeguards, was annulled solely on the
ground that the subject matter required legislation. As then Associate Justice, now Chief Justice
Artemio V. Panganiban noted in his concurring opinion in Ople v. Torres, "The voting is decisive
only on the need for appropriate legislation, and it is only on this ground that the petition is
granted by this Court."

EO 420 applies only to government entities that already maintain ID systems and issue ID cards
pursuant to their regular functions under existing laws. EO 420 does not grant such government
entities any power that they do not already possess under existing laws. In contrast, the assailed
executive issuance in Ople v. Torres sought to establish a "National Computerized Identification
Reference System,"19 a national ID system that did not exist prior to the assailed executive
issuance. Obviously, a national ID card system requires legislation because it creates a new
national data collection and card issuance system where none existed before.
In the present case, EO 420 does not establish a national ID system but makes the existing
sectoral card systems of government entities like GSIS, SSS, Philhealth and LTO less costly, more
efficient, reliable and user-friendly to the public. Hence, EO 420 is a proper subject of executive
issuance under the President’s constitutional power of control over government entities in the
Executive department, as well as under the President’s constitutional duty to ensure that laws are
faithfully executed.

WHEREFORE, the petitions are DISMISSED. Executive Order No. 420 is declared VALID.

SO ORDERED
G.R. No. 155282 January 17, 2005

MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD (MTRCB), petitioner,

vs.
ABS-CBN BROADCASTING CORPORATION and LOREN LEGARDA, respondents.

DECISION

SANDOVAL-GUTIERREZ, J.:

For our resolution is the petition for review on certiorari under Rule 45 of the 1997 Rules of
Court, as amended, filed by petitioner Movie and Television Review and Classification Board
(MTRCB) against ABS-CBN Broadcasting Corporation (ABS-CBN) and former Senator Loren
Legarda, respondents, assailing the (a) Decision dated November 18, 1997,1 and (b) Order dated
August 26, 20022 of the Regional Trial Court, Branch 77, Quezon City, in Civil Case No. Q-93-
16052.

The facts are undisputed.

On October 15, 1991, at 10:45 in the evening, respondent ABS-CBN aired "Prosti-tuition," an
episode of the television (TV) program "The Inside Story" produced and hosted by respondent
Legarda. It depicted female students moonlighting as prostitutes to enable them to pay for their
tuition fees. In the course of the program, student prostitutes, pimps, customers, and some faculty
members were interviewed. The Philippine Women’s University (PWU) was named as the school
of some of the students involved and the facade of PWU Building at Taft Avenue, Manila
conspicuously served as the background of the episode.

The showing of "The Inside Story" caused uproar in the PWU community. Dr. Leticia P. de
Guzman, Chancellor and Trustee of the PWU, and the PWU Parents and Teachers Association
filed letter-complaints3 with petitioner MTRCB. Both complainants alleged that the episode
besmirched the name of the PWU and resulted in the harassment of some of its female students.

Acting on the letter-complaints, the MTRCB Legal Counsel initiated a formal complaint with the
MTRCB Investigating Committee, alleging among others, that respondents (1) did not submit
"The Inside Story" to petitioner for its review and (2) exhibited the same without its permission,
thus, violating Section 74 of Presidential Decree (P.D.) No. 19865 and Section 3,6 Chapter III and
Section 7,7 Chapter IV of the MTRCB Rules and Regulations.8

In their answer,9 respondents explained that the "The Inside Story" is a "public affairs program,
news documentary and socio-political editorial," the airing of which is protected by the
constitutional provision on freedom of expression and of the press. Accordingly, petitioner has no
power, authority and jurisdiction to impose any form of prior restraint upon respondents.

On February 5, 1993, after hearing and submission of the parties’ memoranda, the MTRCB
Investigating Committee rendered a Decision, the decretal portion of which reads:

"WHEREFORE, the aforementioned premises, the respondents are ordered to pay the sum of
TWENTY THOUSAND PESOS (P20,000.00) for non-submission of the program, subject of this
case for review and approval of the MTRCB.

Heretofore, all subsequent programs of the ‘The Inside Story’ and all other programs of the ABS-
CBN Channel 2 of the same category shall be submitted to the Board of Review and Approval
before showing; otherwise the Board will act accordingly."101awphi1.nét

On appeal, the Office of Atty. Henrietta S. Mendez, Chairman of the MTRCB, issued a Decision
dated March 12, 1993 affirming the above ruling of its Investigating Committee.11 Respondents
filed a motion for reconsideration but was denied in a Resolution dated April 14, 1993.12

Respondents then filed a special civil action for certiorari with the Regional Trial Court (RTC),
Branch 77, Quezon City. It seeks to: (1) declare as unconstitutional Sections 3(b),13 3(c),14
3(d),15 4,16 7,17 and 1118 of P. D. No. 1986 and Sections 3,19 7,20 and 2821 (a) of the MTRCB
Rules and Regulations;22 (2) (in the alternative) exclude the "The Inside Story" from the
coverage of the above cited provisions; and (3) annul and set aside the MTRCB Decision dated
March 12, 1993 and Resolution dated April 14, 1993. Respondents averred that the above-cited
provisions constitute "prior restraint" on respondents’ exercise of freedom of expression and of
the press, and, therefore, unconstitutional. Furthermore, the above cited provisions do not apply to
the "The Inside Story" because it falls under the category of "public affairs program, news
documentary, or socio-political editorials" governed by standards similar to those governing
newspapers.

On November 18, 1997, the RTC rendered a Decision23 in favor of respondents, the dispositive
portion of which reads:

"WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered:

1. ANNULLING AND SETTING ASIDE the assailed Decision and Resolution of MTRCB dated
March 12, 1993;

2. DECLARING AND DECREEING that Sections 3 (b), (c), and (d), 4, 7, and 11 of P.D. No.
1986 and Sections 3, 7, 28 (a) of its Implementing Rules do not cover the TV Program "The
Inside Story" and other similar programs, they being public affairs programs which can be
equated to newspapers; and

3. MAKING PERMANENT the Injunction against Respondents or all persons acting in their
behalf.

SO ORDERED."

Petitioner filed a motion for reconsideration but was denied.24

Hence, this petition for review on certiorari.

Petitioner MTRCB through the Solicitor General, contends inter alia: first, all television
programs, including "public affairs programs, news documentaries, or socio-political editorials,"
are subject to petitioner’s power of review under Section 3 (b) of P.D. No. 1986 and pursuant to
this Court’s ruling in Iglesia ni Cristo vs. Court of Appeals ;25 second, television programs are
more accessible to the public than newspapers, thus, the liberal regulation of the latter cannot
apply to the former; third, petitioner’s power to review television programs under Section 3(b) of
P. D. No. 1986 does not amount to "prior restraint;" and fourth, Section 3(b) of P. D. No. 1986
does not violate respondents’ constitutional freedom of expression and of the press.

Respondents take the opposite stance.

The issue for our resolution is whether the MTRCB has the power or authority to review the "The
Inside Story" prior to its exhibition or broadcast by television.

The petition is impressed with merit.

The present controversy brings into focus the provisions of Section 3 of P. D. No. 1986, partly
reproduced as follows:

"SEC. 3. Powers and Functions. – The BOARD shall have the following functions, powers and
duties:

xxxxxx

b) To screen, review and examine all motion pictures as herein defined, television programs,
including publicity materials such as advertisements, trailers and stills, whether such motion
pictures and publicity materials be for theatrical or non-theatrical distribution, for television
broadcast or for general viewing, imported or produced in the Philippines, and in the latter case,
whether they be for local viewing or for export.1a\^/phi1.net
c) To approve or disapprove, delete objectionable portions from and/or prohibit the importation,
exportation, production, copying, distribution, sale, lease exhibition and/or television broadcast of
the motion pictures, television programs and publicity materials subject of the preceding
paragraph, which, in the judgment of the BOARD applying contemporary Filipino cultural values
as standard, are objectionable for being immoral, indecent, contrary to law and/or good customs,
injurious to the prestige of the Republic of the Philippines or its people, or with a dangerous
tendency to encourage the commission of violence or of a wrong or crime, such as but not limited
to:

xxx

d) To supervise, regulate, and grant, deny or cancel, permits for the importation, exportation,
production, copying, distribution, sale, lease, exhibition, and/or television broadcast of all motion
pictures, television programs and publicity materials, to the end and that no such pictures,
programs and materials as are determined by the BOARD to be objectionable in accordance with
paragraph (c) hereof shall be imported, exported, produced, copied, reproduced, distributed, sold,
leased, exhibited and/or broadcast by television;

x x x x x x."

Vis-a-vis the foregoing provisions, our task is to decide whether or not petitioner has the power to
review the television program "The Inside Story." The task is not Herculean because it merely
resurrects this Court En Banc’s ruling in Iglesia ni Cristo vs. Court of Appeals.26 There, the
Iglesia ni Cristo sought exception from petitioner’s review power contending that the term
"television programs" under Sec. 3 (b) does not include "religious programs" which are protected
under Section 5, Article III of the Constitution.27 This Court, through Justice Reynato Puno,
categorically ruled that P.D. No. 1986 gives petitioner "the power to screen, review and examine
"all television programs," emphasizing the phrase "all television programs," thus:

"The law gives the Board the power to screen, review and examine all ‘television programs.’ By
the clear terms of the law, the Board has the power to ‘approve, delete x x x and/or prohibit the x
x x exhibition and/or television broadcast of x x x television programs x x x.’ The law also directs
the Board to apply ‘contemporary Filipino cultural values as standard’ to determine those which
are objectionable for being ‘immoral, indecent, contrary to law and/or good customs, injurious to
the prestige of the Republic of the Philippines and its people, or with a dangerous tendency to
encourage the commission of violence or of a wrong or crime.’"

Settled is the rule in statutory construction that where the law does not make any exception, courts
may not except something therefrom, unless there is compelling reason apparent in the law to
justify it.28 Ubi lex non distinguit nec distinguere debemos. Thus, when the law says "all
television programs," the word "all" covers all television programs, whether religious, public
affairs, news documentary, etc.29 The principle assumes that the legislative body made no
qualification in the use of general word or expression.30

It then follows that since "The Inside Story" is a television program, it is within the jurisdiction of
the MTRCB over which it has power of review.

Here, respondents sought exemption from the coverage of the term "television programs" on the
ground that the "The Inside Story" is a "public affairs program, news documentary and socio-
political editorial" protected under Section 4,31 Article III of the Constitution. Albeit,
respondent’s basis is not freedom of religion, as in Iglesia ni Cristo,32 but freedom of expression
and of the press, the ruling in Iglesia ni Cristo applies squarely to the instant issue. It is significant
to note that in Iglesia ni Cristo, this Court declared that freedom of religion has been accorded a
preferred status by the framers of our fundamental laws, past and present, "designed to protect the
broadest possible liberty of conscience, to allow each man to believe as his conscience directs x x
x." Yet despite the fact that freedom of religion has been accorded a preferred status, still this
Court, did not exempt the Iglesia ni Cristo’s religious program from petitioner’s review power.

Respondents claim that the showing of "The Inside Story" is protected by the constitutional
provision on freedom of speech and of the press. However, there has been no declaration at all by
the framers of the Constitution that freedom of expression and of the press has a preferred status.

If this Court, in Iglesia ni Cristo, did not exempt religious programs from the jurisdiction and
review power of petitioner MTRCB, with more reason, there is no justification to exempt
therefrom "The Inside Story" which, according to respondents, is protected by the constitutional
provision on freedom of expression and of the press, a freedom bearing no preferred status.

The only exceptions from the MTRCB’s power of review are those expressly mentioned in
Section 7 of P. D. No. 1986, such as (1) television programs imprinted or exhibited by the
Philippine Government and/or its departments and agencies, and (2) newsreels. Thus:

"SEC. 7. Unauthorized showing or exhibition. – It shall be unlawful for any person or entity to
exhibit or cause to be exhibited in any moviehouse, theatre, or public place or by television within
the Philippines any motion picture, television program or publicity material, including trailers,
and stills for lobby displays in connection with motion pictures, not duly authorized by the owner
or his assignee and passed by the BOARD; or to print or cause to be printed on any motion
picture to be exhibited in any theater or public place or by television a label or notice showing the
same to have been officially passed by the BOARD when the same has not been previously
authorized, except motion pictures, television programs or publicity material imprinted or
exhibited by the Philippine Government and/or its departments and agencies, and newsreels."
Still in a desperate attempt to be exempted, respondents contend that the "The Inside Story" falls
under the category of newsreels.

Their contention is unpersuasive.

P. D. No. 1986 does not define "newsreels." Webster’s dictionary defines newsreels as short
motion picture films portraying or dealing with current events.33 A glance at actual samples of
newsreels shows that they are mostly reenactments of events that had already happened. Some
concrete examples are those of Dziga Vertov’s Russian Kino-Pravda newsreel series (Kino-Pravda
means literally "film-truth," a term that was later translated literally into the French cinema verite)
and Frank Capra’s Why We Fight series.34 Apparently, newsreels are straight presentation of
events. They are depiction of "actualities." Correspondingly, the MTRCB Rules and
Regulations35 implementing P. D. No. 1986 define newsreels as "straight news reporting, as
distinguished from news analyses, commentaries and opinions. Talk shows on a given issue are
not considered newsreels."36 Clearly, the "The Inside Story" cannot be considered a newsreel. It
is more of a public affairs program which is described as a variety of news treatment; a cross
between pure television news and news-related commentaries, analysis and/or exchange of
opinions.37 Certainly, such kind of program is within petitioner’s review power.

It bears stressing that the sole issue here is whether petitioner MTRCB has authority to review
"The Inside Story." Clearly, we are not called upon to determine whether petitioner violated
Section 4, Article III (Bill of Rights) of the Constitution providing that no law shall be passed
abridging the freedom of speech, of oppression or the press. Petitioner did not disapprove or ban
the showing of the program. Neither did it cancel respondents’ permit. Respondents were merely
penalized for their failure to submit to petitioner "The Inside Story" for its review and approval.
Therefore, we need not resolve whether certain provisions of P. D. No. 1986 and the MTRCB
Rules and Regulations specified by respondents contravene the Constitution.

Consequently, we cannot sustain the RTC’s ruling that Sections 3 (c) (d), 4, 7 and 11 of P. D. No.
1986 and Sections 3, 7 and 28 (a) of the MTRCB Rules and Regulations are unconstitutional. It is
settled that no question involving the constitutionality or validity of a law or governmental act
may be heard and decided by the court unless there is compliance with the legal requisites for
judicial inquiry, namely: (1) that the question must be raised by the proper party; (2) that there
must be an actual case or controversy; (3) that the question must be raised at the earliest possible
opportunity; and, (4) that the decision on the constitutional or legal question must be necessary to
the determination of the case itself.38

WHEREFORE, the instant petition is GRANTED.l^vvphi1.net The assailed RTC Decision dated
November 18, 1997 and Order dated August 26, 2002 are hereby REVERSED. The Decision
dated March 12, 1993 of petitioner MTRCB is AFFIRMED. Costs against respondents.
So odered.
G.R. No. 159751 December 6, 2006

GAUDENCIO E. FERNANDO and RUDY ESTORNINOS, petitioners,

vs.
COURT OF APPEALS, respondent.

DECISION

QUISUMBING, J.:

This petition for review on certiorari assails the Decision1 dated March 21, 2003 and the
Resolution dated September 2, 2003, of the Court of Appeals in CA-G.R. CR No. 25796, which
affirmed the Decision of the Regional Trial Court of Manila (RTC), Branch 21, in Criminal Case
No. 99-176582.

The RTC convicted Gaudencio E. Fernando and Rudy Estorninos for violation of Article 2012 of
the Revised Penal Code, as amended by Presidential Decree Nos. 960 and 969, and sentenced
each to imprisonment of four (4) years and one (1) day to six (6) years of prision correccional,
and to pay the fine of P6,000 and cost of suit.

The facts as culled from the records are as follows.

Acting on reports of sale and distribution of pornographic materials, officers of the Philippine
National Police Criminal Investigation and Detection Group in the National Capital Region (PNP-
CIDG NCR) conducted police surveillance on the store bearing the name of Gaudencio E.
Fernando Music Fair (Music Fair). On May 5, 1999, Judge Perfecto Laguio of the Regional Trial
Court of Manila, Branch 19, issued Search Warrant No. 99-1216 for violation of Article 201 of the
Revised Penal Code against petitioner Gaudencio E. Fernando and a certain Warren Tingchuy.
The warrant ordered the search of Gaudencio E. Fernando Music Fair at 564 Quezon Blvd.,
corner Zigay Street, Quiapo, Manila, and the seizure of the following items:

a. Copies of New Rave Magazines with nude obscene pictures;

b. Copies of IOU Penthouse Magazine with nude obscene pictures;

c. Copies of Hustler International Magazine with nude obscene pictures; and

d. Copies of VHS tapes containing pornographic shows.3

On the same day, police officers of the PNP-CIDG NCR served the warrant on Rudy Estorninos,
who, according to the prosecution, introduced himself as the store attendant of Music Fair. The
police searched the premises and confiscated twenty-five (25) VHS tapes and ten (10) different
magazines, which they deemed pornographic.

On September 13, 1999, petitioners with Warren Tingchuy, were charged in an Information which
reads as follows:

That on or about May 5, 1999, in the City of Manila, Philippines, the said accused, did then and
there willfully, unlawfully, feloniously, publicly and jointly exhibit indecent or immoral acts,
scenes or shows at Music Fair, located at 564 Quezon Blvd., corner Zigay [S]t., Quiapo[,] this
City[,] by then and there selling and exhibiting obscene copies of x-rated VHS Tapes, lewd films
depicting men and women having sexual intercourse[,] lewd photographs of nude men and
women in explicating (sic) positions which acts serve no other purpose but to satisfy the market
for lust or pornography to public view.

Contrary to law.4

When arraigned, petitioners and Tingchuy pleaded not guilty to the offense charged. Thereafter,
trial ensued.

The prosecution offered the confiscated materials in evidence and presented the following
witnesses: Police Inspector Rodolfo L. Tababan, SPO4 Rolando Buenaventura and Barangay
Chairperson Socorro Lipana, who were all present during the raid. After the prosecution presented
its evidence, the counsel for the accused moved for leave of court to file a demurrer to evidence,
which the court granted. On October 5, 2000, the RTC however denied the demurrer to evidence
and scheduled the reception of evidence for the accused. A motion for reconsideration was
likewise denied.

Thereafter, the accused waived their right to present evidence and instead submitted the case for
decision.5

The RTC acquitted Tingchuy for lack of evidence to prove his guilt, but convicted herein
petitioners as follows:

WHEREFORE, premises considered, the Court finds accused GAUDENCIO FERNANDO and
RUDY ESTORNINOS GUILTY beyond reasonable doubt of the crime charged and are hereby
sentenced to suffer the indeterminate penalty of FOUR (4) YEARS and ONE (1) DAY as
minimum to SIX (6) YEARS of prision correccional as maximum, to pay fine of P6,000.00 each
and to pay the cost.
For failure of the prosecution to prove the guilt of accused WARREN TINGCHUY beyond
reasonable doubt, he is hereby ACQUITTED of the crime charged.

The VHS tapes and the nine (9) magazines utilized as evidence in this case are hereby confiscated
in favor of the government.

SO ORDERED.6

Petitioners appealed to the Court of Appeals. But the appellate courtlatter affirmed in toto the
decision of the trial court, as follows,

WHEREFORE, finding no reversible error on the part of the trial court, the decision appealed
from is AFFIRMED IN TOTO.

Costs against accused-appellants.

SO ORDERED.7

Hence the instant petition assigning the following errors:

I. Respondent court erred in convicting petitioner Fernando even if he was not present at the time
of the raid

II. Respondent erred in convicting petitioner Estorninos who was not doing anything illegal at the
time of the raid.8

Simply, the issue in this case is whether the appellate court erred in affirming the petitioners’
conviction.

Petitioners contend that the prosecution failed to prove that at the time of the search, they were
selling pornographic materials. Fernando contends that since he was not charged as the owner of
an establishment selling obscene materials, the prosecution must prove that he was present during
the raid and that he was selling the said materials. Moreover, he contends that the appellate court’s
reason for convicting him, on a presumption of continuing ownership shown by an expired
mayor’s permit, has no sufficient basis since the prosecution failed to prove his ownership of the
establishment. Estorninos, on the other hand, insists that he was not an attendant in Music Fair,
nor did he introduce himself so.9

The Solicitor General counters that owners of establishments selling obscene publications are
expressly held liable under Article 201, and petitioner Fernando’s ownership was sufficiently
proven. As the owner, according to the Solicitor General, Fernando was naturally a seller of the
prohibited materials and liable under the Information. The Solicitor General also maintains that
Estorninos was identified by Barangay Chairperson Socorro Lipana as the store attendant, thus he
was likewise liable.10

At the outset, we note that the trial court gave petitionersthem the opportunity to adduce present
their evidence to disprove refute the prosecution’s evidence.11 . Instead, they waived their right to
present evidence and opted to submitted the case for decision.a1 12 The trial court therefore
resolved the case on the basis of prosecution’s evidence against the petitioners.

As obscenity is an unprotected speech which the State has the right to regulate, the State in
pursuing its mandate to protect, as parens patriae, the public from obscene, immoral and indecent
materials must justify the regulation or limitation.

One such regulation is Article 201 of the Revised Penal Code. To be held liable, the prosecution
must prove that (a) the materials, publication, picture or literature are obscene; and (b) the
offender sold, exhibited, published or gave away such materials.13 Necessarily, that the
confiscated materials are obscene must be proved.

Almost a century has passed since the Court first attempted to define obscenity in People v.
Kottinger.14 There the Court defined obscenity as something which is offensive to chastity,
decency or delicacy. The test to determine the existence of obscenity is, whether the tendency of
the matter charged as obscene, is to deprave or corrupt those whose minds are open to such
immoral influences and into whose hands a publication or other article charged as being obscene
may fall.15 Another test according to Kottinger is "that which shocks the ordinary and common
sense of men as an indecency."16 But, Kottinger hastened to say that whether a picture is obscene
or indecent must depend upon the circumstances of the case, and that ultimately, the question is to
be decided by the judgment of the aggregate sense of the community reached by it.17

Thereafter, the Court in People v. Go Pin18 and People v. Padan y Alova, et al.,19 involving a
prosecution under Article 201 of the Revised Penal Code, laid the tests which did little to clearly
draw the fine lines of obscenity.

In People v. Go Pin, the Court said:

If such pictures, sculptures and paintings are shown in art exhibits and art galleries for the cause
of art, to be viewed and appreciated by people interested in art, there would be no offense
committed. However, the pictures here in question were used not exactly for art’s sake but rather
for commercial purposes. In other words, the supposed artistic qualities of said pictures were
being commercialized so that the cause of art was of secondary or minor importance. Gain and
profit would appear to have been the main, if not the exclusive consideration in their exhibition;
and it would not be surprising if the persons who went to see those pictures and paid entrance fees
for the privilege of doing so, were not exactly artists and persons interested in art and who
generally go to art exhibitions and galleries to satisfy and improve their artistic tastes, but rather
people desirous of satisfying their morbid curiosity and taste, and lust, and for love [of]
excitement, including the youth who because of their immaturity are not in a position to resist and
shield themselves from the ill and perverting effects of these pictures.20

People v. Padan y Alova, et al. in a way reaffirmed the standards set in Go Pin but with its own
test of "redeeming feature." The Court therein said that:

[A]n actual exhibition of the sexual act, preceded by acts of lasciviousness, can have no
redeeming feature. In it, there is no room for art. One can see nothing in it but clear and
unmitigated obscenity, indecency, and an offense to public morals, inspiring and causing as it
does, nothing but lust and lewdness, and exerting a corrupting influence specially on the youth of
the land.21

Notably, the Court in the later case of Gonzales v. Kalaw Katigbak,22 involving motion pictures,
still applied the "contemporary community standards" of Kottinger but departed from the rulings
of Kottinger, Go Pin and Padan y Alova in that the Court measures obscenity in terms of the
"dominant theme" of the material taken as a "whole" rather than in isolated passages.

Later, in Pita v. Court of Appeals, concerning alleged pornographic publications, the Court
recognized that Kottinger failed to afford a conclusive definition of obscenity, and that both Go
Pin and Padan y Alova raised more questions than answers such as, whether the absence or
presence of artists and persons interested in art and who generally go to art exhibitions and
galleries to satisfy and improve their artistic tastes, determine what art is; or that if they find
inspiration in the exhibitions, whether such exhibitions cease to be obscene.23 Go Pin and Padan
y Alova gave too much latitude for judicial arbitrament, which has permitted ad lib of ideas and
"two-cents worths" among judges as to what is obscene or what is art.24

The Court in Pita also emphasized the difficulty of the question and pointed out how hazy
jurisprudence is on obscenity and how jurisprudence actually failed to settle questions on the
matter. Significantly, the dynamism of human civilization does not help at all. It is evident that
individual tastes develop, adapt to wide-ranging influences, and keep in step with the rapid
advance of civilization.25 It seems futile at this point to formulate a perfect definition of
obscenity that shall apply in all cases.

There is no perfect definition of "obscenity" but the latest word is that of Miller v. California
which established basic guidelines, to wit: (a) whether to the average person, applying
contemporary standards would find the work, taken as a whole, appeals to the prurient interest;
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically
defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious
literary, artistic, political, or scientific value.26 But, it would be a serious misreading of Miller to
conclude that the trier of facts has the unbridled discretion in determining what is "patently
offensive."27 No one will be subject to prosecution for the sale or exposure of obscene materials
unless these materials depict or describe patently offensive "hard core" sexual conduct.28
Examples included (a) patently offensive representations or descriptions of ultimate sexual acts,
normal or perverted, actual or simulated; and (b) patently offensive representations or descriptions
of masturbation, excretory functions, and lewd exhibition of the genitals.29 What remains clear is
that obscenity is an issue proper for judicial determination and should be treated on a case to case
basis and on the judge’s sound discretion.

In this case, the trial court found the confiscated materials obscene and the Court of Appeals
affirmed such findings. The trial court in ruling that the confiscated materials are obscene,
reasoned as follows:

Are the magazines and VHS tapes confiscated by the raiding team obscene or offensive to
morals? . . .

Pictures of men and women in the nude doing the sexual act appearing in the nine (9) confiscated
magazines namely Dalaga, Penthouse, Swank, Erotic, Rave, Playhouse, Gallery and two (2)
issues of QUI are offensive to morals and are made and shown not for the sake of art but rather
for commercial purposes, that is gain and profit as the exclusive consideration in their exhibition.
The pictures in the magazine exhibited indecent and immoral scenes and acts…The exhibition of
the sexual act in their magazines is but a clear and unmitigated obscenity, indecency and an
offense to public morals, inspiring…lust and lewdness, exerting a corrupting influence especially
on the youth. (Citations omitted)

The VHS tapes also [exhibit] nude men and women doing the sexual intercourse. The tape
entitled "Kahit sa Pangarap Lang" with Myra Manibog as the actress shows the naked body of the
actress. The tape exhibited indecent and immoral scenes and acts. Her dancing movements
excited the sexual instinct of her male audience. The motive may be innocent, but the
performance was revolting and shocking to good minds...

In one (1) case the Supreme Court ruled:

Since the persons who went to see those pictures and paid entrance fees were usually not artists or
persons interested in art to satisfy and inspire their artistic tastes but persons who are desirous of
satisfying their morbid curiosity, taste and lust and for [love] of excitement, including the youth
who because of their immaturity are not in a position to resist and shield themselves from the ill
and perverting effects of the pictures, the display of such pictures for commercial purposes is a
violation of Art. 201. If those pictures were shown in art exhibits and art galleries for the cause of
art, to be viewed and appreciated by people interested in art, there would be no offense committed
(People vs. Go Pin, 97 Phil 418).

[B]ut this is not so in this case.30

Findings of fact of the Court of Appeals affirming that of the trial court are accorded great respect,
even by this Court, unless such findings are patently unsupported by the evidence on record or the
judgment itself is based on misapprehension of facts.31 In this case, petitioners neither presented
contrary evidence nor questioned the trial court’s findings. There is also no showing that the trial
court, in finding the materials obscene, was arbitrary.

Did petitioners participate in the distribution and exhibition of obscene materials?

We emphasize that mere possession of obscene materials, without intention to sell, exhibit, or
give them away, is not punishable under Article 201, considering the purpose of the law is to
prohibit the dissemination of obscene materials to the public. The offense in any of the forms
under Article 201 is committed only when there is publicity.32 The law does not require that a
person be caught in the act of selling, giving away or exhibiting obscene materials to be liable, for
as long as the said materials are offered for sale, displayed or exhibited to the public. In the
present case, we find that petitioners are engaged in selling and exhibiting obscene materials.

Notably, the subject premises of the search warrant was the Gaudencio E. Fernando Music Fair,
named after petitioner Fernando.33 The mayor’s permit was under his name. Even his bail bond
shows that Hhe lives in the same place.34 Moreover, the mayor’s permit dated August 8, 1996,
shows that he is the owner/operator of the store.35 While the mayor’s permit had already expired,
it does not negate the fact that Fernando owned and operated the establishment. It would be
absurd to make his failure to renew his business permit and illegal operation a shield from
prosecution of an unlawful act. Furthermore, when he preferred not to present contrary evidence,
the things which he possessed were presumptively his.36

Petitioner Estorninos is likewise liable as the store attendant actively engaged in selling and
exhibiting the obscene materials. Prosecution witness Police Inspector Tababan, who led the PNP-
CIDG NCR that conducted the search, identified him as the store attendant upon whom the search
warrant was served.37 Tababan had no motive for testifying falsely against Estorninos and we
uphold the presumption of regularity in the performance of his duties. Lastly, this Court accords
great respect to and treats with finality the findings of the trial court on the matter of credibility of
witnesses, absent any palpable error or arbitrariness in their findings.38 In our view, no reversible
error was committed by the appellate court as well as the trial court in finding the herein
petitioners guilty as charged.
WHEREFORE, the Decision dated March 21, 2003 and the Resolution dated September 2, 2003,
of the Court of Appeals affirming the Decision of the Regional Trial Court of Manila, Branch 21,
in Criminal Case No. 99-176582 are hereby AFFIRMED.

SO ORDERED.
G.R. No. L-59329 July 19, 1985

EASTERN BROADCASTING CORPORATION (DYRE) petitioner,

vs.
THE HON. JOSE P. DANS, JR., MINISTER OF TRANSPORTATION & COMMUNICATIONS,
THE HON. CEFERINO S. CARREON, COMMISSIONER, NATIONAL TELECOM.,
COMMISSION, ET AL., respondents.

RESOLUTION

GUTIERREZ, JR., J.:

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

The petitioner contended that it was denied due process when it was closed on the mere allegation
that the radio station was used to incite people to sedition. it alleged that no hearing was held and
not a bit of proof was submitted to establish a factual basis for the closure. The petitioner was not
informed beforehand why administrative action which closed the radio station was taken against
it. No action was taken by the respondents to entertain a motion seeking the reconsideration of the
closure action. The petitioner also raised the issue of freedom of speech. It appears from the
records that the respondents' general charge of "inciting people to commit acts of sedition" arose
from the petitioner's shift towards what it stated was the coverage of public events and the airing
of programs geared towards public affairs.

On March 25, 1985, before the Court could promulgate a decision squarely passing upon all the
issues raised, the petitioner through its president, Mr. Rene G. Espina suddenly filed a motion to
withdraw or dismiss the petition.

The petitioner alleged:

1. Petitioner Eastern Broadcasting Corporation has already sold its radio broadcasting station
in favor of Manuel B. Pastrana as well as its rights and interest in the radio station DYRE in Cebu
including its right to operate and its equipment;

2. Respondent National Telecommunications Commission has expressed its willingness to

grant to the said new owner Manuel B. Pastrana the requisite license and franchise to operate the
said radio station and to approve the sale of the radio transmitter of said station DYRE;
3. In view of the foregoing, petitioner has no longer any interest in said case, and the new
owner, Manuel B. Pastrana is likewise not interested in pursuing the case any further.

The case, therefore, has become moot and academic. However, for the guidance of inferior courts
and administrative tribunals exercising quasi-judicial functions, the Court issues the following
guidelines:

(1) The cardinal primary requirements in administrative proceedings laid down by this Court
in Ang Tibay v. Court of Industrial Relations (69 Phil. 635) should be followed before a broadcast
station may be closed or its operations curtailed. 1

(2) It is necessary to reiterate that while there is no controlling and precise definition of due
process, it furnishes an unavoidable standard to which government action must conform in order
that any deprivation of life, liberty, or property, in each appropriate case, may be valid (Ermita-
Malate Hotel and Motel Operators Association v. City Mayor, 20 SCRA 849).

(3) All forms of media, whether print or broadcast, are entitled to the broad protection of the
freedom of speech and expression clause. The test for limitations on freedom of expression
continues to be the clear and present danger rule — that words are used in such circumstances and
are of such a nature as to create a clear and present danger that they will bring about the
substantive evils that the lawmaker has a right to prevent, In his Constitution of the Philippines
(2nd Edition, pp. 569-570) Chief Justice Enrique M. Fernando cites at least nine of our decisions
which apply the test — (Primicias v. Fugoso [80 Phil. 71], American Bible Society v. City of
Manila [101 Phil. 386], Cabansag v. Fernandez [102 Phil. 152], Vera v. Arca [28 SCRA 351],
Navarro v. Villegas [31 SCRA 931], Imbong v. Ferrer [35 SCRA 28], Badoy v. Commission on
Elections [35 SCRA 285], People v. Ferrer [48 SCRA 382], and the Philippine Blooming Mills
Employees Organization v. Philippine Blooming Mills Co., Inc. [51 SCRA 189]. More recently,
the clear and present danger test was applied in J.B.L. Reyes in behalf of the Anti-Bases Coalition
v. Bagatsing [125 SCRA 553].

(4) The clear and present danger test, however, does not lend itself to a simplistic and all
embracing interpretation applicable to all utterances in all forums.

Broadcasting has to be licensed. Airwave frequencies have to be allocated among qualified users.
A broadcast corporation cannot simply appropriate a certain frequency without regard for
government regulation or for the rights of others.

All forms of communication are entitled to the broad protection of the freedom of expression
clause. Necessarily, however, the freedom of television and radio broadcasting is somewhat lesser
in scope than the freedom accorded to newspaper and print media.
The American Court in Federal Communications Commission v. Pacifica Foundation (438 U.S.
726), confronted with a patently offensive and indecent regular radio program, explained why
radio broadcasting, more than other forms of communications, receives the most limited
protection from the free expression clause. First, broadcast media have established a uniquely
pervasive presence in the lives of all citizens, Material presented over the airwaves confronts the
citizen, not only in public, but in the privacy of his home. Second, broadcasting is uniquely
accessible to children. Bookstores and motion picture theaters may be prohibited from making
certain material available to children, but the same selectivity cannot be done in radio or
television, where the listener or viewer is constantly tuning in and out.

Similar considerations apply in the area of national security.

The broadcast media have also established a uniquely pervasive presence in the lives of all
Filipinos, Newspapers and current books are found only in metropolitan areas and in the
poblaciones of municipalities accessible to fast and regular transportation. Even here, there are
low income masses who find the cost of books, newspapers, and magazines beyond their humble
means. Basic needs like food and shelter perforce enjoy high priorities.

On the other hand, the transistor radio is found everywhere. The television set is also becoming
universal. Their message may be simultaneously received by a national or regional audience of
listeners including the indifferent or unwilling who happen to be within reach of a blaring radio or
television set. The materials broadcast over the airwaves reach every person of every age, persons
of varying susceptibilities to persuasion, persons of different I.Q.s and mental capabilities,
persons whose reactions to inflammatory or offensive speech would be difficult to monitor or
predict. The impact of the vibrant speech is forceful and immediate. Unlike readers of the printed
work, the radio audience has lesser opportunity to cogitate analyze, and reject the utterance.

(5) The clear and present danger test, therefore, must take the particular circumstances of
broadcast media into account. The supervision of radio stations-whether by government or
through self-regulation by the industry itself calls for thoughtful, intelligent and sophisticated
handling.

The government has a right to be protected against broadcasts which incite the listeners to
violently overthrow it. Radio and television may not be used to organize a rebellion or to signal
the start of widespread uprising. At the same time, the people have a right to be informed. Radio
and television would have little reason for existence if broadcasts are limited to bland,
obsequious, or pleasantly entertaining utterances. Since they are the most convenient and popular
means of disseminating varying views on public issues, they also deserve special protection.
(6) The freedom to comment on public affairs is essential to the vitality of a representative
democracy. In the 1918 case of United States v. Bustos (37 Phil. 731) this Court was already
stressing that.

The interest of society and the maintenance of good government demand a full discussion of
public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case
of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public
life may suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm
of a clear conscience. A public officer must not be too thin-skinned with reference to comment
upon his official acts. Only thus can the intelligence and dignity of the individual be exalted.

(7) Broadcast stations deserve the special protection given to all forms of media by the due
process and freedom of expression clauses of the Constitution.

WHEREFORE, the case having become moot and academic, the petitioner's motion to withdraw
or dismiss the petition is hereby GRANTED.

SO ORDERED.
Bayan, et al., Vs. Eduardo Ermita, et al.,
G.R. No. 169838
April 25, 2006

Facts: The petitioners, Bayan, et al., alleged that they are citizens and taxpayers of the Philippines
and that their right as organizations and individuals were violated when the rally they participated
in on October 6, 2005 was violently dispersed by policemen implementing Batas Pambansa No.
880.

Petitioners contended that Batas Pambansa No. 880 is clearly a violation of the Constitution and
the International Covenant on Civil and Political Rights and other human rights treaties of which
the Philippines is a signatory. They argue that B.P. No. 880 requires a permit before one can stage
a public assembly regardless of the presence or absence of a clear and present danger. It also
curtails the choice of venue and is thus repugnant to the freedom of expression clause as the time
and place of a public assembly form part of the message which the expression is sought.
Furthermore, it is not content-neutral as it does not apply to mass actions in support of the
government. The words “lawful cause,” “opinion,” “protesting or influencing” suggest the
exposition of some cause not espoused by the government. Also, the phrase “maximum tolerance”
shows that the law applies to assemblies against the government because they are being tolerated.
As a content-based legislation, it cannot pass the strict scrutiny test. This petition and two other
petitions were ordered to be consolidated on February 14, 2006. During the course of oral
arguments, the petitioners, in the interest of a speedy resolution of the petitions, withdrew the
portions of their petitions raising factual issues, particularly those raising the issue of whether B.P.
No. 880 and/or CPR is void as applied to the rallies of September 20, October 4, 5 and 6, 2005.

Issue: Whether the Calibrated Pre-emptive response and the Batas Pambansa No. 880, specifically
Sections 4, 5, 6, 12, 13(a) and 14(a) violates Art. III Sec. 4 of the Philippine Constitution as it
causes a disturbing effect on the exercise by the people of the right to peaceably assemble.

Held: Section 4 of Article III of the Philippine Constitution provides that no law shall be passed
abridging the freedom of speech, of expression, or of the press, or the right of the people
peaceably to assemble and petition the government for redress of grievances. The right to
peaceably assemble and petition for redress of grievances, together with freedom of speech, of
expression, and of the press, is a right that enjoys dominance in the sphere of constitutional
protection. For this rights represent the very basis of a functional democratic polity, without which
all the other rights would be meaningless and unprotected.

However, it must be remembered that the right, while sacrosanct, is not absolute. It may be
regulated that it shall not be injurious to the equal enjoyment of others having equal rights, nor
injurious to the rights of the community or society. The power to regulate the exercise of such and
other constitutional rights is termed the sovereign “police power,” which is the power to prescribe
regulations, to promote the health, morals, peace, education, good order or safety, and general
welfare of the people.

B.P. No 880 is not an absolute ban of public assemblies but a restriction that simply regulates the
time, place and manner of the assemblies. B.P. No. 880 thus readily shows that it refers to all
kinds of public assemblies that would use public places. The reference to “lawful cause” does not
make it content-based because assemblies really have to be for lawful causes, otherwise they
would not be “peaceable” and entitled to protection. Neither the words “opinion,” “protesting,”
and “influencing” in of grievances come from the wording of the Constitution, so its use cannot
be avoided. Finally, maximum tolerance is for the protection and benefit of all rallyist and is
independent of the content of the expression in the rally.

Furthermore, the permit can only be denied on the ground of clear and present danger to public
order, public safety, public convenience, public morals or public health. This is a recognized
exception to the exercise of the rights even under the Universal Declaration of Human Rights and
The International Covenant on Civil and Political Rights.

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

G.R. No. 153888 July 9, 2003

ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES, INC., herein represented by PROF.
ABDULRAFIH H. SAYEDY, petitioner,
vs.
OFFICE OF THE EXECUTIVE SECRETARY of the Office of the President of the Philippines,
herein represented by HON. ALBERTO G. ROMULO, Executive Secretary, and the OFFICE ON
MUSLIM AFFAIRS, herein represented by its Executive Director, HABIB MUJAHAB
HASHIM, respondents.

CORONA, J.:

Before us is a petition for prohibition filed by petitioner Islamic Da'wah Council of the
Philippines, Inc. (IDCP) praying for the declaration of nullity of Executive Order (EO) 46, s. 2001
and the prohibition of herein respondents Office of the Executive Secretary and Office of Muslim
Affairs (OMA) from implementing the subject EO.

Petitioner IDCP, a corporation that operates under Department of Social Welfare and
Development License No. SB-01-085, is a non-governmental organization that extends voluntary
services to the Filipino people, especially to Muslim communities. It claims to be a federation of
national Islamic organizations and an active member of international organizations such as the
Regional Islamic Da'wah Council of Southeast Asia and the Pacific (RISEAP)1 and The World
Assembly of Muslim Youth. The RISEAP accredited petitioner to issue halal2 certifications in the
Philippines. Thus, among the functions petitioner carries out is to conduct seminars, orient
manufacturers on halal food and issue halal certifications to qualified products and manufacturers.

Petitioner alleges that, on account of the actual need to certify food products as halal and also due
to halal food producers' request, petitioner formulated in 1995 internal rules and procedures based
on the Qur'an3 and the Sunnah4 for the analysis of food, inspection thereof and issuance of halal
certifications. In that same year, petitioner began to issue, for a fee, certifications to qualified
products and food manufacturers. Petitioner even adopted for use on its halal certificates a distinct
sign or logo registered in the Philippine Patent Office under Patent No. 4-2000-03664.

On October 26, 2001, respondent Office of the Executive Secretary issued EO 465 creating the
Philippine Halal Certification Scheme and designating respondent OMA to oversee its
implementation. Under the EO, respondent OMA has the exclusive authority to issue halal
certificates and perform other related regulatory activities.

On May 8, 2002, a news article entitled "OMA Warns NGOs Issuing Illegal 'Halal' Certification"
was published in the Manila Bulletin, a newspaper of general circulation. In said article, OMA
warned Muslim consumers to buy only products with its official halal certification since those
without said certification had not been subjected to careful analysis and therefore could contain
pork or its derivatives. Respondent OMA also sent letters to food manufacturers asking them to
secure the halal certification only from OMA lest they violate EO 46 and RA 4109.6 As a result,
petitioner lost revenues after food manufacturers stopped securing certifications from it.

Hence, this petition for prohibition.

Petitioner contends that the subject EO violates the constitutional provision on the separation of
Church and State.7 It is unconstitutional for the government to formulate policies and guidelines
on the halal certification scheme because said scheme is a function only religious organizations,
entity or scholars can lawfully and validly perform for the Muslims. According to petitioner, a
food product becomes halal only after the performance of Islamic religious ritual and prayer.
Thus, only practicing Muslims are qualified to slaughter animals for food. A government agency
like herein respondent OMA cannot therefore perform a religious function like certifying
qualified food products as halal.

Petitioner also maintains that the respondents violated Section 10, Article III of the 1987
Constitution which provides that "(n)o law impairing the obligation of contracts, shall be passed."
After the subject EO was implemented, food manufacturers with existing contracts with petitioner
ceased to obtain certifications from the latter.

Moreover, petitioner argues that the subject EO violates Sections 15 and 16 of Article XIII of the
1987 Constitution which respectively provide:

ROLE AND RIGHTS OF PEOPLE'S ORGANIZATIONS

Sec. 15. The State shall respect the role of independent people's organizations to enable the people
to pursue and protect, within the democratic framework, their legitimate and collective interests
and aspirations through peaceful and lawful means.

People's organizations are bona fide associations of citizens with demonstrated capacity to
promote the public interest and with identifiable leadership, membership, and structure.

Sec. 16. The rights of the people and their organizations to effective and reasonable participation
at all levels of social, political, and economic decision-making shall not be abridged. The State
shall, by law, facilitate, the establishment of adequate consultation mechanisms.

According to petitioner, the subject EO was issued with utter haste and without even consulting
Muslim people's organizations like petitioner before it became effective.

We grant the petition.

OMA was created in 1981 through Executive Order No. 697 (EO 697) "to ensure the integration
of Muslim Filipinos into the mainstream of Filipino society with due regard to their beliefs,
customs, traditions, and institutions."8 OMA deals with the societal, legal, political and economic
concerns of the Muslim community as a "national cultural community" and not as a religious
group. Thus, bearing in mind the constitutional barrier between the Church and State, the latter
must make sure that OMA does not intrude into purely religious matters lest it violate the non-
establishment clause and the "free exercise of religion" provision found in Article III, Section 5 of
the 1987 Constitution.9

Freedom of religion was accorded preferred status by the framers of our fundamental law. And
this Court has consistently affirmed this preferred status, well aware that it is "designed to protect
the broadest possible liberty of conscience, to allow each man to believe as his conscience directs,
to profess his beliefs, and to live as he believes he ought to live, consistent with the liberty of
others and with the common good."10

Without doubt, classifying a food product as halal is a religious function because the standards
used are drawn from the Qur'an and Islamic beliefs. By giving OMA the exclusive power to
classify food products as halal, EO 46 encroached on the religious freedom of Muslim
organizations like herein petitioner to interpret for Filipino Muslims what food products are fit for
Muslim consumption. Also, by arrogating to itself the task of issuing halal certifications, the State
has in effect forced Muslims to accept its own interpretation of the Qur'an and Sunnah on halal
food.

To justify EO 46's intrusion into the subject religious activity, the Solicitor General argues that the
freedom of religion is subservient to the police power of the State. By delegating to OMA the
authority to issue halal certifications, the government allegedly seeks to protect and promote the
muslim Filipinos' right to health, and to instill health consciousness in them.

We disagree.

Only the prevention of an immediate and grave danger to the security and welfare of the
community can justify the infringement of religious freedom.11 If the government fails to show
the seriousness and immediacy of the threat, State intrusion is constitutionally unacceptable. In a
society with a democratic framework like ours, the State must minimize its interference with the
affairs of its citizens and instead allow them to exercise reasonable freedom of personal and
religious activity.

In the case at bar, we find no compelling justification for the government to deprive muslim
organizations, like herein petitioner, of their religious right to classify a product as halal, even on
the premise that the health of muslim Filipinos can be effectively protected by assigning to OMA
the exclusive power to issue halal certifications. The protection and promotion of the muslim
Filipinos' right to health are already provided for in existing laws and ministered to by
government agencies charged with ensuring that food products released in the market are fit for
human consumption, properly labeled and safe. Unlike EO 46, these laws do not encroach on the
religious freedom of muslims.

Section 48(4) of the Administrative Code of 1987 gives to the National Meat Inspection
Commission (NMIC) of the Department of Agriculture (DOA) the power to inspect slaughtered
animals intended for human consumption to ensure the safety of the meat released in the market.
Another law, RA 7394, otherwise known as "The Consumer Act of 1992," gives to certain
government departments the duty to protect the interests of the consumer, promote his general
welfare and to establish standards of conduct for business and industry.12 To this end, a food
product, before its distribution to the market, is required to secure the Philippine Standard
Certification Mark after the concerned department inspects and certifies its compliance with
quality and safety standards.13

One such government agency designated by RA 7394 is the Bureau of Food and Drugs (BFD) of
the Department of Health (DOH). Under Article 22 of said law, BFD has the duty to promulgate
and enforce rules and regulations fixing and establishing a reasonable definition and standard of
identity, a standard of quality and a standard of fill of containers for food. The BFD also ensures
that food products released in the market are not adulterated.14

Furthermore, under Article 48 of RA 7394, the Department of Trade and Industry (DTI) is tasked
to protect the consumer against deceptive, unfair and unconscionable sales acts or practices as
defined in Article 50.15 DTI also enforces compulsory labeling and fair packaging to enable the
consumer to obtain accurate information as to the nature, quality and quantity of the contents of
consumer products and to facilitate his comparison of the value of such products.16

With these regulatory bodies given detailed functions on how to screen and check the quality and
safety of food products, the perceived danger against the health of muslim and non-muslim
Filipinos alike is totally avoided. Of great help are the provisions on labeling of food products
(Articles 74 to 85)17 of RA 7394. In fact, through these labeling provisions, the State ably
informs the consuming public of the contents of food products released in the market. Stiff
sanctions are imposed on violators of said labeling requirements.

Through the laws on food safety and quality, therefore, the State indirectly aids muslim
consumers in differentiating food from non-food products. The NMIC guarantees that the meat
sold in the market has been thoroughly inspected and fit for consumption. Meanwhile, BFD
ensures that food products are properly categorized and have passed safety and quality standards.
Then, through the labeling provisions enforced by the DTI, muslim consumers are adequately
apprised of the products that contain substances or ingredients that, according to their Islamic
beliefs, are not fit for human intake. These are the non-secular steps put in place by the State to
ensure that the muslim consumers' right to health is protected. The halal certifications issued by
petitioner and similar organizations come forward as the official religious approval of a food
product fit for muslim consumption.

We do not share respondents' apprehension that the absence of a central administrative body to
regulate halal certifications might give rise to schemers who, for profit, will issue certifications
for products that are not actually halal. Aside from the fact that muslim consumers can actually
verify through the labels whether a product contains non-food substances, we believe that they are
discerning enough to know who the reliable and competent certifying organizations in their
community are. Before purchasing a product, they can easily avert this perceived evil by a
diligent inquiry on the reliability of the concerned certifying organization.

WHEREFORE, the petition is GRANTED. Executive Order 46, s. 2000, is hereby declared
NULL AND VOID. Consequently, respondents are prohibited from enforcing the same.

SO ORDERED.

Estrada vs Escritor (August 4, 2003)

Estrada vs. Escritor
AM P-02-1651, August 4, 2003

FACTS:

Soledad Escritor is a court interpreter since 1999 in the RTC of Las Pinas City. Alejandro
Estrada, the complainant, wrote to Judge Jose F. Caoibes, presiding judge of Branch 253, RTC of
Las Pinas City, requesting for an investigation of rumors that Escritor has been living with
Luciano Quilapio Jr., a man not her husband, and had eventually begotten a son. Escritor’s
husband, who had lived with another woman, died a year before she entered into the judiciary.
On the other hand, Quilapio is still legally married to another woman. Estrada is not related to
either Escritor or Quilapio and is not a resident of Las Pinas but of Bacoor, Cavite. According to
the complainant, respondent should not be allowed to remain employed in the judiciary for it will
appear as if the court allows such act.

Escritor is a member of the religious sect known as the Jehovah’s Witnesses and the Watch Tower
and Bible Tract Society where her conjugal arrangement with Quilapio is in conformity with their
religious beliefs. After ten years of living together, she executed on July 28, 1991 a “Declaration
of Pledging Faithfulness” which was approved by the congregation. Such declaration is effective
when legal impediments render it impossible for a couple to legalize their union. Gregorio,
Salazar, a member of the Jehovah’s Witnesses since 1985 and has been a presiding minister since
1991, testified and explained the import of and procedures for executing the declaration which
was completely executed by Escritor and Quilapio’s in Atimonan, Quezon and was signed by
three witnesses and recorded in Watch Tower Central Office.

ISSUE:

Whether or not respondent should be found guilty of the administrative charge of “gross and
immoral conduct” and be penalized by the State for such conjugal arrangement.

HELD:

A distinction between public and secular morality and religious morality should be kept in mind.
The jurisdiction of the Court extends only to public and secular morality.

The Court states that our Constitution adheres the benevolent neutrality approach that gives room
for accommodation of religious exercises as required by the Free Exercise Clause. This
benevolent neutrality could allow for accommodation of morality based on religion, provided it
does not offend compelling state interests.
The state’s interest is the preservation of the integrity of the judiciary by maintaining among its
ranks a high standard of morality and decency. “There is nothing in the OCA’s (Office of the
Court Administrator) memorandum to the Court that demonstrates how this interest is so
compelling that it should override respondent’s plea of religious freedom. Indeed, it is
inappropriate for the complainant, a private person, to present evidence on the compelling interest
of the state. The burden of evidence should be discharged by the proper agency of the government
which is the Office of the Solicitor General”.

In order to properly settle the case at bar, it is essential that the government be given an
opportunity to demonstrate the compelling state interest it seeks to uphold in opposing the
respondent’s position that her conjugal arrangement is not immoral and punishable as it is within
the scope of free exercise protection. The Court could not prohibit and punish her conduct where
the Free Exercise Clause protects it, since this would be an unconstitutional encroachment of her
right to religious freedom. Furthermore, the court cannot simply take a passing look at
respondent’s claim of religious freedom but must also apply the “compelling state interest” test.

IN VIEW WHEREOF, the case is REMANDED to the Office of the Court Administrator. The
Solicitor General is ordered to intervene in the case where it will be given the opportunity (a) to
examine the sincerity and centrality of respondent's claimed religious belief and practice; (b) to
present evidence on the state's "compelling interest" to override respondent's religious belief and
practice; and (c) to show that the means the state adopts in pursuing its interest is the least
restrictive to respondent's religious freedom. The rehearing should be concluded thirty (30) days
from the Office of the Court Administrator's receipt of this Decision.

G.R. No. L-53622 April 25, 1980

JOVITO R. SALONGA, petitioner,
vs.
CAPTAIN ROLANDO HERMOSO, TRAVEL PROCESSING CENTER, and GENERAL
FABIAN VER, respondents.

FERNANDO, C.J.:

This is not the first time petitioner Jovito R. Salonga came to this Tribunal by way of a mandamus
proceeding to compel the issuance to him of a certificate of eligibility to travel. In the first case,
Salonga v. Madella, 1 the case became moot and academic as the Office of the Solicitor General,
in its answer to the petition, stated that the travel eligibility certificate was not denied and, as a
matter of fact, had been granted. Nonetheless, a brief separate opinion was filed, concurring in the
resolution, and worded thus: "Clearly this petition had assumed a moot and academic character.
Its dismissal is thus indicated. May I just add these few words as my response to the plea of
petitioner in his Manifestation and Reply dated October 28, 1978. This is how I would view the
matter not only where petitioner is concerned but in all other similar cases. Respondent Travel
Processing Center should discharge its injunction conformably to the mandate of the Universal
Declaration of Human Rights on the right to travel. One of the highlights of the keynote address
of President Marcos in the Manila World Law Conference in celebration of the World Peace
Through Law Day on August 21, 1977 was the lifting of 'the ban on international travel.' There
should be fidelity to such a pronouncement. It is the experience of the undersigned in his lectures
abroad the last few years, in the United States as well as in Malaysia, Singapore and Australia,
that respect accorded constitutional rights under the present emergency regime had elicited the
commendation of members of the bench, the bar, and the academe in foreign lands. It is likewise
worthy of notice that in his keynote address to the International Law Association, President
Marcos made reference to martial law being instituted in accordance with law and that the
Constitution had been applied in appropriate cases. As an agency of the executive branch,
therefore, the Travel Processing Center should ever be on its guard, lest the impression be created
that such declarations amount, to paraphrase Justice Jackson, to no more than munificent bequests
in a pauper's will. Petitioner, to my mind, is justified, the more so in the light of the Answer of
Acting Solicitor General Vicente Mendoza, to an affirmative response to his prayer in his
Manifestation and Reply 'that under the circumstances mentioned in the Petition, Petitioner is
entitled to travel abroad, and that it is in recognition of this right that Respondents have issued his
Certificate of Eligibility to Travel, as mentioned in the Answer. 2

The present petition is likewise impressed with a moot and academic aspect. In the motion to
dismiss of the Solicitor General dated April 21, 1980, it was stated that the certificate of eligibility
to travel had been granted petitioner. A xeroxed copy was enclosed. A resolution for dismissal is,
therefore, in order.

From the docket of this Court, it appears that other petitions of this character had been filed in the
past, namely, Santos v. The Special Committee on Travel Abroad, 3 Pimentel v. Travel Processing
Center, 4 and Gonzales v. Special Committee on Travel. 5 In the aforesaid cases, as in this and the
earlier Salonga petition, there was no occasion to pass on the merits of the controversy as the
certificates of eligibility to travel were granted. The necessity for any ruling was thus obviated.
Nonetheless, in view of the likelihood that in the future this Court may be faced again with a
situation like the present which takes up its time and energy needlessly, it is desirable that
respondent Travel Processing Center should exercise the utmost care to avoid the impression that
certain citizens desirous of exercising their constitutional right to travel could be subjected to
inconvenience or annoyance. In the address of President and Prime Minister Ferdinand E. Marcos
before the American Newspaper Publishers Association last Tuesday April 22, 1980, emphasized
anew the respect accorded constitutional rights The freedom to travel is certainly one of the most
cherished. He cited with approval the ringing affirmation of Willoughby, who, as he noted was
"partial to the claims of liberty." 6 Burdick 7 and Willis, 8 both of whom were equally convinced
that there be no erosion to human rights even in times of martial law, likewise received from
President Marcos the accolade of his approval. It would appear, therefore, that in case of doubt of
the Officer-in-Charge of the Travel Processing Center, the view of General Fabian Ver should
immediately be sought. It goes without saying that the petition for such certificate of eligibility to
travel be filed at the earliest opportunity to facilitate the granting thereof and preclude any
disclaimer as to the person desiring to travel being in any way responsible for any delay.

WHEREFORE, the petition is dismissed for being moot and academic.

G.R. No. L-62100 May 30, 1986

RICARDO L. MANOTOC, JR., petitioner,
vs.
THE COURT OF APPEALS, HONS. SERAFIN E. CAMILON and RICARDO L. PRONOVE,
JR., as Judges of the Court of First Instance of Rizal, Pasig branches, THE PEOPLE OF THE
PHILIPPINES, the SECURITIES & EXCHANGE COMISSION, HON. EDMUNDO M.
REYES, as Commissioner of Immigration, and the Chief of the Aviation Security Command
(AVSECOM), respondents.

FERNAN, J.:

The issue posed for resolution in this petition for review may be stated thus: Does a person facing
a criminal indictment and provisionally released on bail have an unrestricted right to travel?

Petitioner Ricardo L. Manotoc, Jr., is one of the two principal stockholders of Trans-Insular
Management, Inc. and the Manotoc Securities, Inc., a stock brokerage house. Having transferred
the management of the latter into the hands of professional men, he holds no officer-position in
said business, but acts as president of the former corporation.

Following the "run" on stock brokerages caused by stock broker Santamaria's flight from this
jurisdiction, petitioner, who was then in the United States, came home, and together with his co-
stockholders, filed a petition with the Securities and Exchange Commission for the appointment
of a management committee, not only for Manotoc Securities, Inc., but likewise for Trans-Insular
Management, Inc. The petition relative to the Manotoc Securities, Inc., docketed as SEC Case No.
001826, entitled, "In the Matter of the Appointment of a Management Committee for Manotoc
Securities, Inc., Teodoro Kalaw, Jr., Ricardo Manotoc, Jr., Petitioners", was granted and a
management committee was organized and appointed.

Pending disposition of SEC Case No. 001826, the Securities and Exchange Commission
requested the then Commissioner of Immigration, Edmundo Reyes, not to clear petitioner for
departure and a memorandum to this effect was issued by the Commissioner on February 4, 1980
to the Chief of the Immigration Regulation Division.

When a Torrens title submitted to and accepted by Manotoc Securities, Inc. was suspected to be a
fake, six of its clients filed six separate criminal complaints against petitioner and one Raul
Leveriza, Jr., as president and vice-president, respectively, of Manotoc Securities, Inc. In due
course, corresponding criminal charges for estafa were filed by the investigating fiscal before the
then Court of First Instance of Rizal, docketed as Criminal Cases Nos. 45399 and 45400, assigned
to respondent Judge Camilon, and Criminal Cases Nos. 45542 to 45545, raffled off to Judge
Pronove. In all cases, petitioner has been admitted to bail in the total amount of P105,000.00, with
FGU Instance Corporation as surety.

On March 1, 1982, petitioner filed before each of the trial courts a motion entitled, "motion for
permission to leave the country," stating as ground therefor his desire to go to the United States,
"relative to his business transactions and opportunities." 1 The prosecution opposed said motion
and after due hearing, both trial judges denied the same. The order of Judge Camilon dated March
9, 1982, reads:

Accused Ricardo Manotoc Jr. desires to leave for the United States on the all embracing ground
that his trip is ... relative to his business transactions and opportunities.

The Court sees no urgency from this statement. No matter of any magnitude is discerned to
warrant judicial imprimatur on the proposed trip.

In view thereof, permission to leave the country is denied Ricardo Manotoc, Jr. now or in the
future until these two (2) cases are terminated . 2

On the other hand, the order of Judge Pronove dated March 26, 1982, reads in part:

6.-Finally, there is also merit in the prosecution's contention that if the Court would allow the
accused to leave the Philippines the surety companies that filed the bail bonds in his behalf might
claim that they could no longer be held liable in their undertakings because it was the Court which
allowed the accused to go outside the territorial jurisdiction of the Philippine Court, should the
accused fail or decide not to return.

WHEREFORE, the motion of the accused is DENIED. 3

It appears that petitioner likewise wrote the Immigration Commissioner a letter requesting the
recall or withdrawal of the latter's memorandum dated February 4, 1980, but said request was also
denied in a letter dated May 27, 1982.

Petitioner thus filed a petition for certiorari and mandamus before the then Court of Appeals 4
seeking to annul the orders dated March 9 and 26, 1982, of Judges Camilon and Pronove,
respectively, as well as the communication-request of the Securities and Exchange Commission,
denying his leave to travel abroad. He likewise prayed for the issuance of the appropriate writ
commanding the Immigration Commissioner and the Chief of the Aviation Security Command
(AVSECOM) to clear him for departure.

On October 5, 1982, the appellate court rendered a decision 5 dismissing the petition for lack of
merit.
Dissatisfied with the appellate court's ruling, petitioner filed the instant petition for review on
certiorari. Pending resolution of the petition to which we gave due course on April 14, 1983 6
petitioner filed on August 15, 1984 a motion for leave to go abroad pendente lite. 7 In his motion,
petitioner stated that his presence in Louisiana, U.S.A. is needed in connection "with the
obtention of foreign investment in Manotoc Securities, Inc." 8 He attached the letter dated August
9, 1984 of the chief executive officer of the Exploration Company of Louisiana, Inc., Mr.
Marsden W. Miller 9 requesting his presence in the United States to "meet the people and
companies who would be involved in its investments." Petitioner, likewise manifested that on
August 1, 1984, Criminal Cases Nos. 4933 to 4936 of the Regional Trial Court of Makati
(formerly Nos. 45542-45545) had been dismissed as to him "on motion of the prosecution on the
ground that after verification of the records of the Securities and Exchange Commission ... (he)
was not in any way connected with the Manotoc Securities, Inc. as of the date of the commission
of the offenses imputed to him." 10 Criminal Cases Nos. 45399 and 45400 of the Regional Trial
Court of Makati, however, remained pending as Judge Camilon, when notified of the dismissal of
the other cases against petitioner, instead of dismissing the cases before him, ordered merely the
informations amended so as to delete the allegation that petitioner was president and to substitute
that he was "controlling/majority stockholder,'' 11 of Manotoc Securities, Inc. On September 20,
1984, the Court in a resolution en banc denied petitioner's motion for leave to go abroad pendente
lite. 12

Petitioner contends that having been admitted to bail as a matter of right, neither the courts which
granted him bail nor the Securities and Exchange Commission which has no jurisdiction over his
liberty, could prevent him from exercising his constitutional right to travel.

Petitioner's contention is untenable.

A court has the power to prohibit a person admitted to bail from leaving the Philippines. This is a
necessary consequence of the nature and function of a bail bond.

Rule 114, Section 1 of the Rules of Court defines bail as the security required and given for the
release of a person who is in the custody of the law, that he will appear before any court in which
his appearance may be required as stipulated in the bail bond or recognizance.

Its object is to relieve the accused of imprisonment and the state of the burden of keeping him,
pending the trial, and at the same time, to put the accused as much under the power of the court as
if he were in custody of the proper officer, and to secure the appearance of the accused so as to
answer the call of the court and do what the law may require of him. 13
The condition imposed upon petitioner to make himself available at all times whenever the court
requires his presence operates as a valid restriction on his right to travel. As we have held in
People vs. Uy Tuising, 61 Phil. 404 (1935).

... the result of the obligation assumed by appellee (surety) to hold the accused amenable at all
times to the orders and processes of the lower court, was to prohibit said accused from leaving the
jurisdiction of the Philippines, because, otherwise, said orders and processes will be nugatory, and
inasmuch as the jurisdiction of the courts from which they issued does not extend beyond that of
the Philippines they would have no binding force outside of said jurisdiction.

Indeed, if the accused were allowed to leave the Philippines without sufficient reason, he may be
placed beyond the reach of the courts.

The effect of a recognizance or bail bond, when fully executed or filed of record, and the prisoner
released thereunder, is to transfer the custody of the accused from the public officials who have
him in their charge to keepers of his own selection. Such custody has been regarded merely as a
continuation of the original imprisonment. The sureties become invested with full authority over
the person of the principal and have the right to prevent the principal from leaving the state. 14

If the sureties have the right to prevent the principal from leaving the state, more so then has the
court from which the sureties merely derive such right, and whose jurisdiction over the person of
the principal remains unaffected despite the grant of bail to the latter. In fact, this inherent right of
the court is recognized by petitioner himself, notwithstanding his allegation that he is at total
liberty to leave the country, for he would not have filed the motion for permission to leave the
country in the first place, if it were otherwise.

To support his contention, petitioner places reliance upon the then Court of Appeals' ruling in
People vs. Shepherd (C.A.-G.R. No. 23505-R, February 13, 1980) particularly citing the
following passage:

... The law obliges the bondsmen to produce the person of the appellants at the pleasure of the
Court. ... The law does not limit such undertaking of the bondsmen as demandable only when the
appellants are in the territorial confines of the Philippines and not demandable if the appellants
are out of the country. Liberty, the most important consequence of bail, albeit provisional, is
indivisible. If granted at all, liberty operates as fully within as without the boundaries of the
granting state. This principle perhaps accounts for the absence of any law or jurisprudence
expressly declaring that liberty under bail does not transcend the territorial boundaries of the
country.

The faith reposed by petitioner on the above-quoted opinion of the appellate court is misplaced.
The rather broad and generalized statement suffers from a serious fallacy; for while there is,
indeed, neither law nor jurisprudence expressly declaring that liberty under bail does not
transcend the territorial boundaries of the country, it is not for the reason suggested by the
appellate court.

Also, petitioner's case is not on all fours with the Shepherd case. In the latter case, the accused
was able to show the urgent necessity for her travel abroad, the duration thereof and the conforme
of her sureties to the proposed travel thereby satisfying the court that she would comply with the
conditions of her bail bond. in contrast, petitioner in this case has not satisfactorily shown any of
the above. As aptly observed by the Solicitor General in his comment:

A perusal of petitioner's 'Motion for Permission to Leave the Country' will show that it is solely
predicated on petitioner's wish to travel to the United States where he will, allegedly attend to
some business transactions and search for business opportunities. From the tenor and import of
petitioner's motion, no urgent or compelling reason can be discerned to justify the grant of judicial
imprimatur thereto. Petitioner has not sufficiently shown that there is absolute necessity for him to
travel abroad. Petitioner's motion bears no indication that the alleged business transactions could
not be undertaken by any other person in his behalf. Neither is there any hint that petitioner's
absence from the United States would absolutely preclude him from taking advantage of business
opportunities therein, nor is there any showing that petitioner's non-presence in the United States
would cause him irreparable damage or prejudice. 15

Petitioner has not specified the duration of the proposed travel or shown that his surety has agreed
to it. Petitioner merely alleges that his surety has agreed to his plans as he had posted cash
indemnities. The court cannot allow the accused to leave the country without the assent of the
surety because in accepting a bail bond or recognizance, the government impliedly agrees "that it
will not take any proceedings with the principal that will increase the risks of the sureties or affect
their remedies against him. Under this rule, the surety on a bail bond or recognizance may be
discharged by a stipulation inconsistent with the conditions thereof, which is made without his
assent. This result has been reached as to a stipulation or agreement to postpone the trial until
after the final disposition of other cases, or to permit the principal to leave the state or country."
16 Thus, although the order of March 26, 1982 issued by Judge Pronove has been rendered moot
and academic by the dismissal as to petitioner of the criminal cases pending before said judge, We
see the rationale behind said order.

As petitioner has failed to satisfy the trial courts and the appellate court of the urgency of his
travel, the duration thereof, as well as the consent of his surety to the proposed travel, We find no
abuse of judicial discretion in their having denied petitioner's motion for permission to leave the
country, in much the same way, albeit with contrary results, that We found no reversible error to
have been committed by the appellate court in allowing Shepherd to leave the country after it had
satisfied itself that she would comply with the conditions of her bail bond.
The constitutional right to travel being invoked by petitioner is not an absolute right. Section 5,
Article IV of the 1973 Constitution states:

The liberty of abode and of travel shall not be impaired except upon lawful order of the court, or
when necessary in the interest of national security, public safety or public health.

To our mind, the order of the trial court releasing petitioner on bail constitutes such lawful order
as contemplated by the above-quoted constitutional provision.

Finding the decision of the appellate court to be in accordance with law and jurisprudence, the
Court finds that no gainful purpose will be served in discussing the other issues raised by
petitioner.

WHEREFORE, the petition for review is hereby dismissed, with costs against petitioner.

SO ORDERED.
Marcos vs Manglapus

Facts: This case involves a petition of mandamus and prohibition asking the court to order the
respondents Secretary of Foreign Affairs, etc. To issue a travel documents to former Pres. Marcos
and the immediate members of his family and to enjoin the implementation of the President's
decision to bar their return to the Philippines. Petitioners assert that the right of the Marcoses to
return in the Philippines is guaranteed by the Bill of Rights, specifically Sections 1 and 6. They
contended that Pres. Aquino is without power to impair the liberty of abode of the Marcoses
because only a court may do so within the limits prescribed by law. Nor the President impair their
right to travel because no law has authorized her to do so.

They further assert that under international law, their right to return to the Philippines is
guaranteed particularly by the Universal Declaration of Human Rights and the International
Covenant on Civil and Political Rights, which has been ratified by the Philippines.

Issue: Whether or not, in the exercise of the powers granted by the constitution, the President
(Aquino) may prohibit the Marcoses from returning to the Philippines.

Held: "It must be emphasized that the individual right involved is not the right to travel from the
Philippines to other countries or within the Philippines. These are what the right to travel would
normally connote. Essentially, the right involved in this case at bar is the right to return to one's
country, a distinct right under international law, independent from although related to the right to
travel. Thus, the Universal Declaration of Human Rights and the International Covenant on Civil
and Political Rights treat the right to freedom of movement and abode within the territory of a
state, the right to leave the country, and the right to enter one's country as separate and distinct
rights. What the Declaration speaks of is the "right to freedom of movement and residence within
the borders of each state". On the other hand, the Covenant guarantees the right to liberty of
movement and freedom to choose his residence and the right to be free to leave any country,
including his own. Such rights may only be restricted by laws protecting the national security,
public order, public health or morals or the separate rights of others. However, right to enter one's
country cannot be arbitrarily deprived. It would be therefore inappropriate to construe the
limitations to the right to return to ones country in the same context as those pertaining to the
liberty of abode and the right to travel.

The Bill of rights treats only the liberty of abode and the right to travel, but it is a well considered
view that the right to return may be considered, as a generally accepted principle of International
Law and under our Constitution as part of the law of the land.
The court held that President did not act arbitrarily or with grave abuse of discretion in
determining that the return of the Former Pres. Marcos and his family poses a serious threat to
national interest and welfare. President Aquino has determined that the destabilization caused by
the return of the Marcoses would wipe away the gains achieved during the past few years after the
Marcos regime.

The return of the Marcoses poses a serious threat and therefore prohibiting their return to the
Philippines, the instant petition is hereby DISMISSED.
G.R. No. 94284 April 8, 1991

RICARDO C. SILVERIO, petitioner,

vs.
THE COURT OF APPEALS, HON. BENIGNO G. GAVIOLA, as Judge of the Regional Trial
Court of Cebu City, Branch IX, and PEOPLE OF THE PHILIPPINES, respondents.

Quisumbing, Torres & Evangelista for petitioner.

MELENCIO-HERRERA, J.:p

This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court praying that the
Decision of respondent Court of Appeals in CA-G.R. SP No. 15827, entitled "Ricardo C. Silverio
vs. Hon. Benigno C. Gaviola, etc., et al.," dated 31 January 1990, as well as the Resolution of 29
June 1990 denying reconsideration, be set aside.

On 14 October 1985, Petitioner was charged with violation of Section 20 (4) of the Revised
Securities Act in Criminal Case No. CBU-6304 of the Regional Trial Court of Cebu. In due time,
he posted bail for his provisional liberty.

On 26 January 1988, or more than two (2) years after the filing of the Information, respondent
People of the Philippines filed an Urgent ex parte Motion to cancel the passport of and to issue a
hold-departure Order against accused-petitioner on the ground that he had gone abroad several
times without the necessary Court approval resulting in postponements of the arraignment and
scheduled hearings.

Overruling opposition, the Regional Trial Court, on 4 April 1988, issued an Order directing the
Department of Foreign Affairs to cancel Petitioner's passport or to deny his application therefor,
and the Commission on Immigration to prevent Petitioner from leaving the country. This order
was based primarily on the Trial Court's finding that since the filing of the Information on 14
October 1985, "the accused has not yet been arraigned because he has never appeared in Court on
the dates scheduled for his arraignment and there is evidence to show that accused Ricardo C.
Silverio, Sr. has left the country and has gone abroad without the knowledge and permission of
this Court" (Rollo, p. 45). Petitioner's Motion for Reconsideration was denied on 28 July 1988.

Petitioner's Certiorari Petition before the Court of Appeals met a similar fate on 31 January 1990.
Hence, this Petition for Review filed on 30 July 1990.
After the respective pleadings required by the Court were filed, we resolved to give due course
and to decide the case.

Petitioner contends that respondent Court of Appeals erred in not finding that the Trial Court
committed grave abuse of discretion amounting to lack of jurisdiction in issuing its Orders, dated
4 April and 28 July 1988, (1) on the basis of facts allegedly patently erroneous, claiming that the
scheduled arraignments could not be held because there was a pending Motion to Quash the
Information; and (2) finding that the right to travel can be impaired upon lawful order of the
Court, even on grounds other than the "interest of national security, public safety or public
health."

We perceive no reversible error.

1) Although the date of the filing of the Motion to Quash has been omitted by Petitioner, it is
apparent that it was filed long after the filing of the Information in 1985 and only after several
arraignments had already been scheduled and cancelled due to Petitioner's non-appearance. In
fact, said Motion to Quash was set for hearing only on 19 February 1988. Convincingly shown by
the Trial Court and conformed to by respondent Appellate Court is the concurrence of the
following circumstances:

1. The records will show that the information was filed on October 14, 1985. Until this date
(28 July 1988), the case had yet to be arraigned. Several scheduled arraignments were cancelled
and reset, mostly due to the failure of accused Silverio to appear. The reason for accused Silverio's
failure to appear had invariably been because he is abroad in the United States of America;

2. Since the information was filed, until this date, accused Silverio had never appeared in
person before the Court;

3. The bond posted by accused Silverio had been cancelled twice and warrants of arrest had
been issued against him all for the same reason –– failure to appear at scheduled arraignments.

In all candidness, the Court makes the observation that it has given accused Silverio more than
enough consideration. The limit had long been reached (Order, 28 July 1988, Crim. Case No.
CBU-6304, RTC, Cebu, p. 5; Rollo, p. 73).

Patently, therefore, the questioned RTC Orders, dated 4 April 1988 and 28 July 1988, were not
based on erroneous facts, as Petitioner would want this Court to believe. To all appearances, the
pendency of a Motion to Quash came about only after several settings for arraignment had been
scheduled and cancelled by reason of Petitioner's non-appearance.
2) Petitioner's further submission is that respondent Appellate Court "glaringly erred" in
finding that the right to travel can be impaired upon lawful order of the Court, even on grounds
other than the "interest of national security, public safety or public health."

To start with, and this has not been controverted by Petitioner, the bail bond he had posted had
been cancelled and Warrants of Arrest had been issued against him by reason, in both instances, of
his failure to appear at scheduled arraignments. Warrants of Arrest having been issued against him
for violation of the conditions of his bail bond, he should be taken into custody. "Bail is the
security given for the release of a person in custody of the law, furnished by him or a bondsman,
conditioned upon his appearance before any court when so required by the Court or the Rules
(1985 Rules on Criminal Procedure, as amended, Rule 114, Secs. 1 and 2).

The foregoing condition imposed upon an accused to make himself available at all times
whenever the Court requires his presence operates as a valid restriction of his right to travel
(Manotoc, Jr. vs. Court of Appeals, et al. No. 62100, 30 May 1986, 142 SCRA 149). A person
facing criminal charges may be restrained by the Court from leaving the country or, if abroad,
compelled to return (Constitutional Law, Cruz, Isagani A., 1987 Edition, p. 138). So it is also that
"An accused released on bail may be re-arrested without the necessity of a warrant if he attempts
to depart from the Philippines without prior permission of the Court where the case is pending
(ibid., Sec. 20 [2nd
par. ]).

Petitioner takes the posture, however, that while the 1987 Constitution recognizes the power of
the Courts to curtail the liberty of abode within the limits prescribed by law, it restricts the
allowable impairment of the right to travel only on grounds of interest of national security, public
safety or public health, as compared to the provisions on freedom of movement in the 1935 and
1973 Constitutions.

Under the 1935 Constitution, the liberty of abode and of travel were treated under one provision.
Article III, Section 1(4) thereof reads:

The liberty of abode and of changing the same within the limits prescribed by law shall not be
impaired.

The 1973 Constitution altered the 1935 text by explicitly including the liberty of travel, thus:

The liberty of abode and of travel shall not be impaired except upon lawful order of the court or
when necessary in the interest of national security, public safety, or public health (Article IV,
Section 5).
The 1987 Constitution has split the two freedoms into two distinct sentences and treats them
differently, to wit:

Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall
not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired
except in the interest of national security, public safety, or public health, as may be provided by
law.

Petitioner thus theorizes that under the 1987 Constitution, Courts can impair the right to travel
only on the grounds of "national security, public safety, or public health."

The submission is not well taken.

Article III, Section 6 of the 1987 Constitution should be interpreted to mean that while the liberty
of travel may be impaired even without Court Order, the appropriate executive officers or
administrative authorities are not armed with arbitrary discretion to impose limitations. They can
impose limits only on the basis of "national security, public safety, or public health" and "as may
be provided by law," a limitive phrase which did not appear in the 1973 text (The Constitution,
Bernas, Joaquin G.,S.J., Vol. I, First Edition, 1987, p. 263). Apparently, the phraseology in the
1987 Constitution was a reaction to the ban on international travel imposed under the previous
regime when there was a Travel Processing Center, which issued certificates of eligibility to travel
upon application of an interested party (See Salonga vs. Hermoso & Travel Processing Center,
No. 53622, 25 April 1980, 97 SCRA 121).

Article III, Section 6 of the 1987 Constitution should by no means be construed as delimiting the
inherent power of the Courts to use all means necessary to carry their orders into effect in
criminal cases pending before them. When by law jurisdiction is conferred on a Court or judicial
officer, all auxillary writs, process and other means necessary to carry it into effect may be
employed by such Court or officer (Rule 135, Section 6, Rules of Court).

Petitioner's argument that the ruling in Manotoc, Jr., v. Court of Appeals, et al. (supra), to the
effect that the condition imposed upon an accused admitted to bail to make himself available at all
times whenever the Court requires his presence operates as a valid restriction on the right to travel
no longer holds under the 1987 Constitution, is far from tenable. The nature and function of a bail
bond has remained unchanged whether under the 1935, the 1973, or the 1987 Constitution.
Besides, the Manotoc ruling on that point was but a re-affirmation of that laid down long before in
People v. Uy Tuising, 61 Phil. 404 (1935).

Petitioner is facing a criminal charge. He has posted bail but has violated the conditions thereof
by failing to appear before the Court when required. Warrants for his arrest have been issued.
Those orders and processes would be rendered nugatory if an accused were to be allowed to leave
or to remain, at his pleasure, outside the territorial confines of the country. Holding an accused in
a criminal case within the reach of the Courts by preventing his departure from the Philippines
must be considered as a valid restriction on his right to travel so that he may be dealt with in
accordance with law. The offended party in any criminal proceeding is the People of the
Philippines. It is to their best interest that criminal prosecutions should run their course and
proceed to finality without undue delay, with an accused holding himself amenable at all times to
Court Orders and processes.

WHEREFORE, the judgment under review is hereby AFFIRMED. Costs against petitioner,
Ricardo C. Silverio.

SO ORDERED.
G.R. No. 74930 February 13, 1989

RICARDO VALMONTE, OSWALDO CARBONELL, DOY DEL CASTILLO, ROLANDO

BARTOLOME, LEO OBLIGAR, JUN GUTIERREZ, REYNALDO BAGATSING, JUN
"NINOY" ALBA, PERCY LAPID, ROMMEL CORRO and ROLANDO FADUL, petitioners,
vs.
FELICIANO BELMONTE, JR., respondent.

Ricardo C. Valmonte for and in his own behalf and his co-petitioners.

The Solicitor General for respondent.

CORTES, J.:

Petitioners in this special civil action for mandamus with preliminary injunction invoke their right
to information and pray that respondent be directed:

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

(b) to furnish petitioners with certified true copies of the documents evidencing their
respective loans; and/or

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

The controversy arose when petitioner Valmonte wrote respondent Belmonte the following letter:

June 4, 1986

Hon. Feliciano Belmonte

GSIS General Manager
Arroceros, Manila

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

If we could not secure the above documents could we have access to them?

We are premising the above request on the following provision of the Freedom Constitution of the
present regime.

The right of the people to information on matters of public concern shall be recognized. Access to
official records, and to documents and papers pertaining to official acts, transactions or decisions,
shall be afforded the citizen subject to such limitation as may be provided by law. (Art. IV, Sec.
6).

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

Very truly yours,

(Sgd.) RICARDO C. VALMONTE

[Rollo, p. 7.]

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

June 17, 1986

Atty. Ricardo C. Valmonte

108 E. Benin Street
Caloocan City

Dear Compañero:

Possibly because he must have thought that it contained serious legal implications, President &
General Manager Feliciano Belmonte, Jr. referred to me for study and reply your letter to him of
June 4, 1986 requesting a list of the opposition members of Batasang Pambansa who were able to
secure a clean loan of P2 million each on guaranty of Mrs. Imelda Marcos.
My opinion in this regard is that a confidential relationship exists between the GSIS and all those
who borrow from it, whoever they may be; that the GSIS has a duty to its customers to preserve
this confidentiality; and that it would not be proper for the GSIS to breach this confidentiality
unless so ordered by the courts.

As a violation of this confidentiality may mar the image of the GSIS as a reputable financial
institution, I regret very much that at this time we cannot respond positively to your request.

Very truly yours,

(Sgd.) MEYNARDO A. TIRO

Deputy General Counsel
[Rollo, p. 40.]

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

On June 26, 1986, Valmonte, joined by the other petitioners, filed the instant suit.

On July 19, 1986, the Daily Express carried a news item reporting that 137 former members of
the defunct interim and regular Batasang Pambansa, including ten (10) opposition members, were
granted housing loans by the GSIS [Rollo, p. 41.]

Separate comments were filed by respondent Belmonte and the Solicitor General. After
petitioners filed a consolidated reply, the petition was given due course and the parties were
required to file their memoranda. The parties having complied, the case was deemed submitted for
decision.

In his comment respondent raises procedural objections to the issuance of a writ of mandamus,
among which is that petitioners have failed to exhaust administrative remedies.

Respondent claims that actions of the GSIS General Manager are reviewable by the Board of
Trustees of the GSIS. Petitioners, however, did not seek relief from the GSIS Board of Trustees. It
is therefore asserted that since administrative remedies were not exhausted, then petitioners have
no cause of action.
To this objection, petitioners claim that they have raised a purely legal issue, viz., whether or not
they are entitled to the documents sought, by virtue of their constitutional right to information.
Hence, it is argued that this case falls under one of the exceptions to the principle of exhaustion of
administrative remedies.

Among the settled principles in administrative law is that before a party can be allowed to resort
to the courts, he is expected to have exhausted all means of administrative redress available under
the law. The courts for reasons of law, comity and convenience will not entertain a case unless the
available administrative remedies have been resorted to and the appropriate authorities have been
given opportunity to act and correct the errors committed in the administrative forum. However,
the principle of exhaustion of administrative remedies is subject to settled exceptions, among
which is when only a question of law is involved [Pascual v. Provincial Board, 106 Phil. 466
(1959); Aguilar v. Valencia, et al., G.R. No. L-30396, July 30, 1971, 40 SCRA 210; Malabanan v.
Ramento, G.R. No. L-2270, May 21, 1984, 129 SCRA 359.] The issue raised by petitioners,
which requires the interpretation of the scope of the constitutional right to information, is one
which can be passed upon by the regular courts more competently than the GSIS or its Board of
Trustees, involving as it does a purely legal question. Thus, the exception of this case from the
application of the general rule on exhaustion of administrative remedies is warranted. Having
disposed of this procedural issue, We now address ourselves to the issue of whether or not
mandamus hes to compel respondent to perform the acts sought by petitioners to be done, in
pursuance of their right to information.

We shall deal first with the second and third alternative acts sought to be done, both of which
involve the issue of whether or not petitioners are entitled to access to the documents evidencing
loans granted by the GSIS.

This is not the first time that the Court is confronted with a controversy directly involving the
constitutional right to information. In Tañada v. Tuvera, G.R. No. 63915, April 24,1985, 136
SCRA 27 and in the recent case of Legaspi v. Civil Service Commission, G.R. No. 72119, May
29, 1987,150 SCRA 530, the Court upheld the people's constitutional right to be informed of
matters of public interest and ordered the government agencies concerned to act as prayed for by
the petitioners.

The pertinent provision under the 1987 Constitution is Art. 111, Sec. 7 which states:

The right of the people to information on matters of public concern shall be recognized. Access to
official records, and to documents, and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis for policy development, shall be
afforded the citizen, subject to such limitations as may be provided by law.
The right of access to information was also recognized in the 1973 Constitution, Art. IV Sec. 6 of
which provided:

The right of the people to information on 'matters of public concern shall be recognized. Access to
official records, and to documents and papers pertaining to official acts, transactions, or decisions,
shall be afforded the citizen subject to such limitations as may be provided by law.

An informed citizenry with access to the diverse currents in political, moral and artistic thought
and data relative to them, and the free exchange of ideas and discussion of issues thereon, is vital
to the democratic government envisioned under our Constitution. The cornerstone of this
republican system of government is delegation of power by the people to the State. In this system,
governmental agencies and institutions operate within the limits of the authority conferred by the
people. Denied access to information on the inner workings of government, the citizenry can
become prey to the whims and caprices of those to whom the power had been delegated. The
postulate of public office as a public trust, institutionalized in the Constitution (in Art. XI, Sec. 1)
to protect the people from abuse of governmental power, would certainly be were empty words if
access to such information of public concern is denied, except under limitations prescribed by
implementing legislation adopted pursuant to the Constitution.

Petitioners are practitioners in media. As such, they have both the right to gather and the
obligation to check the accuracy of information the disseminate. For them, the freedom of the
press and of speech is not only critical, but vital to the exercise of their professions. The right of
access to information ensures that these freedoms are not rendered nugatory by the government's
monopolizing pertinent information. For an essential element of these freedoms is to keep open a
continuing dialogue or process of communication between the government and the people. It is in
the interest of the State that the channels for free political discussion be maintained to the end that
the government may perceive and be responsive to the people's will. Yet, this open dialogue can
be effective only to the extent that the citizenry is informed and thus able to formulate its will
intelligently. Only when the participants in the discussion are aware of the issues and have access
to information relating thereto can such bear fruit.

The right to information is an essential premise of a meaningful right to speech and expression.
But this is not to say that the right to information is merely an adjunct of and therefore restricted
in application by the exercise of the freedoms of speech and of the press. Far from it. The right to
information goes hand-in-hand with the constitutional policies of full public disclosure * and
honesty in the public service. ** It is meant to enhance the widening role of the citizenry in
governmental decision-making as well as in checking abuse in government.

Yet, like all the constitutional guarantees, the right to information is not absolute. As stated in
Legaspi, the people's right to information is limited to "matters of public concern," and is further
"subject to such limitations as may be provided by law." Similarly, the State's policy of full
disclosure is limited to "transactions involving public interest," and is "subject to reasonable
conditions prescribed by law."

Hence, before mandamus may issue, it must be clear that the information sought is of "public
interest" or "public concern," and is not exempted by law from the operation of the constitutional
guarantee [Legazpi v. Civil Service Commission, supra, at p. 542.]

The Court has always grappled with the meanings of the terms "public interest" and "public
concern". As observed in Legazpi:

In determining whether or not a particular information is of public concern there is no rigid test
which can be applied. "Public concern" like "public interest" is a term that eludes exact definition.
Both terms embrace a broad spectrum of subjects which the public may want to know, either
because these directly affect their lives, or simply because such matters naturally arouse the
interest of an ordinary citezen. In the final analysis, it is for the courts to determine on a case by
case basis whether the matter at issue is of interest or importance, as it relates to or affects the
public. [Ibid. at p. 541]

In the Tañada case the public concern deemed covered by the constitutional right to information
was the need for adequate notice to the public of the various laws which are to regulate the actions
and conduct of citezens. In Legaspi, it was the "legitimate concern of citezensof ensure that
government positions requiring civil service eligibility are occupied only by persons who are
eligibles" [Supra at p. 539.]

The information sought by petitioners in this case is the truth of reports that certain Members of
the Batasang Pambansa belonging to the opposition were able to secure "clean" loans from the
GSIS immediately before the February 7, 1986 election through the intercession of th eformer
First Lady, Mrs. Imelda Marcos.

The GSIS is a trustee of contributions from the government and its employees and the
administrator of various insurance programs for the benefit of the latter. Undeniably, its funds
assume a public character. More particularly, Secs. 5(b) and 46 of P.D. 1146, as amended (the
Revised Government Service Insurance Act of 1977), provide for annual appropriations to pay the
contributions, premiums, interest and other amounts payable to GSIS by the government, as
employer, as well as the obligations which the Republic of the Philippines assumes or guarantees
to pay. Considering the nature of its funds, the GSIS is expected to manage its resources with
utmost prudence and in strict compliance with the pertinent laws or rules and regulations. Thus,
one of the reasons that prompted the revision of the old GSIS law (C.A. No. 186, as amended)
was the necessity "to preserve at all times the actuarial solvency of the funds administered by the
System" [Second Whereas Clause, P.D. No. 1146.] Consequently, as respondent himself admits,
the GSIS "is not supposed to grant 'clean loans.'" [Comment, p. 8.] It is therefore the legitimate
concern of the public to ensure that these funds are managed properly with the end in view of
maximizing the benefits that accrue to the insured government employees. Moreover, the
supposed borrowers were Members of the defunct Batasang Pambansa who themselves
appropriated funds for the GSIS and were therefore expected to be the first to see to it that the
GSIS performed its tasks with the greatest degree of fidelity and that an its transactions were
above board.

In sum, the public nature of the loanable funds of the GSIS and the public office held by the
alleged borrowers make the information sought clearly a matter of public interest and concern.

A second requisite must be met before the right to information may be enforced through
mandamus proceedings, viz., that the information sought must not be among those excluded by
law.

Respondent maintains that a confidential relationship exists between the GSIS and its borrowers.
It is argued that a policy of confidentiality restricts the indiscriminate dissemination of
information.

Yet, respondent has failed to cite any law granting the GSIS the privilege of confidentiality as
regards the documents subject of this petition. His position is apparently based merely on
considerations of policy. The judiciary does not settle policy issues. The Court can only declare
what the law is, and not what the law should be. Under our system of government, policy issues
are within the domain of the political branches of the government, and of the people themselves
as the repository of all State power.

Respondent however contends that in view of the right to privacy which is equally protected by
the Constitution and by existing laws, the documents evidencing loan transactions of the GSIS
must be deemed outside the ambit of the right to information.

There can be no doubt that right to privacy is constitutionally protected. In the landmark case of
Morfe v. Mutuc [130 Phil. 415 (1968), 22 SCRA 424], this Court, speaking through then Mr.
Justice Fernando, stated:

... The right to privacy as such is accorded recognition independently of its identification with
liberty; in itself, it is fully deserving of constitutional protection. The language of Prof. Emerson
is particularly apt: "The concept of limited government has always included the idea that
governmental powers stop short of certain intrusions into the personal life of the citizen. This is
indeed one of the basic distinctions between absolute and limited government. UItimate and
pervasive control of the individual, in all aspects of his life, is the hallmark of the absolute. state,
In contrast, a system of limited government safeguards a private sector, which belongs to the
individual, firmly distinguishing it from the public sector, which the state can control. Protection
of this private sector — protection, in other words, of the dignity and integrity of the individual —
has become increasingly important as modem society has developed. All the forces of
technological age — industrialization, urbanization, and organization — operate to narrow the
area of privacy and facilitate intrusion into it. In modern terms, the capacity to maintain and
support this enclave of private life marks the difference between a democratic and a totalitarian
society." [at pp. 444-445.]

When the information requested from the government intrudes into the privacy of a citizen, a
potential conflict between the rights to information and to privacy may arise. However, the
competing interests of these rights need not be resolved in this case. Apparent from the above-
quoted statement of the Court in Morfe is that the right to privacy belongs to the individual in his
private capacity, and not to public and governmental agencies like the GSIS. Moreover, the right
cannot be invoked by juridical entities like the GSIS. As held in the case of Vassar College v.
Loose Wills Biscuit Co. [197 F. 982 (1912)], a corporation has no right of privacy in its name
since the entire basis of the right to privacy is an injury to the feelings and sensibilities of the
party and a corporation would have no such ground for relief.

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

It may be observed, however, that in the instant case, the concerned borrowers themselves may
not succeed if they choose to invoke their right to privacy, considering the public offices they
were holding at the time the loans were alleged to have been granted. It cannot be denied that
because of the interest they generate and their newsworthiness, public figures, most especially
those holding responsible positions in government, enjoy a more limited right to privacy as
compared to ordinary individuals, their actions being subject to closer public scrutiny [Cf. Ayer
Productions Pty. Ltd. v. Capulong, G.R. Nos. 82380 and 82398, April 29, 1988; See also Cohen v.
Marx, 211 P. 2d 321 (1949).]

Respondent next asserts that the documents evidencing the loan transactions of the GSIS are
private in nature and hence, are not covered by the Constitutional right to information on matters
of public concern which guarantees "(a)ccess to official records, and to documents, and papers
pertaining to official acts, transactions, or decisions" only.

It is argued that the records of the GSIS, a government corporation performing proprietary
functions, are outside the coverage of the people's right of access to official records.
It is further contended that since the loan function of the GSIS is merely incidental to its insurance
function, then its loan transactions are not covered by the constitutional policy of full public
disclosure and the right to information which is applicable only to "official" transactions.

First of all, the "constituent — ministrant" dichotomy characterizing government function has
long been repudiated. In ACCFA v. Confederation of Unions and Government Corporations and
Offices (G.R. Nos. L-21484 and L-23605, November 29, 1969, 30 SCRA 6441, the Court said
that the government, whether carrying out its sovereign attributes or running some business,
discharges the same function of service to the people.

Consequently, that the GSIS, in granting the loans, was exercising a proprietary function would
not justify the exclusion of the transactions from the coverage and scope of the right to
information.

Moreover, the intent of the members of the Constitutional Commission of 1986, to include
government-owned and controlled corporations and transactions entered into by them within the
coverage of the State policy of fun public disclosure is manifest from the records of the
proceedings:

xxx xxx xxx

THE PRESIDING OFFICER (Mr. Colayco).

Commissioner Suarez is recognized.

MR. SUAREZ. Thank you. May I ask the Gentleman a few question?

MR. OPLE. Very gladly.

MR. SUAREZ. Thank you.

When we declare a "policy of full public disclosure of all its transactions" — referring to the
transactions of the State — and when we say the "State" which I suppose would include all of the
various agencies, departments, ministries and instrumentalities of the government....

MR. OPLE. Yes, and individual public officers, Mr. Presiding Officer.

MR. SUAREZ. Including government-owned and controlled corporations.

MR. OPLE. That is correct, Mr. Presiding Officer.

MR. SUAREZ. And when we say "transactions" which should be distinguished from
contracts, agreements, or treaties or whatever, does the Gentleman refer to the steps leading to the
consummation of the contract, or does he refer to the contract itself?

MR. OPLE. The "transactions" used here I suppose is generic and, therefore, it can cover both
steps leading to a contract, and already a consummated contract, Mr. Presiding Officer.

MR. SUAREZ. This contemplates inclusion of negotiations leading to the consummation of

the transaction.

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

MR. SUAREZ. Thank you. [V Record of the Constitutional Commission 24-25.]

(Emphasis supplied.)

Considering the intent of the framers of the Constitution which, though not binding upon the
Court, are nevertheless persuasive, and considering further that government-owned and controlled
corporations, whether performing proprietary or governmental functions are accountable to the
people, the Court is convinced that transactions entered into by the GSIS, a government-
controlled corporation created by special legislation are within the ambit of the people's right to
be informed pursuant to the constitutional policy of transparency in government dealings.

In fine, petitioners are entitled to access to the documents evidencing loans granted by the GSIS,
subject to reasonable regulations that the latter may promulgate relating to the manner and hours
of examination, to the end that damage to or loss of the records may be avoided, that undue
interference with the duties of the custodian of the records may be prevented and that the right of
other persons entitled to inspect the records may be insured [Legaspi v. Civil Service
Commission, supra at p. 538, quoting Subido v. Ozaeta, 80 Phil. 383, 387.] The petition, as to the
second and third alternative acts sought to be done by petitioners, is meritorious.

However, the same cannot be said with regard to the first act sought by petitioners, i.e., "to furnish
petitioners the list of the names of the Batasang Pambansa members belonging to the UNIDO and
PDP-Laban who were able to secure clean loans immediately before the February 7 election thru
the intercession/marginal note of the then First Lady Imelda Marcos."

Although citizens are afforded the right to information and, pursuant thereto, are entitled to
"access to official records," the Constitution does not accord them a right to compel custodians of
official records to prepare lists, abstracts, summaries and the like in their desire to acquire
information on matters of public concern.
It must be stressed that it is essential for a writ of mandamus to issue that the applicant has a well-
defined, clear and certain legal right to the thing demanded and that it is the imperative duty of
defendant to perform the act required. The corresponding duty of the respondent to perform the
required act must be clear and specific [Lemi v. Valencia, G.R. No. L-20768, November
29,1968,126 SCRA 203; Ocampo v. Subido, G.R. No. L-28344, August 27, 1976, 72 SCRA 443.]
The request of the petitioners fails to meet this standard, there being no duty on the part of
respondent to prepare the list requested.

WHEREFORE, the instant petition is hereby granted and respondent General Manager of the
Government Service Insurance System is ORDERED to allow petitioners access to documents
and records evidencing loans granted to Members of the former Batasang Pambansa, as
petitioners may specify, subject to reasonable regulations as to the time and manner of inspection,
not incompatible with this decision, as the GSIS may deem necessary.

SO ORDERED.
G.R. No. 92024 November 9, 1990
CONGRESSMAN ENRIQUE T. GARCIA (Second District of Bataan), petitioner,
vs.
THE BOARD OF INVESTMENTS, THE DEPARTMENT OF TRADE AND INDUSTRY,
LUZON PETROCHEMICAL CORPORATION, and PILIPINAS SHELL CORPORATION,
respondents.
Abraham C. La Vina for petitioner.
Sycip, Salazar, Hernandez & Gatmaitan for Luzon Petrochemical Corporation.
Romulo, Mabanta, Buenaventura, Sayoc & De los Angeles for Pilipinas Shell Petroleum
Corporation.

GUTIERREZ, JR., J.:

This is a petition to annul and set aside the decision of the Board of Investments
(BOI)/Department of Trade and Industry (DTI) approving the transfer of the site of the proposed
petrochemical plant from Bataan to Batangas and the shift of feedstock for that plant from
naphtha only to naphtha and/or liquefied petroleum gas (LPG).
This petition is a sequel to the petition in G.R. No. 88637 entitled "Congressman Enrique T.
Garcia v. the Board of Investments", September 7, 1989, where this Court issued a decision,
ordering the BOI as follows:
WHEREFORE, the petition for certiorari is granted. The Board of Investments is ordered: (1) to
publish the amended application for registration of the Bataan Petrochemical Corporation, (2) to
allow the petitioner to have access to its records on the original and amended applications for
registration, as a petrochemical manufacturer, of the respondent Bataan Petrochemical
Corporation, excluding, however, privileged papers containing its trade secrets and other business
and financial information, and (3) to set for hearing the petitioner's opposition to the amended
application in order that he may present at such hearing all the evidence in his possession in
support of his opposition to the transfer of the site of the BPC petrochemical plant to Batangas
province. The hearing shall not exceed a period of ten (10) days from the date fixed by the BOI,
notice of which should be served by personal service to the petitioner through counsel, at least
three (3) days in advance. The hearings may be held from day to day for a period of ten (10) days
without postponements. The petition for a writ of prohibition or preliminary injunction is denied.
No costs. (Rollo, pages 450-451)
However, acting on the petitioner's motion for partial reconsideration asking that we rule on the
import of P.D. Nos. 949 and 1803 and on the foreign investor's claim of right of final choice of
plant site, in the light of the provisions of the Constitution and the Omnibus Investments Code of
1987, this Court on October 24, 1989, made the observation that P.D. Nos. 949 and 1803 "do not
provide that the Limay site should be the only petrochemical zone in the country, nor prohibit the
establishment of a petrochemical plant elsewhere in the country, that the establishment of a
petrochemical plant in Batangas does not violate P.D. No. 949 and P.D. No. 1803.
Our resolution skirted the issue of whether the investor given the initial inducements and other
circumstances surrounding its first choice of plant site may change it simply because it has the
final choice on the matter. The Court merely ruled that the petitioner appears to have lost interest
in the case by his failure to appear at the hearing that was set by the BOI after receipt of the
decision, so he may be deemed to have waived the fruit of the judgment. On this ground, the
motion for partial reconsideration was denied.
A motion for reconsideration of said resolution was filed by the petitioner asking that we resolve
the basic issue of whether or not the foreign investor has the right of final choice of plant site; that
the non-attendance of the petitioner at the hearing was because the decision was not yet final and
executory; and that the petitioner had not therefor waived the right to a hearing before the BOI.
In the Court's resolution dated January 17, 1990, we stated:
Does the investor have a "right of final choice" of plant site? Neither under the 1987 Constitution
nor in the Omnibus Investments Code is there such a 'right of final choice.' In the first place, the
investor's choice is subject to processing and approval or disapproval by the BOI (Art. 7, Chapter
II, Omnibus Investments Code). By submitting its application and amended application to the
BOI for approval, the investor recognizes the sovereign prerogative of our Government, through
the BOI, to approve or disapprove the same after determining whether its proposed project will be
feasible, desirable and beneficial to our country. By asking that his opposition to the LPC's
amended application be heard by the BOI, the petitioner likewise acknowledges that the BOI, not
the investor, has the last word or the "final choice" on the matter.
Secondly, as this case has shown, even a choice that had been approved by the BOI may not be
'final', for supervening circumstances and changes in the conditions of a place may dictate a
corresponding change in the choice of plant site in order that the project will not fail. After all, our
country will benefit only when a project succeeds, not when it fails. (Rollo, pp. 538-539)
Nevertheless, the motion for reconsideration of the petitioner was denied.
A minority composed of Justices Melencio-Herrera, Gancayco, Sarmiento and this ponente voted
to grant the motion for reconsideration stating that the hearing set by the BOI was premature as
the decision of the Court was not yet final and executory; that as contended by the petitioner the
Court must first rule on whether or not the investor has the right of final choice of plant site for if
the ruling is in the affirmative, the hearing would be a useless exercise; that in the October 19,
1989 resolution, the Court while upholding validity of the transfer of the plant site did not rule on
the issue of who has the final choice; that they agree with the observation of the majority that "the
investor has no final choice either under the 1987 Constitution or in the Omnibus Investments
Code and that it is the BOI who decides for the government" and that the plea of the petitioner
should be granted to give him the chance to show the justness of his claim and to enable the BOI
to give a second hard look at the matter.
Thus, the herein petition which relies on the ruling of the Court in the resolution of January 17,
1990 in G.R. No. 88637 that the investor has no right of final choice under the 1987 Constitution
and the Omnibus Investments Code.
Under P.D. No. 1803 dated January 16, 1981, 576 hectares of the public domain located in
Lamao, Limay, Bataan were reserved for the Petrochemical Industrial Zone under the
administration, management, and ownership of the Philippine National Oil Company (PNOC).
The Bataan Refining Corporation (BRC) is a wholly government owned corporation, located at
Bataan. It produces 60% of the national output of naphtha.
Taiwanese investors in a petrochemical project formed the Bataan Petrochemical Corporation
(BPC) and applied with BOI for registration as a new domestic producer of petrochemicals. Its
application specified Bataan as the plant site. One of the terms and conditions for registration of
the project was the use of "naphtha cracker" and "naphtha" as feedstock or fuel for its
petrochemical plant. The petrochemical plant was to be a joint venture with PNOC. BPC was
issued a certificate of registration on February 24, 1988 by BOI.
BPC was given pioneer status and accorded fiscal and other incentives by BOI, like: (1)
exemption from taxes on raw materials, (2) repatriation of the entire proceeds of liquidation
investments in currency originally made and at the exchange rate obtaining at the time of
repatriation; and (3) remittance of earnings on investments. As additional incentive, the House of
Representatives approved a bill introduced by the petitioner eliminating the 48% ad valorem tax
on naphtha if and when it is used as raw materials in the petrochemical plant. (G.R. No. 88637,
September 7, 1989, pp. 2-3. Rollo, pp. 441-442)
However, in February, 1989, A.T. Chong, chairman of USI Far East Corporation, the major
investor in BPC, personally delivered to Trade Secretary Jose Concepcion a letter dated January
25, 1989 advising him of BPC's desire to amend the original registration certification of its project
by changing the job site from Limay, Bataan, to Batangas. The reason adduced for the transfer
was the insurgency and unstable labor situation, and the presence in Batangas of a huge liquefied
petroleum gas (LPG) depot owned by the Philippine Shell Corporation.
The petitioner vigorously opposed the proposal and no less than President Aquino expressed her
preference that the plant be established in Bataan in a conference with the Taiwanese investors,
the Secretary of National Defense and The Chief of Staff of the Armed Forces.
Despite speeches in the Senate and House opposing the Transfer of the project to Batangas, BPC
filed on April 11, 1989 its request for approval of the amendments. Its application is as follows:
"(l) increasing the investment amount from US $220 million to US $320 million; (2) increasing
the production capacity of its naphtha cracker, polythylene plant and polypropylene plant; (3)
changing the feedstock from naphtha only to "naphtha and/or liquefied petroleum gas;" and (4)
transferring the job site from Limay, Bataan, to Batangas. (Annex B to Petition; Rollo, p. 25)
Notwithstanding opposition from any quarters and the request of the petitioner addressed to
Secretary Concepcion to be furnished a copy of the proposed amendment with its attachments
which was denied by the BOI on May 25, 1989, BOI approved the revision of the registration of
BPC's petrochemical project. (Petition, Annex F; Rollo, p. 32; See pp. 4 to 6, Decision in G.R.
No. 88637; supra.)
BOI Vice-Chairman Tomas I. Alcantara testifying before the Committee on Ways and Means of
the Senate asserted that:
The BOI has taken a public position preferring Bataan over Batangas as the site of the
petrochemical complex, as this would provide a better distribution of industries around the Metro
Manila area. ... In advocating the choice of Bataan as the project site for the petrochemical
complex, the BOI, however, made it clear, and I would like to repeat this that the BOI made it
clear in its view that the BOI or the government for that matter could only recomend as to where
the project should be located. The BOI recognizes and respect the principle that the final chouce
is still with the proponent who would in the final analysis provide the funding or risk capital for
the project. (Petition, P. 13; Annex D to the petition)
This position has not been denied by BOI in its pleadings in G.R. No. 88637 and in the present
petition.
Section 1, Article VIII of the 1987 Constitution provides:
SECTION 1. The judicial power shall be vested in one Supreme Court and in such lower courts as
may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government.
There is before us an actual controversy whether the petrochemical plant should remain in Bataan
or should be transferred to Batangas, and whether its feedstock originally of naphtha only should
be changed to naphtha and/or liquefied petroleum gas as the approved amended application of the
BPC, now Luzon Petrochemical Corporation (LPC), shows. And in the light of the categorical
admission of the BOI that it is the investor who has the final choice of the site and the decision on
the feedstock, whether or not it constitutes a grave abuse of discretion for the BOI to yield to the
wishes of the investor, national interest notwithstanding.
We rule that the Court has a constitutional duty to step into this controversy and determine the
paramount issue. We grant the petition.
First, Bataan was the original choice as the plant site of the BOI to which the BPC agreed. That is
why it organized itself into a corporation bearing the name Bataan. There is available 576 hectares
of public land precisely reserved as the petrochemical zone in Limay, Bataan under P.D. No.
1803. There is no need to buy expensive real estate for the site unlike in the proposed transfer to
Batangas. The site is the result of careful study long before any covetous interests intruded into
the choice. The site is ideal. It is not unduly constricted and allows for expansion. The
respondents have not shown nor reiterated that the alleged peace and order situation in Bataan or
unstable labor situation warrant a transfer of the plant site to Batangas. Certainly, these were taken
into account when the firm named itself Bataan Petrochemical Corporation. Moreover, the
evidence proves the contrary.
Second, the BRC, a government owned Filipino corporation, located in Bataan produces 60% of
the national output of naphtha which can be used as feedstock for the plant in Bataan. It can
provide the feedstock requirement of the plant. On the other hand, the country is short of LPG and
there is need to import the same for use of the plant in Batangas. The local production thereof by
Shell can hardly supply the needs of the consumers for cooking purposes. Scarce dollars will be
diverted, unnecessarily, from vitally essential projects in order to feed the furnaces of the
transferred petrochemical plant.
Third, naphtha as feedstock has been exempted by law from the ad valorem tax by the approval of
Republic Act No. 6767 by President Aquino but excluding LPG from exemption from ad valorem
tax. The law was enacted specifically for the petrochemical industry. The policy determination by
both Congress and the President is clear. Neither BOI nor a foreign investor should disregard or
contravene expressed policy by shifting the feedstock from naphtha to LPG.
Fourth, under Section 10, Article XII of the 1987 Constitution, it is the duty of the State to
"regulate and exercise authority over foreign investments within its national jurisdiction and in
accordance with its national goals and priorities." The development of a self-reliant and
independent national economy effectively controlled by Filipinos is mandated in Section 19,
Article II of the Constitution.
In Article 2 of the Omnibus Investments Code of 1987 "the sound development of the national
economy in consonance with the principles and objectives of economic nationalism" is the set
goal of government.
Fifth, with the admitted fact that the investor is raising the greater portion of the capital for the
project from local sources by way of loan which led to the so-called "petroscam scandal", the
capital requirements would be greatly minimized if LPC does not have to buy the land for the
project and its feedstock shall be limited to naphtha which is certainly more economical, more
readily available than LPG, and does not have to be imported.
Sixth, if the plant site is maintained in Bataan, the PNOC shall be a partner in the venture to the
great benefit and advantage of the government which shall have a participation in the
management of the project instead of a firm which is a huge multinational corporation.
In the light of all the clear advantages manifest in the plant's remaining in Bataan, practically
nothing is shown to justify the transfer to Batangas except a near-absolute discretion given by
BOI to investors not only to freely choose the site but to transfer it from their own first choice for
reasons which remain murky to say the least.
And this brings us to a prime consideration which the Court cannot rightly ignore.
Section 1, Article XII of the Constitution provides that:
xxx xxx xxx
The State shall promote industrialization and full employment based on sound agricultural
development and agrarian reform, through industries that make full and efficient use of human
and natural resources, and which are competitive in both domestic and foreign markets. However,
the State shall protect Filipino enterprises against unfair foreign competition and trade practices.
xxx xxx xxx
Every provision of the Constitution on the national economy and patrimony is infused with the
spirit of national interest. The non-alienation of natural resources, the State's full control over the
development and utilization of our scarce resources, agreements with foreigners being based on
real contributions to the economic growth and general welfare of the country and the regulation of
foreign investments in accordance with national goals and priorities are too explicit not to be
noticed and understood.
A petrochemical industry is not an ordinary investment opportunity. It should not be treated like a
garment or embroidery firm, a shoe-making venture, or even an assembler of cars or manufacturer
of computer chips, where the BOI reasoning may be accorded fuller faith and credit. The
petrochemical industry is essential to the national interest. In other ASEAN countries like
Indonesia and Malaysia, the government superintends the industry by controlling the upstream or
cracker facility.
In this particular BPC venture, not only has the Government given unprecedented favors, among
them:
(1) For an initial authorized capital of only P20 million, the Central Bank gave an eligible
relending credit or relending facility worth US $50 million and a debt to swap arrangement for
US $30 million or a total accommodation of US $80 million which at current exchange rates is
around P2080 million.
(2) A major part of the company's capitalization shall not come from foreign sources but from
loans, initially a Pl Billion syndicated loan, to be given by both government banks and a
consortium of Philippine private banks or in common parlance, a case of 'guiniguisa sa sariling
manteca.'
(3) Tax exemptions and privileges were given as part of its 'preferred pioneer status.'
(4) Loan applications of other Philippine firms will be crowded out of the Asian Development
Bank portfolio because of the petrochemical firm's massive loan request. (Taken from the
proceedings before the Senate Blue Ribbon Committee).
but through its regulatory agency, the BOI, it surrenders even the power to make a company abide
by its initial choice, a choice free from any suspicion of unscrupulous machinations and a choice
which is undoubtedly in the best interests of the Filipino people.
The Court, therefore, holds and finds that the BOI committed a grave abuse of discretion in
approving the transfer of the petrochemical plant from Bataan to Batangas and authorizing the
change of feedstock from naphtha only to naphtha and/or LPG for the main reason that the final
say is in the investor all other circumstances to the contrary notwithstanding. No cogent
advantage to the government has been shown by this transfer. This is a repudiation of the
independent policy of the government expressed in numerous laws and the Constitution to run its
own affairs the way it deems best for the national interest.
One can but remember the words of a great Filipino leader who in part said he would not mind
having a government run like hell by Filipinos than one subservient to foreign dictation. In this
case, it is not even a foreign government but an ordinary investor whom the BOI allows to dictate
what we shall do with our heritage.
WHEREFORE, the petition is hereby granted. The decision of the respondent Board of
Investments approving the amendment of the certificate of registration of the Luzon
Petrochemical Corporation on May 23, 1989 under its Resolution No. 193, Series of 1989,
(Annex F to the Petition) is SET ASIDE as NULL and VOID. The original certificate of
registration of BPC' (now LPC) of February 24, 1988 with Bataan as the plant site and naphtha as
the feedstock is, therefore, ordered maintained.
SO ORDERED.
G.R. No. L-56350 April 2, 1981

SAMUEL C. OCCENA, petitioner,

vs.
THE COMMISSION ON ELECTIONS, THE COMMISSION ON AUDIT, THE NATIONAL
TREASURER, THE DIRECTOR OF PRINTING, respondents.

G.R. No. L-56404 April 2, 1981

RAMON A. GONZALES, MANUEL B. IMBONG, JO AUREA MARCOS-IMBONG, RAY

ALLAN T. DRILON, NELSON B. MALANA and GIL M. TABIOS, petitioners,
vs.
THE NATIONAL TREASURER and the COMMISSION ON ELECTIONS, respondents.

FERNANDO, C.J.:

The challenge in these two prohibition proceedings against the validity of three Batasang
Pambansa Resolutions 1 proposing constitutional amendments, goes further than merely assailing
their alleged constitutional infirmity. Petitioners Samuel Occena and Ramon A. Gonzales, both
members of the Philippine Bar and former delegates to the 1971 Constitutional Convention that
framed the present Constitution, are suing as taxpayers. The rather unorthodox aspect of these
petitions is the assertion that the 1973 Constitution is not the fundamental law, the Javellana 2
ruling to the contrary notwithstanding. To put it at its mildest, such an approach has the arresting
charm of novelty – but nothing else. It is in fact self defeating, for if such were indeed the case,
petitioners have come to the wrong forum. We sit as a Court duty-bound to uphold and apply that
Constitution. To contend otherwise as was done here would be, quite clearly, an exercise in
futility. Nor are the arguments of petitioners cast in the traditional form of constitutional litigation
any more persuasive. For reasons to be set forth, we dismiss the petitions.

The suits for prohibition were filed respectively on March 6 3 and March 12, 1981. 4 On March
10 and 13 respectively, respondents were required to answer each within ten days from notice. 5
There was a comment on the part of the respondents. Thereafter, both cases were set for hearing
and were duly argued on March 26 by petitioners and Solicitor General Estelito P. Mendoza for
respondents. With the submission of pertinent data in amplification of the oral argument, the cases
were deemed submitted for decision.

It is the ruling of the Court, as set forth at the outset, that the petitions must be dismissed.
1. It is much too late in the day to deny the force and applicability of the 1973 Constitution.
In the dispositive portion of Javellana v. The Executive Secretary, 6 dismissing petitions for
prohibition and mandamus to declare invalid its ratification, this Court stated that it did so by a
vote of six 7 to four. 8 It then concluded: "This being the vote of the majority, there is no further
judicial obstacle to the new Constitution being considered in force and effect." 9 Such a statement
served a useful purpose. It could even be said that there was a need for it. It served to clear the
atmosphere. It made manifest that, as of January 17, 1973, the present Constitution came into
force and effect. With such a pronouncement by the Supreme Court and with the recognition of
the cardinal postulate that what the Supreme Court says is not only entitled to respect but must
also be obeyed, a factor for instability was removed. Thereafter, as a matter of law, all doubts
were resolved. The 1973 Constitution is the fundamental law. It is as simple as that. What cannot
be too strongly stressed is that the function of judicial review has both a positive and a negative
aspect. As was so convincingly demonstrated by Professors Black 10 and Murphy, 11 the
Supreme Court can check as well as legitimate. In declaring what the law is, it may not only
nullify the acts of coordinate branches but may also sustain their validity. In the latter case, there
is an affirmation that what was done cannot be stigmatized as constitutionally deficient. The mere
dismissal of a suit of this character suffices. That is the meaning of the concluding statement in
Javellana. Since then, this Court has invariably applied the present Constitution. The latest case in
point is People v. Sola, 12 promulgated barely two weeks ago. During the first year alone of the
effectivity of the present Constitution, at least ten cases may be cited. 13

2. We come to the crucial issue, the power of the Interim Batasang Pambansa to propose
amendments and how it may be exercised. More specifically as to the latter, the extent of the
changes that may be introduced, the number of votes necessary for the validity of a proposal, and
the standard required for a proper submission. As was stated earlier, petitioners were unable to
demonstrate that the challenged resolutions are tainted by unconstitutionality.

(1) The existence of the power of the Interim Batasang Pambansa is indubitable. The
applicable provision in the 1976 Amendments is quite explicit. Insofar as pertinent it reads thus:
"The Interim Batasang Pambansa shall have the same powers and its Members shall have the
same functions, responsibilities, rights, privileges, and disqualifications as the interim National
Assembly and the regular National Assembly and the Members thereof." 14 One of such powers
is precisely that of proposing amendments. The 1973 Constitution in its Transitory Provisions
vested the Interim National Assembly with the power to propose amendments upon special call by
the Prime Minister by a vote of the majority of its members to be ratified in accordance with the
Article on Amendments. 15 When, therefore, the Interim Batasang Pambansa, upon the call of the
President and Prime Minister Ferdinand E. Marcos, met as a constituent body it acted by virtue Of
such impotence Its authority to do so is clearly beyond doubt. It could and did propose the
amendments embodied in the resolutions now being assailed. It may be observed parenthetically
that as far as petitioner Occena is Concerned, the question of the authority of the Interim Batasang
Pambansa to propose amendments is not new. In Occena v. Commission on Elections, 16 filed by
the same petitioner, decided on January 28, 1980, such a question was involved although not
directly passed upon. To quote from the opinion of the Court penned by Justice Antonio in that
case: "Considering that the proposed amendment of Section 7 of Article X of the Constitution
extending the retirement of members of the Supreme Court and judges of inferior courts from
sixty-five (65) to seventy (70) years is but a restoration of the age of retirement provided in the
1935 Constitution and has been intensively and extensively discussed at the Interim Batasang
Pambansa, as well as through the mass media, it cannot, therefore, be said that our people are
unaware of the advantages and disadvantages of the proposed amendment." 17

(2) Petitioners would urge upon us the proposition that the amendments proposed are so
extensive in character that they go far beyond the limits of the authority conferred on the Interim
Batasang Pambansa as Successor of the Interim National Assembly. For them, what was done was
to revise and not to amend. It suffices to quote from the opinion of Justice Makasiar, speaking for
the Court, in Del Rosario v. Commission on Elections 18 to dispose of this contention. Thus: "3.
And whether the Constitutional Convention will only propose amendments to the Constitution or
entirely overhaul the present Constitution and propose an entirely new Constitution based on an
Ideology foreign to the democratic system, is of no moment; because the same will be submitted
to the people for ratification. Once ratified by the sovereign people, there can be no debate about
the validity of the new Constitution. 4. The fact that the present Constitution may be revised and
replaced with a new one ... is no argument against the validity of the law because 'amendment'
includes the 'revision' or total overhaul of the entire Constitution. At any rate, whether the
Constitution is merely amended in part or revised or totally changed would become immaterial
the moment the same is ratified by the sovereign people." 19 There is here the adoption of the
principle so well-known in American decisions as well as legal texts that a constituent body can
propose anything but conclude nothing. 20 We are not disposed to deviate from such a principle
not only sound in theory but also advantageous in practice.

(3) That leaves only the questions of the vote necessary to propose amendments as well as the
standard for proper submission. Again, petitioners have not made out a case that calls for a
judgment in their favor. The language of the Constitution supplies the answer to the above
questions. The Interim Batasang Pambansa, sitting as a constituent body, can propose
amendments. In that capacity, only a majority vote is needed. It would be an indefensible
proposition to assert that the three-fourth votes required when it sits as a legislative body applies
as well when it has been convened as the agency through which amendments could be proposed.
That is not a requirement as far as a constitutional convention is concerned. It is not a requirement
either when, as in this case, the Interim Batasang Pambansa exercises its constituent power to
propose amendments. Moreover, even on the assumption that the requirement of three- fourth
votes applies, such extraordinary majority was obtained. It is not disputed that Resolution No. 1
proposing an amendment allowing a natural-born citizen of the Philippines naturalized in a
foreign country to own a limited area of land for residential purposes was approved by the vote of
122 to 5; Resolution No. 2 dealing with the Presidency, the Prime Minister and the Cabinet, and
the National Assembly by a vote of 147 to 5 with 1 abstention; and Resolution No. 3 on the
amendment to the Article on the Commission on Elections by a vote of 148 to 2 with 1 abstention.
Where then is the alleged infirmity? As to the requisite standard for a proper submission, the
question may be viewed not only from the standpoint of the period that must elapse before the
holding of the plebiscite but also from the standpoint of such amendments having been called to
the attention of the people so that it could not plausibly be maintained that they were properly
informed as to the proposed changes. As to the period, the Constitution indicates the way the
matter should be resolved. There is no ambiguity to the applicable provision: "Any amendment to,
or revision of, this Constitution shall be valid when ratified by a majority of the votes cast in a
plebiscite which shall be held not later than three months after the approval of such amendment or
revision." 21 The three resolutions were approved by the Interim Batasang Pambansa sitting as a
constituent assembly on February 5 and 27, 1981. In the Batasang Pambansa Blg. 22, the date of
the plebiscite is set for April 7, 1981. It is thus within the 90-day period provided by the
Constitution. Thus any argument to the contrary is unavailing. As for the people being adequately
informed, it cannot be denied that this time, as in the cited 1980 Occena opinion of Justice
Antonio, where the amendment restored to seventy the retirement age of members of the
judiciary, the proposed amendments have "been intensively and extensively discussed at the
Interim Batasang Pambansa, as well as through the mass media, [ so that ] it cannot, therefore, be
said that our people are unaware of the advantages and disadvantages of the proposed amendment
[ s ]." 22

WHEREFORE, the petitions are dismissed for lack of merit. No costs.

G.R. No. L-34915 June 24, 1983

CITY GOVERNMENT OF QUEZON CITY and CITY COUNCIL OF QUEZON CITY,

petitioners,
vs.
HON. JUDGE VICENTE G. ERICTA as Judge of the Court of First Instance of Rizal, Quezon
City, Branch XVIII; HIMLAYANG PILIPINO, INC., respondents.

City Fiscal for petitioners.

Manuel Villaruel, Jr. and Feliciano Tumale for respondents.

GUTIERREZ, JR., J.:

This is a petition for review which seeks the reversal of the decision of the Court of First Instance
of Rizal, Branch XVIII declaring Section 9 of Ordinance No. 6118, S-64, of the Quezon City
Council null and void.

Section 9 of Ordinance No. 6118, S-64, entitled "ORDINANCE REGULATING THE

ESTABLISHMENT, MAINTENANCE AND OPERATION OF PRIVATE MEMORIAL TYPE
CEMETERY OR BURIAL GROUND WITHIN THE JURISDICTION OF QUEZON CITY AND
PROVIDING PENALTIES FOR THE VIOLATION THEREOF" provides:

Sec. 9. At least six (6) percent of the total area of the memorial park cemetery shall be set aside
for charity burial of deceased persons who are paupers and have been residents of Quezon City
for at least 5 years prior to their death, to be determined by competent City Authorities. The area
so designated shall immediately be developed and should be open for operation not later than six
months from the date of approval of the application.

For several years, the aforequoted section of the Ordinance was not enforced by city authorities
but seven years after the enactment of the ordinance, the Quezon City Council passed the
following resolution:

RESOLVED by the council of Quezon assembled, to request, as it does hereby request the City
Engineer, Quezon City, to stop any further selling and/or transaction of memorial park lots in
Quezon City where the owners thereof have failed to donate the required 6% space intended for
paupers burial.
Pursuant to this petition, the Quezon City Engineer notified respondent Himlayang Pilipino, Inc.
in writing that Section 9 of Ordinance No. 6118, S-64 would be enforced

Respondent Himlayang Pilipino reacted by filing with the Court of First Instance of Rizal Branch
XVIII at Quezon City, a petition for declaratory relief, prohibition and mandamus with
preliminary injunction (Sp. Proc. No. Q-16002) seeking to annul Section 9 of the Ordinance in
question The respondent alleged that the same is contrary to the Constitution, the Quezon City
Charter, the Local Autonomy Act, and the Revised Administrative Code.

There being no issue of fact and the questions raised being purely legal both petitioners and
respondent agreed to the rendition of a judgment on the pleadings. The respondent court,
therefore, rendered the decision declaring Section 9 of Ordinance No. 6118, S-64 null and void.

A motion for reconsideration having been denied, the City Government and City Council filed the
instant petition.

Petitioners argue that the taking of the respondent's property is a valid and reasonable exercise of
police power and that the land is taken for a public use as it is intended for the burial ground of
paupers. They further argue that the Quezon City Council is authorized under its charter, in the
exercise of local police power, " to make such further ordinances and resolutions not repugnant to
law as may be necessary to carry into effect and discharge the powers and duties conferred by this
Act and such as it shall deem necessary and proper to provide for the health and safety, promote
the prosperity, improve the morals, peace, good order, comfort and convenience of the city and
the inhabitants thereof, and for the protection of property therein."

On the other hand, respondent Himlayang Pilipino, Inc. contends that the taking or confiscation of
property is obvious because the questioned ordinance permanently restricts the use of the property
such that it cannot be used for any reasonable purpose and deprives the owner of all beneficial use
of his property.

The respondent also stresses that the general welfare clause is not available as a source of power
for the taking of the property in this case because it refers to "the power of promoting the public
welfare by restraining and regulating the use of liberty and property." The respondent points out
that if an owner is deprived of his property outright under the State's police power, the property is
generally not taken for public use but is urgently and summarily destroyed in order to promote the
general welfare. The respondent cites the case of a nuisance per se or the destruction of a house to
prevent the spread of a conflagration.

We find the stand of the private respondent as well as the decision of the respondent Judge to be
well-founded. We quote with approval the lower court's ruling which declared null and void
Section 9 of the questioned city ordinance:
The issue is: Is Section 9 of the ordinance in question a valid exercise of the police power?

An examination of the Charter of Quezon City (Rep. Act No. 537), does not reveal any provision
that would justify the ordinance in question except the provision granting police power to the
City. Section 9 cannot be justified under the power granted to Quezon City to tax, fix the license
fee, and regulate such other business, trades, and occupation as may be established or practised in
the City.' (Subsections 'C', Sec. 12, R.A. 537).

The power to regulate does not include the power to prohibit (People vs. Esguerra, 81 PhiL 33,
Vega vs. Municipal Board of Iloilo, L-6765, May 12, 1954; 39 N.J. Law, 70, Mich. 396). A
fortiori, the power to regulate does not include the power to confiscate. The ordinance in question
not only confiscates but also prohibits the operation of a memorial park cemetery, because under
Section 13 of said ordinance, 'Violation of the provision thereof is punishable with a fine and/or
imprisonment and that upon conviction thereof the permit to operate and maintain a private
cemetery shall be revoked or cancelled.' The confiscatory clause and the penal provision in effect
deter one from operating a memorial park cemetery. Neither can the ordinance in question be
justified under sub- section "t", Section 12 of Republic Act 537 which authorizes the City Council
to-

'prohibit the burial of the dead within the center of population of the city and provide for their
burial in such proper place and in such manner as the council may determine, subject to the
provisions of the general law regulating burial grounds and cemeteries and governing funerals and
disposal of the dead.' (Sub-sec. (t), Sec. 12, Rep. Act No. 537).

There is nothing in the above provision which authorizes confiscation or as euphemistically

termed by the respondents, 'donation'

We now come to the question whether or not Section 9 of the ordinance in question is a valid
exercise of police power. The police power of Quezon City is defined in sub-section 00, Sec. 12,
Rep. Act 537 which reads as follows:

(00) To make such further ordinance and regulations not repugnant to law as may be necessary to
carry into effect and discharge the powers and duties conferred by this act and such as it shall
deem necessary and proper to provide for the health and safety, promote, the prosperity, improve
the morals, peace, good order, comfort and convenience of the city and the inhabitants thereof,
and for the protection of property therein; and enforce obedience thereto with such lawful fines or
penalties as the City Council may prescribe under the provisions of subsection (jj) of this section.
We start the discussion with a restatement of certain basic principles. Occupying the forefront in
the bill of rights is the provision which states that 'no person shall be deprived of life, liberty or
property without due process of law' (Art. Ill, Section 1 subparagraph 1, Constitution).

On the other hand, there are three inherent powers of government by which the state interferes
with the property rights, namely-. (1) police power, (2) eminent domain, (3) taxation. These are
said to exist independently of the Constitution as necessary attributes of sovereignty.

Police power is defined by Freund as 'the power of promoting the public welfare by restraining
and regulating the use of liberty and property' (Quoted in Political Law by Tanada and Carreon,
V-11, p. 50). It is usually exerted in order to merely regulate the use and enjoyment of property of
the owner. If he is deprived of his property outright, it is not taken for public use but rather to
destroy in order to promote the general welfare. In police power, the owner does not recover from
the government for injury sustained in consequence thereof (12 C.J. 623). It has been said that
police power is the most essential of government powers, at times the most insistent, and always
one of the least limitable of the powers of government (Ruby vs. Provincial Board, 39 PhiL 660;
Ichong vs. Hernandez, 1,7995, May 31, 1957). This power embraces the whole system of public
regulation (U.S. vs. Linsuya Fan, 10 PhiL 104). The Supreme Court has said that police power is
so far-reaching in scope that it has almost become impossible to limit its sweep. As it derives its
existence from the very existence of the state itself, it does not need to be expressed or defined in
its scope. Being coextensive with self-preservation and survival itself, it is the most positive and
active of all governmental processes, the most essential insistent and illimitable Especially it is so
under the modern democratic framework where the demands of society and nations have
multiplied to almost unimaginable proportions. The field and scope of police power have become
almost boundless, just as the fields of public interest and public welfare have become almost all
embracing and have transcended human foresight. Since the Courts cannot foresee the needs and
demands of public interest and welfare, they cannot delimit beforehand the extent or scope of the
police power by which and through which the state seeks to attain or achieve public interest and
welfare. (Ichong vs. Hernandez, L-7995, May 31, 1957).

The police power being the most active power of the government and the due process clause
being the broadest station on governmental power, the conflict between this power of government
and the due process clause of the Constitution is oftentimes inevitable.

It will be seen from the foregoing authorities that police power is usually exercised in the form of
mere regulation or restriction in the use of liberty or property for the promotion of the general
welfare. It does not involve the taking or confiscation of property with the exception of a few
cases where there is a necessity to confiscate private property in order to destroy it for the purpose
of protecting the peace and order and of promoting the general welfare as for instance, the
confiscation of an illegally possessed article, such as opium and firearms.
It seems to the court that Section 9 of Ordinance No. 6118, Series of 1964 of Quezon City is not a
mere police regulation but an outright confiscation. It deprives a person of his private property
without due process of law, nay, even without compensation.

In sustaining the decision of the respondent court, we are not unmindful of the heavy burden
shouldered by whoever challenges the validity of duly enacted legislation whether national or
local As early as 1913, this Court ruled in Case v. Board of Health (24 PhiL 250) that the courts
resolve every presumption in favor of validity and, more so, where the ma corporation asserts that
the ordinance was enacted to promote the common good and general welfare.

In the leading case of Ermita-Malate Hotel and Motel Operators Association Inc. v. City Mayor of
Manila (20 SCRA 849) the Court speaking through the then Associate Justice and now Chief
Justice Enrique M. Fernando stated

Primarily what calls for a reversal of such a decision is the a of any evidence to offset the
presumption of validity that attaches to a statute or ordinance. As was expressed categorically by
Justice Malcolm 'The presumption is all in favor of validity. ... The action of the elected
representatives of the people cannot be lightly set aside. The councilors must, in the very nature of
things, be familiar with the necessities of their particular ... municipality and with all the facts and
lances which surround the subject and necessitate action. The local legislative body, by enacting
the ordinance, has in effect given notice that the regulations are essential to the well-being of the
people. ... The Judiciary should not lightly set aside legislative action when there is not a clear
invasion of personal or property rights under the guise of police regulation. (U.S. v. Salaveria
(1918], 39 Phil. 102, at p. 111. There was an affirmation of the presumption of validity of
municipal ordinance as announced in the leading Salaveria decision in Ebona v. Daet, [1950]85
Phil. 369.)

We have likewise considered the principles earlier stated in Case v. Board of Health supra :

... Under the provisions of municipal charters which are known as the general welfare clauses, a
city, by virtue of its police power, may adopt ordinances to the peace, safety, health, morals and
the best and highest interests of the municipality. It is a well-settled principle, growing out of the
nature of well-ordered and society, that every holder of property, however absolute and may be
his title, holds it under the implied liability that his use of it shall not be injurious to the equal
enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the
rights of the community. An property in the state is held subject to its general regulations, which
are necessary to the common good and general welfare. Rights of property, like all other social
and conventional rights, are subject to such reasonable limitations in their enjoyment as shall
prevent them from being injurious, and to such reasonable restraints and regulations, established
by law, as the legislature, under the governing and controlling power vested in them by the
constitution, may think necessary and expedient. The state, under the police power, is possessed
with plenary power to deal with all matters relating to the general health, morals, and safety of the
people, so long as it does not contravene any positive inhibition of the organic law and providing
that such power is not exercised in such a manner as to justify the interference of the courts to
prevent positive wrong and oppression.

but find them not applicable to the facts of this case.

There is no reasonable relation between the setting aside of at least six (6) percent of the total area
of an private cemeteries for charity burial grounds of deceased paupers and the promotion of
health, morals, good order, safety, or the general welfare of the people. The ordinance is actually a
taking without compensation of a certain area from a private cemetery to benefit paupers who are
charges of the municipal corporation. Instead of building or maintaining a public cemetery for this
purpose, the city passes the burden to private cemeteries.

The expropriation without compensation of a portion of private cemeteries is not covered by

Section 12(t) of Republic Act 537, the Revised Charter of Quezon City which empowers the city
council to prohibit the burial of the dead within the center of population of the city and to provide
for their burial in a proper place subject to the provisions of general law regulating burial grounds
and cemeteries. When the Local Government Code, Batas Pambansa Blg. 337 provides in Section
177 (q) that a Sangguniang panlungsod may "provide for the burial of the dead in such place and
in such manner as prescribed by law or ordinance" it simply authorizes the city to provide its own
city owned land or to buy or expropriate private properties to construct public cemeteries. This
has been the law and practise in the past. It continues to the present. Expropriation, however,
requires payment of just compensation. The questioned ordinance is different from laws and
regulations requiring owners of subdivisions to set aside certain areas for streets, parks,
playgrounds, and other public facilities from the land they sell to buyers of subdivision lots. The
necessities of public safety, health, and convenience are very clear from said requirements which
are intended to insure the development of communities with salubrious and wholesome
environments. The beneficiaries of the regulation, in turn, are made to pay by the subdivision
developer when individual lots are sold to home-owners.

As a matter of fact, the petitioners rely solely on the general welfare clause or on implied powers
of the municipal corporation, not on any express provision of law as statutory basis of their
exercise of power. The clause has always received broad and liberal interpretation but we cannot
stretch it to cover this particular taking. Moreover, the questioned ordinance was passed after
Himlayang Pilipino, Inc. had incorporated. received necessary licenses and permits and
commenced operating. The sequestration of six percent of the cemetery cannot even be
considered as having been impliedly acknowledged by the private respondent when it accepted
the permits to commence operations.
WHEREFORE, the petition for review is hereby DISMISSED. The decision of the respondent
court is affirmed.

SO ORDERED.
G.R. No. 106440 January 29, 1996

ALEJANDRO MANOSCA, ASUNCION MANOSCA and LEONICA MANOSCA, petitioners,

vs.
HON. COURT OF APPEALS, HON. BENJAMIN V. PELAYO, Presiding Judge, RTC-Pasig,
Metro Manila, Branch 168, HON. GRADUACION A. REYES CLARAVAL, Presiding Judge,
RTC-Pasig, Metro Manila, Branch 71, and REPUBLIC OF THE PHILIPPINES, respondents.

DECISION

VITUG, J.:

In this appeal, via a petition for review on certiorari, from the decision1 of the Court of Appeals,
dated 15 January 1992, in CA-G.R. SP No. 24969 (entitled "Alejandro Manosca, et al. v. Hon.
Benjamin V. Pelayo, et al."), this Court is asked to resolve whether or not the "public use"
requirement of Eminent Domain is extant in the attempted expropriation by the Republic of a
492-square-meter parcel of land so declared by the National Historical Institute ("NHI") as a
national historical landmark.

The facts of the case are not in dispute.

Petitioners inherited a piece of land located at P. Burgos Street, Calzada, Taguig. Metro Manila,
with an area of about four hundred ninety-two (492) square meters. When the parcel was
ascertained by the NHI to have been the birthsite of Felix Y. Manalo, the founder of Iglesia Ni
Cristo, it passed Resolution No. 1, Series of 1986, pursuant to Section 42 of Presidential Decree
No. 260, declaring the land to be a national historical landmark. The resolution was, on 06
January 1986, approved by the Minister of Education, Culture and Sports. Later, the opinion of
the Secretary of Justice was asked on the legality of the measure. In his Opinion No. 133, Series
of 1987, the Secretary of Justice replied in the affirmative; he explained:

According to your guidelines, national landmarks are places or objects that are associated with an
event, achievement, characteristic, or modification that makes a turning point or stage in
Philippine history. Thus, the birthsite of the founder of the Iglesia ni Cristo, the late Felix Y.
Manalo, who, admittedly, had made contributions to Philippine history and culture has been
declared as a national landmark. It has been held that places invested with unusual historical
interest is a public use for which the power of eminent domain may be authorized . . . .

In view thereof, it is believed that the National Historical Institute as an agency of the
Government charged with the maintenance and care of national shrines, monuments and
landmarks and the development of historical sites that may be declared as national shrines,
monuments and/or landmarks, may initiate the institution of condemnation proceedings for the
purpose of acquiring the lot in question in accordance with the procedure provided for in Rule 67
of the Revised Rules of Court. The proceedings should be instituted by the Office of the Solicitor
General in behalf of the Republic.

Accordingly, on 29 May 1989, the Republic, through the Office of the Solicitor-General,
instituted a complaint for expropriation3 before the Regional Trial Court of Pasig for and in
behalf of the NHI alleging, inter alia, that:

Pursuant to Section 4 of Presidential Decree No. 260, the National Historical Institute issued
Resolution No. 1, Series of 1986, which was approved on January, 1986 by the then Minister of
Education, Culture and Sports, declaring the above described parcel of land which is the birthsite
of Felix Y. Manalo, founder of the "Iglesia ni Cristo," as a National Historical Landrnark. The
plaintiff perforce needs the land as such national historical landmark which is a public purpose.

At the same time, respondent Republic filed an urgent motion for the issuance of an order to
permit it to take immediate possession of the property. The motion was opposed by petitioners.
After a hearing, the trial court issued, on 03 August 1989,4 an order fixing the provisional market
(P54,120.00) and assessed (P16,236.00) values of the property and authorizing the Republic to
take over the property once the required sum would have been deposited with the Municipal
Treasurer of Taguig, Metro Manila.

Petitioners moved to dismiss the complaint on the main thesis that the intended expropriation was
not for a public purpose and, incidentally, that the act would constitute an application of public
funds, directly or indirectly, for the use, benefit, or support of Iglesia ni Cristo, a religious entity,
contrary to the provision of Section 29(2), Article VI, of the 1987 Constitution.5 Petitioners
sought, in the meanwhile, a suspension in the implementation of the 03rd August 1989 order of
the trial court.

On 15 February 1990, following the filing by respondent Republic of its reply to petitioners'
motion seeking the dismissal of the case, the trial court issued its denial of said motion to
dismiss.6 Five (5) days later, or on 20 February 1990,7 another order was issued by the trial court,
declaring moot and academic the motion for reconsideration and/or suspension of the order of 03
August 1989 with the rejection of petitioners' motion to dismiss. Petitioners' motion for the
reconsideration of the 20th February 1990 order was likewise denied by the trial court in its 16th
April 1991 order.8

Petitioners then lodged a petition for certiorari and prohibition with the Court of Appeals. In its
now disputed 15th January 1992 decision, the appellate court dismissed the petition on the ground
that the remedy of appeal in the ordinary course of law was an adequate remedy and that the
petition itself, in any case, had failed to show any grave abuse of discretion or lack of
jurisdictional competence on the part of the trial court. A motion for the reconsideration of the
decision was denied in the 23rd July 1992 resolution of the appellate court.

We begin, in this present recourse of petitioners, with a few known postulates.

Eminent domain, also often referred to as expropriation and, with less frequency, as
condemnation, is, like police power and taxation, an inherent power of sovereignty. It need not be
clothed with any constitutional gear to exist; instead, provisions in our Constitution on the subject
are meant more to regulate, rather than to grant, the exercise of the power. Eminent domain is
generally so described as "the highest and most exact idea of property remaining in the
government" that may be acquired for some public purpose through a method in the nature of a
forced purchase by the State.9 It is a right to take or reassert dominion over property within the
state for public use or to meet a public exigency. It is said to be an essential part of governance
even in its most primitive form and thus inseparable from sovereignty. 10 The only direct
constitutional qualification is that "private property shall not be taken for public use without just
compensation." 11 This proscription is intended to provide a safeguard against possible abuse and
so to protect as well the individual against whose property the power is sought to be enforced.

Petitioners assert that the expropriation has failed to meet the guidelines set by this Court in the
case of Guido v. Rural Progress Administration, 12 to wit: (a) the size of the land expropriated;
(b) the large number of people benefited; and, (c) the extent of social and economic reform.13
Petitioners suggest that we confine the concept of expropriation only to the following public uses,
14 i.e., the —

. . . taking of property for military posts, roads, streets, sidewalks, bridges, ferries, levees,
wharves, piers, public buildings including schoolhouses, parks, playgrounds, plazas, market
places, artesian wells, water supply and sewerage systems, cemeteries, crematories, and railroads.

This view of petitioners is much too limitative and restrictive.

The court, in Guido, merely passed upon the issue of the extent of the President's power under
Commonwealth Act No. 539 to, specifically, acquire private lands for subdivision into smaller
home lots or farms for resale to bona fide tenants or occupants. It was in this particular context of
the statute that the Court had made the pronouncement. The guidelines in Guido were not meant
to be preclusive in nature and, most certainly, the power of eminent domain should not now be
understood as being confined only to the expropriation of vast tracts of land and landed estates. 15

The term "public use," not having been otherwise defined by the constitution, must be considered
in its general concept of meeting a public need or a public exigency. 16 Black summarizes the
characterization given by various courts to the term; thus:
Public Use. Eminent domain. The constitutional and statutory basis for taking property by
eminent domain. For condemnation purposes, "public use" is one which confers same benefit or
advantage to the public; it is not confined to actual use by public. It is measured in terms of right
of public to use proposed facilities for which condemnation is sought and, as long as public has
right of use, whether exercised by one or many members of public, a "public advantage" or
"public benefit" accrues sufficient to constitute a public use. Montana Power Co. vs. Bokma,
Mont. 457 P. 2d 769, 772, 773.

Public use, in constitutional provisions restricting the exercise of the right to take private property
in virtue of eminent domain, means a use concerning the whole community as distinguished from
particular individuals. But each and every member of society need not be equally interested in
such use, or be personally and directly affected by it; if the object is to satisfy a great public want
or exigency, that is sufficient. Rindge Co. vs. Los Angeles County, 262 U.S. 700, 43 S.Ct. 689,
692, 67 L.Ed. 1186. The term may be said to mean public usefulness, utility, or advantage, or
what is productive of general benefit. It may be limited to the inhabitants of a small or restricted
locality, but must be in common, and not for a particular individual. The use must be a needful
one for the public, which cannot be surrendered without obvious general loss and inconvenience.
A "public use" for which land may be taken defies absolute definition for it changes with varying
conditions of society, new appliances in the sciences, changing conceptions of scope and
functions of government, and other differing circumstances brought about by an increase in
population and new modes of communication and transportation. Katz v. Brandon, 156 Conn.,
521, 245 A.2d 579,586. 17

The validity of the exercise of the power of eminent domain for traditional purposes is beyond
question; it is not at all to be said, however, that public use should thereby be restricted to such
traditional uses. The idea that "public use" is strictly limited to clear cases of "use by the public"
has long been discarded. This Court in Heirs of Juancho Ardona v. Reyes,18 quoting from
Berman v. Parker (348 U.S. 25; 99 L. ed. 27), held:

We do not sit to determine whether a particular housing project is or is not desirable. The concept
of the public welfare is broad and inclusive. See DayBrite Lighting, Inc. v. Missouri, 342 US 421,
424, 96 L. Ed. 469, 472, 72 S Ct 405. The values it represents are spiritual as well as physical,
aesthetic as well as monetary. It is within the power of the legislature to determine that the
community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well
as carefully patrolled. In the present case, the Congress and its authorized agencies have made
determinations that take into account a wide variety of values. It is no for us to reappraise them. If
those who govern the District of Columbia decide that the Nation's Capital should be beautiful as
well as sanitary, there is nothing in the Fifth Amendment that stands in the way.

Once the object is within the authority of Congress, the right to realize it through the exercise of
eminent domain is clear. For the power of eminent domain is merely the means to the end. See
Luxton v. North River Bridge Co. 153 US 525, 529, 530, 38 L. ed. 808, 810, 14 S Ct 891; United
States v. Gettysburg Electric R. Co. 160 US 668, 679, 40 L. ed. 576, 580, 16 S Ct 427.

It has been explained as early as Seña v. Manila Railroad Co., 19 that:

. . . A historical research discloses the meaning of the term "public use" to be one of constant
growth. As society advances, its demands upon the individual increase and each demand is a new
use to which the resources of the individual may be devoted. . . . for "whatever is beneficially
employed for the community is a public use.

Chief Justice Enrique M. Fernando states:

The taking to be valid must be for public use. There was a time when it was felt that a literal
meaning should be attached to such a requirement. Whatever project is undertaken must be for the
public to enjoy, as in the case of streets or parks. Otherwise, expropriation is not allowable. It is
not so any more. As long as the purpose of the taking is public, then the power of eminent domain
comes into play. As just noted, the constitution in at least two cases, to remove any doubt,
determines what is public use. One is the expropriation of lands to be subdivided into small lots
for resale at cost to individuals. The other is the transfer, through the exercise of this power, of
utilities and other private enterprise to the government. It is accurate to state then that at present
whatever may be beneficially employed for the general welfare satisfies the requirement of public
use. 20

Chief Justice Fernando, writing the ponencia in J.M. Tuason & Co. vs. Land Tenure
Administration, 21 has viewed the Constitution a dynamic instrument and one that "is not to be
construed narrowly or pedantically" so as to enable it "to meet adequately whatever problems the
future has in store." Fr. Joaquin Bernas, a noted constitutionalist himself, has aptly observed that
what, in fact, has ultimately emerged is a concept of public use which is just as broad as "public
welfare." 22

Petitioners ask: But "(w)hat is the so-called unusual interest that the expropriation of (Felix
Manalo's) birthplace become so vital as to be a public use appropriate for the exercise of the
power of eminent domain" when only members of the Iglesia ni Cristo would benefit? This
attempt to give some religious perspective to the case deserves little consideration, for what
should be significant is the principal objective of, not the casual consequences that might follow
from, the exercise of the power. The purpose in setting up the marker is essentially to recognize
the distinctive contribution of the late Felix Manalo to the culture of the Philippines, rather than to
commemorate his founding and leadership of the Iglesia ni Cristo.

The practical reality that greater benefit may be derived by members of the Iglesia ni Cristo than
by most others could well be true but such a peculiar advantage still remains to be merely
incidental and secondary in nature. Indeed, that only a few would actually benefit from the
expropriation of property does not necessarily diminish the essence and character of public use.
23

Petitioners contend that they have been denied due process in the fixing of the provisional value
of their property. Petitioners need merely to be reminded that what the law prohibits is the lack of
opportunity to be heard;24 contrary to petitioners' argument, the records of this case are replete
with pleadings 25 that could have dealt, directly or indirectly, with the provisional value of the
property.

Petitioners, finally, would fault respondent appellate court in sustaining the trial court's order
which considered inapplicable the case of Noble v. City of Manila. 26 Both courts held correctly.
The Republic was not a party to the alleged contract of exchange between the Iglesia ni Cristo and
petitioners which (the contracting parties) alone, not the Republic, could properly be bound.

All considered, the Court finds the assailed decision to be in accord with law and jurisprudence.

WHEREFORE, the petition is DENIED. No costs.

SO ORDERED
G.R. No. 137285 January 16, 2001

ESTATE SALUD JIMENEZ, petitioner,

vs.
PHILIPPINES EXPORT PROCESSING ZONE, respondent.

DELEON, JR., J.:

Before us is a petition for review on certiorari of the Decision1 and the Resolution2 of the Court
of Appeals3 dated March 25, 1998 and January 14, 1999, respectively, which ordered the
Presiding Judge of the Regional trial Court of Cavite City, Branch 17, to proceed with the hearing
of the expropriation proceedings regarding the determination of just compensation for Lot 1406-B
while setting aside the Orders dated August 4, 19974 and November 3, 1997 of the said Regional
Trial Court which ordered the peaceful turnover to petitioner Estate of Salud Jimenez of said Lot
1406-B.

The facts are as follows:

On may 15, 1981, private respondent Philippines Export Processing Zone (PEZA), then called as
the Export Processing Zone Authority (EPZA), initiated before the Regional Trial Court of Cavite
expropriation proceedings5 on three (3) parcels of irrigated riceland in Rosario, Cavite. One of the
lots, Lot 1406 (A and B) of the San Francisco de Malabon Estate, with an approximate area of
29,008 square meters, is registered in the name of Salud Jimenez under TCT No. T-113498 of the
Registry of Deeds of Cavite.

More than ten (10) years later6, the said trial court in an Order7 dated July 11, 1991 upheld the
right of private respondent PEZA to expropriate, among others, Lot 1406 (A and B).
Reconsideration of the said order was sought by petitioner contending that said lot would only be
transferred to a private corporation, Philippines Vinyl Corp., and hence would not be utilized for a
public purpose.

In an Order8 dated October 25, 19997, the trial court reconsidered the Order dated July 11, 1991
and released Lot 1406-A from expropriation while the expropriation of Lot 1406-B was
maintained. Finding the said order unacceptable, private respondent PEZA interposed an appeal to
the Court of Appeals.

Meanwhile, petitioner wrote a letter to private respondent offering two (2) proposals, namely:

1. Withdrawal of private respondent's appeal with respect to Lot 1406-A I consideration of the
waiver of claim for damages and lass of income for the possession of said lot by private
respondent.
2. The swap of Lot 1406-B with Lot 434 covered by TCT No. T-14772 since private respondent
has no money yet to pay for the lot.

Private respondent's Board approved the "proposal" and the compromise agreement was signed by
private respondent through its then administrator Tagumpay Jadiniano assisted by Government
Corporate Counsel Oscar I. Garcia. Said compromise agreement9 dated January 4, 1993 is quoted
hereunder:

1. That plaintiff agrees to withdraw its appeal from the Order of the Honorable Court dated
October 25, 1991 which released lot 1406-A from the expropriation proceedings. On the other
hand, defendant Estate of Salud Jimenez agrees to waive, quit claim and forfeit its claim for
damages and loss of income which it sustained by person of the possession of said lot by plaintiff
from 1981 up to the present.

2. That the parties agree that defendant Estate of Salud Jimenez shall transfer lot 1406-B with an
area of 13,118 square meters which forms part of the lot registered under TCT No. 113498 of the
Registry of Deeds of Cavite to the name of the plaintiff and the same shall be swapped and
exchanged with lot 434 with an area of 14,167 square meters and covered by Transfer Certificate
of Title No. 14772 of the Registry of Deeds of Cavite which lot will be transferred to the name of
Estate of Salud Jimenez.1âwphi1.nêt

3. That the swap arrangement recognized the fact that the lot 1406-B covered by TCT No. T-
113498 of the state of defendant Salud Jimenez is considered expropriated in favor of the
government based on Order of the Honorable Court dated July 11, 1991. However, instead of
being paid the just compensation for said lot, the estate of said defendant shall be paid with lot
434 covered by TCT No. T-14772.

4. That the parties agree that they will abide by the terms of the foregoing agreement in good faith
and the Decision to be rendered based on this Compromise Agreement is immediately final and
executory.

The Court of Appeals remanded the case to the trial court for the approval of the said compromise
agreement entered into between the parties, consequent with the withdrawal of the appeal with the
Court of Appeals. In the Order10 dated August 23, 1993, the trial court approved the compromise
agreement.

However, private respondent failed to transfer the title of Lot 434 to petitioner inasmuch as it was
not the registered owner of the covering TCT No. T-14772 but Progressive Realty Estate, Inc.
Thus, on March 13, 1997, petitioner Estate filed a "Motion to Partially Annul the Order dated
August 23, 1993."11
In the Order12 dated August 4, 1997, the trial court annulled the said compromise agreement
entered into between the parties and directed private respondent to peacefully turn over Lot 1406-
A to the petitioner. Disagreeing with the said Order of the trial court, respondent PEZA moved13
for its reconsideration. The same proved futile since the trial court denied reconsideration in its
Order14 dated November 3, 1997.

On December 4, 1997, the trial court, at the instance15 of petitioner, corrected the Orders dated
August 4, 1997 and November 3, 1997 by declaring that it is Lot 1406-B and Lot 1406-A that
should be surrendered and returned to petitioner.

On November 27, 1997, respondent interposed before the Court of Appeals a petition for
certiorari and prohibition16 seeking to nullify the Orders dated August 4, 1997 and November 3,
1997 of the court. Petitioner filed its Comment17 on January 16, 1998.

Acting on the petition, the Court of Appeals in a Decision18 dated March 25, 1998 upheld the
rescission of the compromise agreement, ratiocinating thus:

A judicial compromise may be enforced by a writ of execution, and if a party fails or refuses to
abide by the compromise, the other party may regard it as rescinded and insist upon his original
demand. This is in accordance with Article 2041 of the Civil Code, which provides:

If one of the parties fails or refuses to abide by the compromise, the other party may either
enforce the compromise or regard it as rescinded and insist upon his original demand."

The Supreme Court had the occasion to explain this provision of law in the case of Leonor v. Syip
(1 SCRA 1215). It ruled that the language of the above mentioned provision denotes that no
action for rescission is required and that the aggrieved party by the breach of compromise
agreement, may regard the compromise agreement already rescinded, to wit:

It is worthy of notice, in this connection, that, unlike article 2039 of the same Code, which speaks
of "a cause of annulment or rescission of the compromise" and provides that "the compromise
may be annulled or rescinded" for the cause therein specified, thus suggesting an action for
annulment or rescission, said Article 2041 confers upon the party concerned not a "cause" for
rescission, or the right to "demand" rescission, of a compromise, but the authority, not only to
"regard it as rescinded," but, also, to 'insist upon his original demand." The language of this
Article 2041, particularly when contrasted with that of Article 2039, denotes that no action for
rescission is required in said Article 2041, and that to party aggrieved by the breach of a
compromise agreement may, if he chooses, bring the suit contemplated or involved in his original
demand, as if there had never been any compromise agreement, without bringing an action for
rescission thereof. He need not seek a judicial declaration of rescission, for he may "regard" the
compromise agreement already, "rescinded".

Nonetheless, it held that:

Having upheld the rescission of the compromise agreement, what is then the status of the
expropriation proceedings? As succinctly discussed in the case of Leonor vs. Sycip, the aggrieved
party may insist on his original demand as if there had never been any compromise agreement.
This means that the situation of the parties will revert back to status before the execution of the
compromise agreement, that is, the second stage of the expropriation proceedings, which is the
determination of the just compensation.19

x x x

Thus, the appellate court partially granted the petition by setting aside the order of the trial court
regarding "the peaceful turn over to the Estate of Salud Jimenez of Lot No. 1406-B" and instead
ordered the trial judge to "proceed with the hearing of the expropriation proceedings regarding the
determination of just compensation over Lot 1406-B."20

Petitioner sought21 reconsideration of the Decision dated March 25, 1998. However, public
respondent in a resolution22 dated January 14, 1999 denied petitioner's motion for
reconsideration.

Hence, this petition anchored on the following assignment of errors, to wit:

THE COURT OF APPEALS COMMITTED GRAVE AND REVERSIBLE ERROR IN GIVING

DUE COURSE TO THE SPECIAL CIVIL ACTION FILED BY RESPONDENT PEZA IN CA-
G.R. SP. NO. 46112 WHEN IT WAS MADE SUBSTITUTE FOR LOST APPEAL IN CLEAR
CONTRAVENTION OF THE HONORABLE COURT'S RULING IN SEMPIO VS. COURT OF
APPEALS (263 SCRA 617) AND ONGSITCO VS. COURT OF APPEALS (255 SCRA 703)
AND DESPITE THE FACT THAT THE ORDER OF THE CAVITE REGIONAL TRIAL
COURT IS ALREADY FINAL AND EXECUTORY.

II

GRANTING IN GRATIA ARGUMENTI THAT THE SPECIAL CIVIL ACTION OF

CERTIONRARI IS PROPER, THE COURT OF APPEALS NEVERTHELESS WRONGLY
INTERPRETED THE PHRASE "ORIGINAL DEMAND" CONTAINED IN ARTICLE 2041 OF
PETITIONER ESTATE IS THE RETURN OF THE SUBJECT LOT (LOT 1406-B) WHICH IS
SOUGHT TO BE EXPROPRIATED AND NOT THE DETERMINATION OF JUST
COMPENSATION FOR THE LOT. FURTHERMORE, EVEN IF THE INTERPRETATION OF
THE COURT OF APPEALS OR THE IMPORT OF THE PHRASE IN QUESTION IS
CORRECT, IT IS ARTICLE 2039 OF THE CIVIL CODE AND NOT ARTICLE 2041 WHICH IS
APPLICABLE TO COMPROMISE AGREEMENTS APPROVED BY THE COURTS.23

We rule in favor of the respondent.

Petitioner contends that the Court of Appeals erred in entertaining the petition for certiorari files
by respondent under Rule 65 of the Rules of Court, the same being actually a substitute for lost
appeal. It appeared that on August 11, 1997, respondent received the Order of the trial court dated
August 4, 1997 annulling the compromise agreement. On August 26, 1997, that last day for the
filling of a notice of appeal, respondent filed instead a motion for reconsideration. The Order of
the trial court denying the motion for reconsideration was received by respondent on November
23, 1997. The reglementary period to appeal therefore lapsed on November 24, 1997. On
November 27, 1997, however, respondent filed with the Court of Appeals a petition for certiorari
docketed as CA-G.R. SP. No. 46112. Petitioner claims that appeal is the proper remedy inasmuch
as the Order dated August 4, 1997 of the Regional Trial Court is a final order that completely
disposes of the case. Besides, according to petitioner, respondent is estopped in asserting that
certiorari is the proper remedy inasmuch as it invoked the fifteen (15) day reglementary period for
appeal when if filed a motion for reconsideration on August 26, 1997 and not the sixty (60) day
period for filing for certiorari under Rule 65 of the Rules of Court.

The Court of Appeal did not err in entertaining the petition for certiorari under Rule 65 of The
Rules of Court. A petition for certiorari is the proper remedy when any tribunal, board, or officer
exercising judicial or quasi-judicial functions has acted without or in excess of its 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 at law.24 Grave abuse of discretion is defined as the
capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. An error of
judgment committed in the exercise of its legitimate jurisdiction is not the same as "grave abuse
of discretion." An abuse of discretion is not sufficient by itself to justify the issuance of a writ of
certiorari. The abuse must be grave and patent, and it must be shown that the discretion was
exercised arbitrarily and despotically.25

As a general rule, a petition for certiorari will not lie if an appeal is the proper remedy thereto
such as when an error of judgment as well as of procedure are involved. As long as a court acts
within its jurisdiction and does not gravely abuse its discretion in the exercise thereof, any
supposed error committed by it will amount to nothing more than an error of judgment reviewable
by a timely appeal and not assailable by a special civil action of certiorari. However, in certain
exceptional cases, where the rigid application of such rule will result in a manifest failure or
miscarriage of justice, the provisions of the Rules of Court which are technical rules may be
relaxed. Certiorari has been deemed to be justified, for instance, in order to prevent irreparable
damage and injury to a party where the trial judge has capriciously and whimsically exercised his
judgment, or where there may be danger of clear failure of justice, or where and ordinary appeal
would simply be inadequate to relieve a party form the injurious effects of the judgment
complained of.26

Expropriation proceedings involve two (2) phases. The first phase ends either with an order of
expropriation (when the right of plaintiff to take the land and the public purpose to which they are
to be devoted are upheld) or an order of dismissal. Either order would be a final one since if
finally disposes of the case. The second phase concerns the determination of just compensation to
be ascertained by three (3) commissioners. It ends with an order fixing the amount to be paid to
the dependant. Inasmuch as it leaves nothing more to be done, this order finally disposes of the
second stage. To both orders the remedy therefrom is an appeal.27

In the case at bar, the first phase was terminated when the July 11, 1991 order of expropriation
became final and the parties subsequently entered into a compromise agreement regarding the
mode of payment of just compensation. When respondent failed to abide by the terms of the
compromise agreement, petitioner filed and action to partially rescind the same. Obviously, the
trial could only validly order the rescission of the compromise agreement anent the payment of
just compensation inasmuch as that was the subject of the compromise. However, on August 4,
1991, the trial court gravely abused its discretion when it ordered the return of Lot 1406-B. It, in
effect, annulled the Order of Expropriation dated July 11, 1991 which was already final and
executory.

We affirm the appellate court's reliance on the cases of Aguilar v. Tan28 and Bautista v.
Sarmiento29 wherein it was ruled that the remedies of certiorari and appeal are not mutually
exclusive remedies in certain exceptional cases, such as when there is grave abuse of discretion,
or when public welfare so requires. The trial court gravely abused its discretion by setting aside
the order of expropriation which has long become final and executory and by ordering the return
of Lot 1406-B to the petitioner. Its action was clearly beyond its jurisdiction for it cannot modify
a final and executory order. A final and executory order can only be annulled by petition to annual
the same on the ground of extrinsic fraud and lack of jurisdiction30 or a petition for relief from a
final order or judgment under Rule 38 of the Rules of Court. However, no petition to that effect
was filed. Hence, though an order completely and finally disposes of the case, if appeal is not a
plain, speedy and adequate remedy at law of the interest of substantial justice requires, a petition
for certiorari may be availed of upon showing of lack or excess of jurisdiction or grave abuse of
discretion on the part of the trial court.

According to petitioner the rule that a petition for certiorari can be availed of despite the fact that
the proper remedy is an appeal only apples in cases where the petition is filed within the
reglementary period for appeal. Inasmuch as the petition in the case at bar was filed after the
fifteen (15) day regulatory period to appeal, said exceptional rule as enshrined in the cases of
Aguilar v. Tan31 and Bautista v. Sarmiento32 is not applicable. We find this interpretation too
restrictive. The said cases do not set as a condition sine qua non the filing of a petition for
certiorari within the fifteen (15) day period to appeal in order for the said petition to be
entertained by the court. To espouse petitioner's contention would render inutile the sixty (60) day
period to file a petition for certiorari under Rule 65. In Republic v. Court of Appeals33, which
also involved an expropriation case where the parties entered in a compromise agreement on just
compensation, this Court entertained the petition for certiorari despite the existence of an appeal
and despite its being filed after the lapse of the fifteen (15) day period to appeal the same. We
ruled that the Court has not too infrequently given due course to a petition for certiorari, even
when the proper remedy would have been an appeal, where valid and compelling considerations
would warrant such a recourse.34 If compelled to return the subject parcel of land, the respondent
would divert its budget already allocated for economic development in order to pay petitioner the
rental payments from the lessee banks. Re-adjusting its budget would hamper and disrupt the
operation of the economic zone. We believe that the grave abuse of discretion committed by the
trial court and the consequent disruption in the operation of the economic zone constitutes valid
and compelling reasons to entertain the petition.

Petitioner next argues that the instances cited under Section 1 of Rule 41 of the Rules of Court35
whereby an appeal is not allowed are exclusive grounds for a petition for certiorari. Inasmuch as
the August 4, 1997 Order rescinding the compromise agreement does not fall under any of the
instances enumerated therein, a petition for certiorari will not prosper. This reasoning is severely
flawed. The said section is not phrased to make the instances mentioned therein the sole grounds
for a petition for certiorari. It only states that Rule 65 may be availed of under the grounds
mentioned therein, but it never intended said enumeration to be exclusive. It must be remembered
that a wide breadth of discretion is granted a court of justice in certiorari proceeding.36

In the second assignment of error, petitioner assails the interpretation by the Court of appeals of
the phrase "original demand" in Article 2041 of the New Civil Code vis-à-vis the case at bar.
Article 2041 provides that, "if one of the parties fails or refuses to abide by the compromise, the
other party may either enforce the compromise or regard it as rescinded and insist upon his
"original demand" According to petitioner, the appellate court erred in interpreting "original
demand" as the fixing of just compensation. Petitioner claims that the original demand is the
return of Lot 1406-B as stated in petitioner's motion to dismiss37 the complaint for expropriation
inasmuch as the incorporation of the expropriation order in the compromise agreement subjected
the said order to rescission. Since the order of expropriation was rescinded, the authority of
respondent to expropriate and the purpose of expropriation have again become subject to dispute.

Petitioner cites cases38 which provide that upon the failure to pay by the lessee, the lessor can ask
for the return of the lot and the ejectment of the former, this being the lessor's original demand in
the complaint. We find said cases to be inapplicable to this instant case for the reason that the case
at bar is not a simple ejectment case. This is an expropriation case which involves two (2) orders:
an expropriation order and an order fixing just compensation. Once the first order becomes final
and no appeal thereto is taken, the authority to expropriate and its public use cannot anymore be
questioned.

Contrary to petitioner's contention, the incorporation of the expropriation order in the compromise
agreement did not subject said to rescission but instead constituted an admission by petitioner of
respondent's authority to expropriate the subject parcel of land and the public purpose for which it
was expropriated. This is evident from paragraph three (3) of the compromise agreement which
states that the "swap arrangement recognizes the fact that Lot 1406-B covered by TCT No. T-
113498 of the estate of defendant Salud Jimenez is considered expropriated in favor of the
government based on the Order of the Honorable Court dated July 11, 1991." It is crystal clear
from the contents of the agreement that the parties limited the compromise agreement to matter of
just compensation to petitioner. Said expropriate order is not closely intertwined with the issue of
payment such that failure to pay by respondent will also nullify the right of respondent to
expropriate. No statement to this effect was mentioned in the agreement. The Order was
mentioned in the agreement only to clarify what was subject to payment.1âwphi1.nêt

This court therefore finds that the Court of Appeals did not err in interpreting "original demand"
to mean the fixing of just compensation. The authority of respondent and the nature of the
purpose thereof have been put to rest when the Expropriation Order dated July 11, 1991 became
final and was duly admitted by petitioner in the compromise agreement. The only issue for
consideration is the manner and amount of payment due to petitioner. In fact, aside from the
withdrawal of private respondent's appeal to the Court of Appeals concerning Lot 1406-A, the
matter of payment of just compensation was the only subject of the compromise agreement dated
January 4, 1993. Under the compromise agreement, petitioner was supposed to receive
respondent's Lot No. 434 in exchange for Lot 1406-B. When respondent failed to fulfill its
obligation to deliver Lot 434, petitioner can again demand for the payment but not the return of
the expropriated Lot 1406-B. This interpretation by the Court of Appeals is in according with
Section 4 to 8, Rule 67 of the Rules of Court.

We also find as inapplicable the ruling in Gatchalian v. Arlegui39 , a case cited by petitioner,
where we held that even a final judgment can still be compromised so long as it is full satisfied.
As already stated, the expropriation order was not the subject of the compromise agreement. It
was only the mode of payment which was the subject of the compromise agreement. Hence, the
Order of Expropriation dated July 11, 1991 can no longer be annulled.

After having invoked the provisions of Article 2041, petitioner inconsistently contends that said
article does not apply to the case at bar inasmuch as it is only applicable to cases where a
compromise has not been approved by a court. In the case at bar, the trial court approved the
compromise agreement. Petitioner insists that Articles 2038, 2039 and 1330 of the New Civil
Code should apply. Said articles provide that:

Article 2038. A compromise, in which there is mistake, fraud, violence, intimidation, undue
influence, or falsity of documents, is subject to the provisions of Article 1330 of this Code.

However, one of the parties cannot set up a mistake of fact as against the other if the latter, by
virtue of the compromise, has withdrawn from a litigation already commenced.

Article 2039. When the parties compromise generally on all differences which they might have
with each other, the discovery of documents referring to one or more but not to all of the
questions settled shall not itself be a cause for annulment or rescission of the compromise, unless
said documents have been concealed by one of the parties.

But the compromise may be annulled or rescinded if it refers only to one thing to which one of the
parties has no right, as shown by the newly discovered documents.(n)"

Article 1330. A contract where consent is given through mistake, violence, intimidation, undue
influence, or fraud is voidable.40

The applicability of the above-quoted legal provisions will not change the outcome of the subject
of the rescission. Since the compromise agreement was only about the mode of payment by
swapping of lots and not about the right and purpose to expropriate the subject Lot 1406-B, only
the originally agreed for of compensation that is by cash payment, was rescinded.

This court holds that respondent has the legal authority to expropriate the subject Lot 1406-B and
that the same was for a valid public purpose. In Sumulong v. Guerrero41 , this Court has ruled
that,

the "public use" requirement for a valid exercise of the power of eminent domain is a flexible and
evolving concept influenced by changing conditions. In this jurisdiction, the statutory and judicial
trend has been summarized as follows:

this court has ruled that the taking to be valid must be for public use. There was a time when it
was felt that a literal meaning should be attached to such a requirement. Whatever project is
undertaken must be for the public to enjoy as in the case of streets or parks. Otherwise
expropriation is not allowable. It is not anymore. As long as the purpose of the taking is public,
then the power of eminent domain comes into play…It is accurate to beneficially employed for
the general welfare satisfies the requirement of public use. [Heirs of Juancho Ardona v. Reyes,
125 SCRA 220 (1983) at 234-235 quoting E. Fernando, the Constitution of the Philippines 523-
4(2nd Ed. 1977)
The term "public use" has acquired a more comprehensive coverage. To the literal import of the
term signifying strict use or employment by the public has been added the broader notion of
indirect public benefit or advantage.

In Manosca v. Court of Appeals, this Court has also held that what ultimately emerged is a
concept of public use which is just as abroad as "public welfare."42

Respondent PEZA expropriated the subject parcel of land pursuant to Proclamation No. 1980
dated May 30, 1980 issued by former President Ferdinand Marcos. Meanwhile, the power of
eminent domain of respondent is contained in its original charter, Presidential Decree No. 66,
which provides that:

Section 23. Eminent Domain. – For the acquisition of rights of way, or of any property for the
establishment of export processing zones, or of low-cost housing projects for the employees
working in such zones, or for the protection of watershed areas, or for the construction of dams,
reservoirs, wharves, piers, docks, quays, warehouses and other terminal facilities, structures and
approaches thereto, the Authority shall have the right and power to acquire the same by purchase,
by negotiation, or by condemnation proceedings. Should the authority elect to exercise the right
of eminent domain, comdemnation proceedings shall be maintained by and in the name of the
Authority and it may proceed in the manner provided for by law. (italics supplied)

Accordingly, subject Lot 1406-B was expropriated "for the construction…of terminal facilities,
structures and approaches thereto." The authority is broad enough to give the respondent
substantial leeway in deciding for what public use the expropriated property would be utilized.
Pursuant to this broad authority, respondent leased a portion of the lot to commercial banks while
the rest was made a transportation terminal. Said public purposes were even reaffirmed by
Republic Act No. 7916, a law amending respondent PEZA's original charter, which provides that:

Sec. 7 ECOZONE to be a Decentralized Agro-Industrial, industrial, Commercial/Trading, Tourist,

Investment and financial Community. Within the framework of the Constitution, the interest of
national sovereignty and territorial integrity of the Republic, ECOZONE shall be developed, as
much as possible, into a decentralized, self-reliant and self-sustaining industrial,
commercial/trading, agro-industrial, tourist, banking, financial and investment center with
minimum government intervention. Each ECOZONE shall be provided with transportation,
telecommunications and other facilities needed to generate linkage with industries and
employment opportunities for its own habitants and those of nearby towns and cities.

The ECOZONE shall administer itself on economic, financial, industrial, tourism development
and such other matters within the exclusive competence of the national government. (italics
supplied)
Among the powers of PEZA enumerated by the same law are:

Sec.12. Functions and Powers of PEZA Board. ---- The Philippines Economic Zone Authority
(PEZA) Board shall have the following function and powers:

(a) Set the general policies on the establishment and operations of the ECOZONE, Industrial
estate, exports processing zones, free trade zones, and the like:

xxx

(b) Regulate and undertake the establishment, operation and maintenance of utilities, other
services and infrastructure in the ECOZONE, such as heat, light and power, water supply,
telecommunications, transport, toll roads and bridges, port services, etc. and to fix just, reasonable
and competitive rates, fares, charges and fees thereof.43

In Manila Railroad Co. v. Mitchel44 , this Court has ruled that in the exercise of eminent domain,
only as much land can be taken as is necessary for the legitimate purpose of the condemnation,
the term "necessary", in this connection, does not mean absolutely indispensable but requires only
a reasonable necessity of the taking for the stated purpose, growth and future needs of the
enterprise. The respondent cannot attain a self-sustaining and viable ECOZONE if inevitable
needs in the expansion in the surrounding areas are hampered by the mere refusal of the private
landowners to part with their properties. The purpose of creating an ECOZONE and other
facilities is better served if respondent directly owns the areas subject of the expansion program.

The contention of petitioner that the leasing of the subject lot to banks and building terminals was
not expressly mentioned in the original charter of respondent PEZA and that it was only after
PEZA devoted the lot to said purpose the Republic Act No. 7916 took effect, is not impressed
with merit. It should be pointed out that Presidential Decree No. 66 created the respondent PEZA
to be a viable commercial, industrial and investment area. According to the comprehensive
wording of Presidential Decree No. 66, the said decree did not intend to limit respondent PEZA to
the establishment of an export processing zone but it was also bestowed with authority to
expropriate parcels of land "for the construction … of terminal facilities, structures and
approaches thereto." Republic Act No. 7916 simply particularized the broad language employed
by Presidential Decree No. 66 by specifying the purposes for which PEZA shall devote the
condemned lots, that is, for the construction and operation of an industrial estate, an export
processing zone, free trade zones, and the like. The expropriation of Lot 1406-B for the purpose
of being leased to banks and for the construction of a terminal has the purpose of making banking
and transportation facilities easily accessible to the persons working at the industries located in
PEZA. The expropriation of adjacent areas therefore comes as a matter of necessity to bring life
to the purpose of the law. In such a manner, PEZA's goal of being a major force in the economic
development of the country would be realized. Furthermore, this Court has already ruled that:

…(T)he Legislature may directly determine the necessity for appropriating private property for a
particular improvement for public use, and it may select the exact location of the improvement. In
such a case, it is well-settled that the utility of the proposed improvement, the existence of the
public necessity for its construction, the expediency of constructing it, the suitableness of the
location selected, are all questions exclusively for the legislature to determine, and the courts have
no power to interfere or to substitute their own for those of the representatives of the people.

In the absence of some constitutional or statutory provision to the contrary, the necessity and
expediency of exercising the right of eminent domain are questions essentially political and not
judicial in their character.45

Inasmuch as both Presidential Decree No. 66 and Republic Act No. 7916, bestow respondent with
authority to develop terminal facilities and banking centers, this Court will not question the
respondent's lease of certain portions of the expropriated lot to banks, as well as the construction
of terminal facilities.

Petitioner contends that respondent is bound by the representations of its Chief Civil Engineer
when the latter testified before the trial court that the lot was to be devoted for the construction of
government offices. Anent this issue, suffice it to say that PEZA can vary the purpose for which a
condemned lot will be devoted to provided that the same is for public use. Petitioner cannot
impose or dictate on the respondent what facilities to establish for as long as the same are for
public purpose.

Lastly, petitioner appeals to the sense of justice and equity to this Court in restoring the said lot to
its possession. From the time of the filing of the expropriation case in 1981 up to the present,
respondent has not yet remunerated the petitioner although respondent has already received
earnings from the rental payments by lessees of the subject property.

We have rules that the concept of just compensation embraces not only the correct determination
of the amount to be paid to the owners of the land, but also the payment of the land within a
reasonable time from its taking. Without prompt payment, compensation cannot be considered
"just" inasmuch as the property owner is made to suffer the consequences of being immediately
deprived of his land while being made to wait for a decade or more before actually receiving the
amount necessary to cope with his loss.46 Payment of just compensation should follow as a
matter of right immediately after the order of expropriation is issued. Any delay in payment must
be counted from said order. However, the delay to constitute a violation of due process must be
unreasonable and inexcusable: it must be deliberately done by a party in order to defeat the ends
of justice.
We find that respondent capriciously evaded its duty of giving what is due to petitioner. In the
case at bar, the expropriation order was issued by the trial court in 1991. The compromise
agreement between the parties was approved by the trial court in 1993. However, from 1993 up to
the present, respondent has failed in its obligation to pay petitioner to the prejudice of the latter.
Respondent caused damage to petitioner in making the latter to expect that it had a good title to
the property to be swapped with Lot 1406-B; and meanwhile, respondent has been reaping
benefits from the lease or rental income of the said expropriated lot. We cannot tolerate this
oppressive exercise of the power of eminent domain by respondent. As we have ruled in
Cosculluela vs. Court of Appeals:47

In the present case, the irrigation project was completed and has been in operation since 1976.
The project is benefiting the farmers specifically and the community in general. Obviously, the
petitioner's land cannot be returned to him. However, it is high time that the petitioner be paid
what was due him eleven years ago. It is high time that the petitioner be paid what was due him
eleven years ago. It is arbitrary and capricious for a government agency to initiate expropriation
proceedings, seize a person's property, allow the judgment of the court to become final and
executory and then refuse to pay on the ground that there are no appropriations for the property
earlier taken and profitably used. We condemn in the strongest possible terms the cavalier attitude
of government officials who adopt such a despotic and irresponsible stance.

Though the respondent has committed a misdeed to petitioner, we cannot, however, grant the
petitioner's prayer for the return of the expropriated Lot No. 1406-B. The Order of expropriation
dated July 11, 1991, has long become final and executory. Petitioner cited Provincial Government
of Sorsogon v. Rosa E. Vda. De Villaroya48 to support its contention that it is entitled to a return
of the lot where this court ruled that "under ordinary circumstance, immediate return of the
owners of the unpaid property is the obvious remedy." However, the said statement was not the
ruling in that case. As in order cases where there was no prompt payment by the government, this
Court declared in Sorsogon that "the Provincial Government of Sorsogon is expected to
immediately pay as directed should any further delay be encountered, the trial court is directed to
seize any patrimonial property or cash saving of the province in the amount necessary to
implement this decision." However, this Court also stressed and declared in that case that "In
cases where land is taken for public use, public interest, however, must be considered."

In view of all the foregoing, justice and equity dictate that this case be remanded to the trial court
for hearing of the expropriation proceedings on the determination of just compensation for Lot
1406-B and for its prompt payment to the petitioner.

WHEREFORE, the instant petition is hereby denied. The Regional Trial Court of Cavite City is
hereby ordered to proceed with the hearing of the expropriation proceedings, docketed as Civil
Case No. N-4029, regarding the determination of just compensation for Lot 1406-B, covered and
described in TCT No. T-113498-Cavite, and to resolve the same with dispatch.

SO ORDERED.
G.R. No. 146062 June 28, 2001

SANTIAGO ESLABAN, JR., in his capacity as Project Manager of the National Irrigation
Administration, petitioner,
vs.
CLARITA VDA. DE ONORIO, respondent.

MENDOZA, J.:

This is a petition for review of the decision1 of the Court of Appeals which affirmed the decision
of the Regional Trial Court, Branch 26, Surallah, South Cotabato, ordering the National Irrigation
Administration (NIA for brevity) to pay respondent the amount of P107,517.60 as just
compensation for the taking of the latter’s property.

The facts are as follows:

Respondent Clarita Vda. de Enorio is the owner of a lot in Barangay M. Roxas, Sto. Niño, South
Cotabato with an area of 39,512 square meters. The lot, known as Lot 1210-A-Pad-11-000586, is
covered by TCT No. T-22121 of the Registry of Deeds, South Cotabato. On October 6, 1981,
Santiago Eslaban, Jr., Project Manager of the NIA, approved the construction of the main
irrigation canal of the NIA on the said lot, affecting a 24,660 square meter portion thereof.
Respondent’s husband agreed to the construction of the NIA canal provided that they be paid by
the government for the area taken after the processing of documents by the Commission on Audit.

Sometime in 1983, a Right-of-Way agreement was executed between respondent and the NIA
(Exh. 1). The NIA then paid respondent the amount of P4,180.00 as Right-of-Way damages.
Respondent subsequently executed an Affidavit of Waiver of Rights and Fees whereby she waived
any compensation for damages to crops and improvements which she suffered as a result of the
construction of a right-of-way on her property (Exh. 2). The same year, petitioner offered
respondent the sum of P35,000.00 by way of amicable settlement pursuant to Executive Order
No. 1035, §18, which provides in part that ―

Financial assistance may also be given to owners of lands acquired under C.A. 141, as amended,
for the area or portion subject to the reservation under Section 12 thereof in such amounts as may
be determined by the implementing agency/instrumentality concerned in consultation with the
Commission on Audit and the assessor’s office concerned.

Respondent demanded payment for the taking of her property, but petitioner refused to pay.
Accordingly, respondent filed on December 10, 1990 a complaint against petitioner before the
Regional Trial Court, praying that petitioner be ordered to pay the sum of P111,299.55 as
compensation for the portion of her property used in the construction of the canal constructed by
the NIA, litigation expenses, and the costs.

Petitioner, through the Office of the Solicitor-General, filed an Answer, in which he admitted that
NIA constructed an irrigation canal over the property of the plaintiff and that NIA paid a certain
landowner whose property had been taken for irrigation purposes, but petitioner interposed the
defense that: (1) the government had not consented to be sued; (2) the total area used by the NIA
for its irrigation canal was only 2.27 hectares, not 24,600 square meters; and (3) respondent was
not entitled to compensation for the taking of her property considering that she secured title over
the property by virtue of a homestead patent under C.A. No. 141.

At the pre-trial conference, the following facts were stipulated upon: (1) that the area taken was
24,660 square meters; (2) that it was a portion of the land covered by TCT No. T-22121 in the
name of respondent and her late husband (Exh. A); and (3) that this area had been taken by the
NIA for the construction of an irrigation canal.2

On October 18, 1993, the trial court rendered a decision, the dispositive portion of which reads:

In view of the foregoing, decision is hereby rendered in favor of plaintiff and against the
defendant ordering the defendant, National Irrigation Administration, to pay to plaintiff the sum
of One Hundred Seven Thousand Five Hundred Seventeen Pesos and Sixty Centavos
(P107,517.60) as just compensation for the questioned area of 24,660 square meters of land
owned by plaintiff and taken by said defendant NIA which used it for its main canal plus costs.3

On November 15, 1993, petitioner appealed to the Court of Appeals which, on October 31, 2000,
affirmed the decision of the Regional Trial Court. Hence this petition.

The issues in this case are:

1. WHETHER OR NOT THE PETITION IS DISMISSIBLE FOR FAILURE TO COMPLY

WITH THE PROVISIONS OF SECTION 5, RULE 7 OF THE REVISED RULES OF CIVIL
PROCEDURE.

2. WHETHER OR NOT LAND GRANTED BY VIRTUE OF A HOMESTEAD PATENT AND

SUBSEQUENTLY REGISTERED UNDER PRESIDENTIAL DECREE 1529 CEASES TO BE
PART OF THE PUBLIC DOMAIN.

3. WHETHER OR NOT THE VALUE OF JUST COMPENSATION SHALL BE DETERMINED

FROM THE TIME OF THE TAKING OR FROM THE TIME OF THE FINALITY OF THE
DECISION.
4. WHETHER THE AFFIDAVIT OF WAIVER OF RIGHTS AND FEES EXECUTED BY
RESPONDENT EXEMPTS PETITIONER FROM MAKING PAYMENT TO THE FORMER.

We shall deal with these issues in the order they are stated.

First. Rule 7, §5 of the 1997 Revised Rules on Civil Procedure provides ―

Certification against forum shopping. ― The plaintiff or principal party shall certify under oath in
the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification
annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced
any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial
agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if
there is such other pending action or claim, a complete statement of the present status thereof; and
(c) if he should thereafter learn that the same or similar action or claim has been filed or is
pending, he shall report the fact within five (5) days therefrom to the court wherein his aforesaid
complaint or initiatory pleading has been filed.

Failure to comply with the foregoing requirements shall not be curable by mere amendment of the
complaint or other initiatory pleading but shall be cause for the dismissal of the case without
prejudice, unless otherwise provided, upon motion and after hearing . . . .

By reason of Rule 45, §4 of the 1997 Revised Rules on Civil Procedure, in relation to Rule 42, §2
thereof, the requirement of a certificate of non-forum shopping applies to the filing of petitions
for review on certiorari of the decisions of the Court of Appeals, such as the one filed by
petitioner.

As provided in Rule 45, §5, "The failure of the petitioner to comply with any of the foregoing
requirements regarding . . . the contents of the document which should accompany the petition
shall be sufficient ground for the dismissal thereof."

The requirement in Rule 7, §5 that the certification should be executed by the plaintiff or the
principal means that counsel cannot sign the certificate against forum-shopping. The reason for
this is that the plaintiff or principal knows better than anyone else whether a petition has
previously been filed involving the same case or substantially the same issues. Hence, a
certification signed by counsel alone is defective and constitutes a valid cause for dismissal of the
petition.4

In this case, the petition for review was filed by Santiago Eslaban, Jr., in his capacity as Project
Manager of the NIA. However, the verification and certification against forum-shopping were
signed by Cesar E. Gonzales, the administrator of the agency. The real party-in-interest is the
NIA, which is a body corporate. Without being duly authorized by resolution of the board of the
corporation, neither Santiago Eslaban, Jr. nor Cesar E. Gonzales could sign the certificate against
forum-shopping accompanying the petition for review. Hence, on this ground alone, the petition
should be dismissed.

Second. Coming to the merits of the case, the land under litigation, as already stated, is covered
by a transfer certificate of title registered in the Registry Office of Koronadal, South Cotabato on
May 13, 1976. This land was originally covered by Original Certificate of Title No. (P-25592) P-
9800 which was issued pursuant to a homestead patent granted on February 18, 1960. We have
held:

Whenever public lands are alienated, granted or conveyed to applicants thereof, and the deed
grant or instrument of conveyance [sales patent] registered with the Register of Deeds and the
corresponding certificate and owner’s duplicate of title issued, such lands are deemed registered
lands under the Torrens System and the certificate of title thus issued is as conclusive and
indefeasible as any other certificate of title issued to private lands in ordinary or cadastral
registration proceedings.5

The Solicitor-General contends, however, that an encumbrance is imposed on the land in question
in view of §39 of the Land Registration Act (now P.D. No. 1529, §44) which provides:

Every person receiving a certificate of title in pursuance of a decree of registration, and every
subsequent purchaser of registered land who takes a certificate of title for value in good faith shall
hold the same free from all encumbrances except those noted on said certificate, and any of the
following encumbrances which may be subsisting, namely:

....

Third. Any public highway, way, private way established by law, or any government irrigation
canal or lateral thereof, where the certificate of title does not state that the boundaries of such
highway, way, irrigation canal or lateral thereof, have been determined.

As this provision says, however, the only servitude which a private property owner is required to
recognize in favor of the government is the easement of a "public highway, way, private way
established by law, or any government canal or lateral thereof where the certificate of title does
not state that the boundaries thereof have been pre-determined." This implies that the same should
have been pre-existing at the time of the registration of the land in order that the registered owner
may be compelled to respect it. Conversely, where the easement is not pre-existing and is sought
to be imposed only after the land has been registered under the Land Registration Act, proper
expropriation proceedings should be had, and just compensation paid to the registered owner
thereof.6
In this case, the irrigation canal constructed by the NIA on the contested property was built only
on October 6, 1981, several years after the property had been registered on May 13, 1976.
Accordingly, prior expropriation proceedings should have been filed and just compensation paid
to the owner thereof before it could be taken for public use.

Indeed, the rule is that where private property is needed for conversion to some public use, the
first thing obviously that the government should do is to offer to buy it.7 If the owner is willing to
sell and the parties can agree on the price and the other conditions of the sale, a voluntary
transaction can then be concluded and the transfer effected without the necessity of a judicial
action. Otherwise, the government will use its power of eminent domain, subject to the payment
of just compensation, to acquire private property in order to devote it to public use.

Third. With respect to the compensation which the owner of the condemned property is entitled to
receive, it is likewise settled that it is the market value which should be paid or "that sum of
money which a person, desirous but not compelled to buy, and an owner, willing but not
compelled to sell, would agree on as a price to be given and received therefor."8 Further, just
compensation means not only the correct amount to be paid to the owner of the land but also the
payment of the land within a reasonable time from its taking. Without prompt payment,
compensation cannot be considered "just" for then the property owner is made to suffer the
consequence of being immediately deprived of his land while being made to wait for a decade or
more before actually receiving the amount necessary to cope with his loss.9 Nevertheless, as
noted in Ansaldo v. Tantuico, Jr.,10 there are instances where the expropriating agency takes over
the property prior to the expropriation suit, in which case just compensation shall be determined
as of the time of taking, not as of the time of filing of the action of eminent domain.

Before its amendment in 1997, Rule 67, §4 provided:

Order of condemnation. When such a motion is overruled or when any party fails to defend as
required by this rule, the court may enter an order of condemnation declaring that the plaintiff has
a lawful right to take the property sought to be condemned, for the public use or purpose
described in the complaint upon the payment of just compensation to be determined as of the date
of the filing of the complaint. . . .

It is now provided that ―

SEC. 4. Order of expropriation. ― If the objections to and the defense against the right of the
plaintiff to expropriate the property are overruled, or when no party appears to defend as required
by this Rule, the court may issue an order of expropriation declaring that the plaintiff has a lawful
right to take the property sought to be expropriated, for the public use or purpose described in the
complaint, upon the payment of just compensation to be determined as of the date of the taking of
the property or the filing of the complaint, whichever came first.
A final order sustaining the right to expropriate the property may be appealed by any party
aggrieved thereby. Such appeal, however, shall not prevent the court from determining the just
compensation to be paid.

After the rendition of such an order, the plaintiff shall not be permitted to dismiss or discontinue
the proceeding except on such terms as the court deems just and equitable. (Emphasis added)

Thus, the value of the property must be determined either as of the date of the taking of the
property or the filing of the complaint, "whichever came first." Even before the new rule,
however, it was already held in Commissioner of Public Highways v. Burgos11 that the price of
the land at the time of taking, not its value after the passage of time, represents the true value to be
paid as just compensation. It was, therefore, error for the Court of Appeals to rule that the just
compensation to be paid to respondent should be determined as of the filing of the complaint in
1990, and not the time of its taking by the NIA in 1981, because petitioner was allegedly remiss in
its obligation to pay respondent, and it was respondent who filed the complaint. In the case of
Burgos,12 it was also the property owner who brought the action for compensation against the
government after 25 years since the taking of his property for the construction of a road.

Indeed, the value of the land may be affected by many factors. It may be enhanced on account of
its taking for public use, just as it may depreciate. As observed in Republic v. Lara:13

[W]here property is taken ahead of the filing of the condemnation proceedings, the value thereof
may be enhanced by the public purpose for which it is taken; the entry by the plaintiff upon the
property may have depreciated its value thereby; or there may have been a natural increase in the
value of the property from the time it is taken to the time the complaint is filed, due to general
economic conditions. The owner of private property should be compensated only for what he
actually loses; it is not intended that his compensation shall extend beyond his loss or injury. And
what he loses is only the actual value of his property at the time it is taken. This is the only way
that compensation to be paid can be truly just, i.e., "just" not only to the individual whose
property is taken, "but to the public, which is to pay for it" . . . .

In this case, the proper valuation for the property in question is P16,047.61 per hectare, the price
level for 1982, based on the appraisal report submitted by the commission (composed of the
provincial treasurer, assessor, and auditor of South Cotabato) constituted by the trial court to make
an assessment of the expropriated land and fix the price thereof on a per hectare basis.14

Fourth. Petitioner finally contends that it is exempt from paying any amount to respondent
because the latter executed an Affidavit of Waiver of Rights and Fees of any compensation due in
favor of the Municipal Treasurer of Barangay Sto. Niño, South Cotabato. However, as the Court
of Appeals correctly held:
[I]f NIA intended to bind the appellee to said affidavit, it would not even have bothered to give
her any amount for damages caused on the improvements/crops within the appellee’s property.
This, apparently was not the case, as can be gleaned from the disbursement voucher in the amount
of P4,180.00 (page 10 of the Folder of Exhibits in Civil Case 396) issued on September 17, 1983
in favor of the appellee, and the letter from the Office of the Solicitor General recommending the
giving of "financial assistance in the amount of P35,000.00" to the appellee.

Thus, We are inclined to give more credence to the appellee’s explanation that the waiver of rights
and fees "pertains only to improvements and crops and not to the value of the land utilized by
NIA for its main canal."15

WHEREFORE, premises considered, the assailed decision of the Court of Appeals is hereby
AFFIRMED with MODIFICATION to the extent that the just compensation for the contested
property be paid to respondent in the amount of P16,047.61 per hectare, with interest at the legal
rate of six percent (6%) per annum from the time of taking until full payment is made. Costs
against petitioner.1âwphi1.nêt

SO ORDERED.
G.R. No. L-59603 April 29, 1987

EXPORT PROCESSING ZONE AUTHORITY, petitioner,

vs.
HON. CEFERINO E. DULAY, in his capacity as the Presiding Judge, Court of First Instance of
Cebu, Branch XVI, Lapu-Lapu City, and SAN ANTONIO DEVELOPMENT CORPORATION,
respondents.
Elena M. Cuevas for respondents.

GUTIERREZ, JR., J.:

The question raised in this petition is whether or not Presidential Decrees Numbered 76, 464, 794
and 1533 have repealed and superseded Sections 5 to 8 of Rule 67 of the Revised Rules of Court,
such that in determining the just compensation of property in an expropriation case, the only basis
should be its market value as declared by the owner or as determined by the assessor, whichever
is lower.

On January 15, 1979, the President of the Philippines, issued Proclamation No. 1811, reserving a
certain parcel of land of the public domain situated in the City of Lapu-Lapu, Island of Mactan,
Cebu and covering a total area of 1,193,669 square meters, more or less, for the establishment of
an export processing zone by petitioner Export Processing Zone Authority (EPZA).

Not all the reserved area, however, was public land. The proclamation included, among others,
four (4) parcels of land with an aggregate area of 22,328 square meters owned and registered in
the name of the private respondent. The petitioner, therefore, offered to purchase the parcels of
land from the respondent in acccordance with the valuation set forth in Section 92, Presidential
Decree (P.D.) No. 464, as amended. The parties failed to reach an agreement regarding the sale of
the property.

The petitioner filed with the then Court of First Instance of Cebu, Branch XVI, Lapu-Lapu City, a
complaint for expropriation with a prayer for the issuance of a writ of possession against the
private respondent, to expropriate the aforesaid parcels of land pursuant to P.D. No. 66, as
amended, which empowers the petitioner to acquire by condemnation proceedings any property
for the establishment of export processing zones, in relation to Proclamation No. 1811, for the
purpose of establishing the Mactan Export Processing Zone.

On October 21, 1980, the respondent judge issued a writ of possession authorizing the petitioner
to take immediate possession of the premises. On December 23, 1980, the private respondent flied
its answer.
At the pre-trial conference on February 13, 1981, the respondent judge issued an order stating that
the parties have agreed that the only issue to be resolved is the just compensation for the
properties and that the pre-trial is thereby terminated and the hearing on the merits is set on April
2, 1981.

On February 17, 1981, the respondent judge issued the order of condemnation declaring the
petitioner as having the lawful right to take the properties sought to be condemned, upon the
payment of just compensation to be determined as of the filing of the complaint. The respondent
judge also issued a second order, subject of this petition, appointing certain persons as
commissioners to ascertain and report to the court the just compensation for the properties sought
to be expropriated.

On June 19, 1981, the three commissioners submitted their consolidated report recommending the
amount of P15.00 per square meter as the fair and reasonable value of just compensation for the
properties.

On July 29, 1981, the petitioner Med a Motion for Reconsideration of the order of February 19,
1981 and Objection to Commissioner's Report on the grounds that P.D. No. 1533 has superseded
Sections 5 to 8 of Rule 67 of the Rules of Court on the ascertainment of just compensation
through commissioners; and that the compensation must not exceed the maximum amount set by
P.D. No. 1533.

On November 14, 1981, the trial court denied the petitioner's motion for reconsideration and gave
the latter ten (10) days within which to file its objection to the Commissioner's Report.

On February 9, 1982, the petitioner flied this present petition for certiorari and mandamus with
preliminary restraining order, enjoining the trial court from enforcing the order dated February 17,
1981 and from further proceeding with the hearing of the expropriation case.

The only issue raised in this petition is whether or not Sections 5 to 8, Rule 67 of the Revised
Rules of Court had been repealed or deemed amended by P.D. No. 1533 insofar as the
appointment of commissioners to determine the just compensation is concerned. Stated in another
way, is the exclusive and mandatory mode of determining just compensation in P.D. No. 1533
valid and constitutional?

The petitioner maintains that the respondent judge acted in excess of his jurisdiction and with
grave abuse of discretion in denying the petitioner's motion for reconsideration and in setting the
commissioner's report for hearing because under P.D. No. 1533, which is the applicable law
herein, the basis of just compensation shall be the fair and current market value declared by the
owner of the property sought to be expropriated or such market value as determined by the
assessor, whichever is lower. Therefore, there is no more need to appoint commissioners as
prescribed by Rule 67 of the Revised Rules of Court and for said commissioners to consider other
highly variable factors in order to determine just compensation. The petitioner further maintains
that P.D. No. 1533 has vested on the assessors and the property owners themselves the power or
duty to fix the market value of the properties and that said property owners are given the full
opportunity to be heard before the Local Board of Assessment Appeals and the Central Board of
Assessment Appeals. Thus, the vesting on the assessor or the property owner of the right to
determine the just compensation in expropriation proceedings, with appropriate procedure for
appeal to higher administrative boards, is valid and constitutional.

Prior to the promulgation of P.D. Nos. 76, 464, 794 and 1533, this Court has interpreted the
eminent domain provisions of the Constitution and established the meaning, under the fundametal
law, of just compensation and who has the power to determine it. Thus, in the following cases,
wherein the filing of the expropriation proceedings were all commenced prior to the promulgation
of the aforementioned decrees, we laid down the doctrine onjust compensation:

Municipality of Daet v. Court of Appeals (93 SCRA 503, 516),

xxx xxx xxx

"And in the case of J.M. Tuason & Co., Inc. v. Land Tenure Administration, 31 SCRA 413, the
Court, speaking thru now Chief Justice Fernando, reiterated the 'well-settled (rule) that just
compensation means the equivalent for the value of the property at the time of its taking.
Anything beyond that is more and anything short of that is less, than just compensation. It means
a fair and full equivalent for the loss sustained, which is the measure of the indemnity, not
whatever gain would accrue to the expropriating entity."

Garcia v. Court ofappeals (102 SCRA 597, 608),

xxx xxx xxx

"Hence, in estimating the market value, all the capabilities of the property and all the uses to
which it may be applied or for which it is adapted are to be considered and not merely the
condition it is in the time and the use to which it is then applied by the owner. All the facts as to
the condition of the property and its surroundings, its improvements and capabilities may be
shown and considered in estimating its value."

Republic v. Santos (141 SCRA 30, 35-36),

"According to section 8 of Rule 67, the court is not bound by the commissioners' report. It may
make such order or render such judgment as shall secure to the plaintiff the property essential to
the exercise of his right of condemnation, and to the defendant just compensation for the property
expropriated. This Court may substitute its own estimate of the value as gathered from the record
(Manila Railroad Company v. Velasquez, 32 Phil. 286)."

However, the promulgation of the aforementioned decrees practically set aside the above and
many other precedents hammered out in the course of evidence-laden, well argued, fully heard,
studiously deliberated, and judiciously considered court proceedings. The decrees categorically
and peremptorily limited the definition of just compensation thus:

P.D. No. 76:

xxx xxx xxx

"For purposes of just compensation in cases of private property acquired by the government for
public use, the basis shall be the current and fair market value declared by the owner or
administrator, or such market value as determined by the Assessor, whichever is lower."

P.D. No. 464:

"Section 92. Basis for payment of just compensation in expropriation proceedings. — In

determining just compensation which private property is acquired by the government for public
use, the basis shall be the market value declared by the owner or administrator or anyone having
legal interest in the property, or such market value as determined by the assessor, whichever is
lower."

P.D. No. 794:

"Section 92. Basis for payment of just compensation in expropriation proceedings. — In

determining just compensation when private property is acquired by the government for public
use, the same shall not exceed the market value declared by the owner or administrator or anyone
having legal interest in the property, or such market value as determined by the assessor,
whichever is lower."

P.D. No. 1533:

"Section 1. In determining just compensation for private property acquired through eminent
domain proceedings, the compensation to be paid shall not exceed the value declared by the
owner or administrator or anyone having legal interest in the property or determined by the
assessor, pursuant to the Real Property Tax Code, whichever value is lower, prior to the
recommendation or decision of the appropriate Government office to acquire the property."
We are constrained to declare the provisions of the Decrees on just compensation unconstitutional
and void and accordingly dismiss the instant petition for lack of merit.

The method of ascertaining just compensation under the aforecited decrees constitutes
impermissible encroachment on judicial prerogatives. It tends to render this Court inutile in a
matter which under the Constitution is reserved to it for final determination.

Thus, although in an expropriation proceeding the court technically would still have the power to
determine the just compensation for the property, following the applicable decrees, its task would
be relegated to simply stating the lower value of the property as declared either by the owner or
the assessor. As a necessary consequence, it would be useless for the court to appoint
commissioners under Rule 67 of the Rules of Court. Moreover, the need to satisfy the due process
clause in the taking of private property is seemingly fulfilled since it cannot be said that a judicial
proceeding was not had before the actual taking. However, the strict application of the decrees
during the proceedings would be nothing short of a mere formality or charade as the court has
only to choose between the valuation of the owner and that of the assessor, and its choice is
always limited to the lower of the two. The court cannot exercise its discretion or independence in
determining what is just or fair. Even a grade school pupil could substitute for the judge insofar as
the determination of constitutional just compensation is concerned.

In the case of National Housing Authority v. Reyes (123 SCRA 245), this Court upheld P.D. No.
464, as further amended by P.D. Nos. 794, 1224 and 1259. In this case, the petitioner National
Housing Authority contended that the owner's declaration at P1,400.00 which happened to be
lower than the assessor's assessment, is the just compensation for the respondent's property under
section 92 of P.D. No. 464. On the other hand, the private respondent stressed that while there
may be basis for the allegation that the respondent judge did not follow the decree, the matter is
still subject to his final disposition, he having been vested with the original and competent
authority to exercise his judicial discretion in the light of the constitutional clauses on due process
and equal protection.

To these opposing arguments, this Court ruled ihat under the conceded facts, there should be a
recognition that the law as it stands must be applied; that the decree having spoken so clearly and
unequivocably calls for obedience; and that on a matter where the applicable law speaks in no
uncertain language, the Court has no choice except to yield to its command. We further stated that
"the courts should recognize that the rule introduced by P.D. No. 76 and reiterated in subsequent
decrees does not upset the established concepts of justice or the constitutional provision on just
compensation for, precisely, the owner is allowed to make his own valuation of his property."

While the Court yielded to executive prerogative exercised in the form of absolute law-making
power, its members, nonetheless, remained uncomfortable with the implications of the decision
and the abuse and unfairness which might follow in its wake. For one thing, the President himself
did not seem assured or confident with his own enactment. It was not enough to lay down the law
on determination of just compensation in P.D. 76. It had to be repeated and reiterated in P.D. 464,
P.D. 794, and P.D. 1533. The provision is also found in P.D. 1224, P.D. 1259 and P.D. 1313.
Inspite of its effectivity as general law and the wide publicity given to it, the questioned provision
or an even stricter version had to be embodied in cases of specific expropriations by decree as in
P.D. 1669 expropriating the Tambunting Estate and P.D. 1670 expropriating the Sunog Apog area
in Tondo, Manila.

In the present petition, we are once again confronted with the same question of whether the courts
under P.D. 1533, which contains the same provision on just compensation as its predecessor
decrees, still have the power and authority to determine just compensation, independent of what is
stated by the decree and to this effect, to appoint commissioners for such purpose.

This time, we answer in the affirmative.

In overruling the petitioner's motion for reconsideration and objection to the commissioner's
report, the trial court said:

"Another consideration why the Court is empowered to appoint commissioners to assess the just
compensation of these properties under eminent domain proceedings, is the well-entrenched
ruling that 'the owner of property expropriated is entitled to recover from expropriating authority
the fair and full value of the lot, as of the time when possession thereof was actually taken by the
province, plus consequential damages — including attorney's fees — from which the
consequential benefits, if any should be deducted, with interest at the legal rate, on the aggregate
sum due to the owner from and after the date of actual taking.' (Capitol Subdivision, Inc. v.
Province of Negros Occidental, 7 SCRA 60). In fine, the decree only establishes a uniform basis
for determining just compensation which the Court may consider as one of the factors in arriving
at 'just compensation,' as envisage in the Constitution. In the words of Justice Barredo,
"Respondent court's invocation of General Order No. 3 of September 21, 1972 is nothing short of
an unwarranted abdication of judicial authority, which no judge duly imbued with the implications
of the paramount principle of independence of the judiciary should ever think of doing." (Lina v.
Purisima, 82 SCRA 344, 351; Cf. Prov. of Pangasinan v. CFI Judge of Pangasinan, Br. VIII, 80
SCRA 117) Indeed, where this Court simply follows PD 1533, thereby limiting the determination
of just compensation on the value declared by the owner or administrator or as determined by the
Assessor, whichever is lower, it may result in the deprivation of the landowner's right of due
process to enable it to prove its claim to just compensation, as mandated by the Constitution. (Uy
v. Genato, 57 SCRA 123). The tax declaration under the Real Property Tax Code is, undoubtedly,
for purposes of taxation."

We are convinced and so rule that the trial court correctly stated that the valuation in the decree
may only serve as a guiding principle or one of the factors in determining just compensation but it
may not substitute the court's own judgment as to what amount should be awarded and how to
arrive at such amount. A return to the earlier well-established doctrine, to our mind, is more in
keeping with the principle that the judiciary should live up to its mission "by vitalizing and not
denigrating constitutional rights." (See Salonga v. Cruz Paño, 134 SCRA 438, 462; citing
Mercado v. Court of First Instance of Rizal, 116 SCRA 93.) The doctrine we enunciated in
National Housing Authority v. Reyes, supra, therefore, must necessarily be abandoned if we are to
uphold this Court's role as the guardian of the fundamental rights guaranteed by the due process
and equal protection clauses and as the final arbiter over transgressions committed against
constitutional rights.

The basic unfairness of the decrees is readily apparent.

Just compensation means the value of the property at the time of the taking. It means a fair and
full equivalent for the loss sustained. All the facts as to the condition of the property and its
surroundings, its improvements and capabilities, should be considered.

In this particular case, the tax declarations presented by the petitioner as basis for just
compensation were made by the Lapu-Lapu municipal, later city assessor long before martial law,
when land was not only much cheaper but when assessed values of properties were stated in
figures constituting only a fraction of their true market value. The private respondent was not
even the owner of the properties at the time. It purchased the lots for development purposes. To
peg the value of the lots on the basis of documents which are out of date and at prices below the
acquisition cost of present owners would be arbitrary and confiscatory.

Various factors can come into play in the valuation of specific properties singled out for
expropriation. The values given by provincial assessors are usually uniform for very wide areas
covering several barrios or even an entire town with the exception of the poblacion. Individual
differences are never taken into account. The value of land is based on such generalities as its
possible cultivation for rice, corn, coconuts, or other crops. Very often land described as
"cogonal" has been cultivated for generations. Buildings are described in terms of only two or
three classes of building materials and estimates of areas are more often inaccurate than correct.
Tax values can serve as guides but cannot be absolute substitutes for just compensation.

To say that the owners are estopped to question the valuations made by assessors since they had
the opportunity to protest is illusory. The overwhelming mass of land owners accept
unquestioningly what is found in the tax declarations prepared by local assessors or municipal
clerks for them. They do not even look at, much less analyze, the statements. The Idea of
expropriation simply never occurs until a demand is made or a case filed by an agency authorized
to do so.
It is violative of due process to deny to the owner the opportunity to prove that the valuation in
the tax documents is unfair or wrong. And it is repulsive to basic concepts of justice and fairness
to allow the haphazard work of a minor bureaucrat or clerk to absolutely prevail over the
judgment of a court promulgated only after expert commissioners have actually viewed the
property, after evidence and arguments pro and con have been presented, and after all factors and
considerations essential to a fair and just determination have been judiciously evaluated.

As was held in the case of Gideon v. Wainwright (93 ALR 2d,733,742):

"In the light of these and many other prior decisions of this Court, it is not surprising that the
Betts Court, when faced with the contention that 'one charged with crime, who is unable to obtain
counsel must be furnished counsel by the State,' conceded that '[E]xpressions in the opinions of
this court lend color to the argument. . .' 316 U.S., at 462, 463, 86 L ed. 1602, 62 S Ct. 1252. The
fact is that in deciding as it did-that "appointment of counsel is not a fundamental right, essential
to a fair trial" — the Court in Betts v. Brady made an ubrupt brake with its own well-considered
precedents. In returning to these old precedents, sounder we believe than the new, we but restore
constitutional principles established to achieve a fair system of justice. . ."

We return to older and more sound precedents. This Court has the duty to formulate guiding and
controlling constitutional principles, precepts, doctrines, or rules. (See Salonga v. Cruz Pano,
supra).

The determination of "just compensation" in eminent domain cases is a judicial function. The
executive department or the legislature may make the initial determinations but when a party
claims a violation of the guarantee in the Bill of Rights that private property may not be taken for
public use without just compensation, no statute, decree, or executive order can mandate that its
own determination shall prevail over the court's findings. Much less can the courts be precluded
from looking into the "just-ness" of the decreed compensation.

We, therefore, hold that P.D. No. 1533, which eliminates the court's discretion to appoint
commissioners pursuant to Rule 67 of the Rules of Court, is unconstitutional and void. To hold
otherwise would be to undermine the very purpose why this Court exists in the first place.

WHEREFORE, IN VIEW OF THE FOREGOING, the petition is hereby DISMISSED. The

temporary restraining order issued on February 16, 1982 is LIFTED and SET ASIDE.

SO ORDERED.