A.M. No.

11-7-10-SC July 31, 2012

Re: COA Opinion on the Computation of the Appraised Value of the Properties Purchased by
the Retired Chief/Associate Justices of the Supreme Court.

RESOLUTION

PER CURIAM:

The present administrative matter stems from the two Memoranda, dated July 14, 2011 and August
10, 2010, submitted by Atty. Eden T. Candelaria, Deputy Clerk of Court and Chief Administrative
Officer, Office of Administrative Services, to the Office of the Chief Justice. These

Memoranda essentially ask the Court to determine the proper formula to be used in computing the
appraisal value that a retired Chief Justice and several Associate Justices of the Supreme Court
have to pay to acquire the government properties they used during their tenure.

THE FACTUAL ANTECEDENTS

This issue has its roots in the June 8, 2010 Opinion1 issued by the Legal Services Sector, Office of
the General Counsel of the Commission on Audit (COA), which found that an underpayment
amounting to P221,021.50 resulted when five (5) retired Supreme Court justices purchased from the
Supreme Court the personal properties assigned to them during their incumbency in the Court, to
wit:
1âw phi1

Valuation
Valuation under
Items under COA Difference
Name of Justice
Purchased CFAG Memorandum (in pesos)
(in pesos) No. 98-569A
(in pesos)

Artemio Panganiban Toyota Camry, 341,241.10 365,000.00 23,758.90

(Chief Justice) 2003 model

Toyota Grandia, 136,500.00 151,000.00 14,500.00

2002 model
Toyota Camry, 115,800.00 156,000.00 40,200.00
2001 model

Ruben T. Reyes Toyota Camry, 579,532.50 580,600.00 1,067.50

(Associate Justice) 2005 model

Toyota Grandia, 117,300.00 181,200.00 63,900.00

2003 model

Angelina S. Toyota Grandia, 115,800.00 150,600.00 34,800.00

Gutierrez 2002 model
(Associate Justice)
Adolfo S. Azcuna Toyota Camry, 536,105.00 543,300.00 9,195.00
(Associate Justice) 2005 model
 Toyota Grandia, 117,300.00 145,000.00 27,700.00
2002 model

Sony TV Set 2,399.90 2,500.00 100.10

Ma. Alicia 5,800.002

The COA attributed this underpayment to the use by the Property Division of the Supreme Court of
the wrong formula in computing the appraisal value of the purchased vehicles. According to the
COA, the Property Division erroneously appraised the subject motor vehicles by applying
Constitutional Fiscal Autonomy Group (CFAG) Joint Resolution No. 35 dated April 23, 1997 and its
guidelines, in compliance with the Resolution of the Court En Banc dated March 23, 2004 in A.M.
No. 03-12-01,3 when it should have applied the formula found in COA Memorandum No. 98-569-
A4 dated August 5, 1998.

Recommendations of the Office of Administrative Services In her Memorandum dated August 10,
2010, Atty. Candelaria recommended that the Court advise the COA to respect the in-house
computation based on the CFAG formula, noting that this was the first time that the COA questioned
the authority of the Court in using CFAG Joint Resolution No. 35 and its guidelines in the appraisal
and disposal of government property since these were issued in 1997. As a matter of fact, in two
previous instances involving two (2) retired Court of Appeals Associate Justices,5 the COA upheld the
in-house appraisal of government property using the formula found in the CFAG guidelines. More
importantly, the Constitution itself grants the Judiciary fiscal autonomy in the handling of its budget
and resources. Full autonomy, among others,6 contemplates the guarantee of full flexibility in the
allocation and utilization of the Judiciary’s resources, based on its own determination of what it
needs. The Court thus has the recognized authority to allocate and disburse such sums as may be
provided or required by law in the course of the discharge of its functions.7 To allow the COA to
substitute the Court’s policy in the disposal of its property would be tantamount to an encroachment
into this judicial prerogative.

OUR RULING

We find Atty. Candelaria’s recommendation to be well-taken.

The COA’s authority to conduct post-audit examinations on constitutional bodies granted fiscal
autonomy is provided under Section 2(1), Article IX-D of the 1987 Constitution, which states:

Section 2. (1) The Commission on Audit shall have the power, authority, and duty to examine, audit,
and settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of funds
and property, owned or held in trust by, or pertaining to, the Government, or any of its subdivisions,
agencies, or instrumentalities, including government-owned or controlled corporations with original
charters, and on a post-audit basis: (a) constitutional bodies, commissions and offices that have
been granted fiscal autonomy under this Constitution. emphasis ours

This authority, however, must be read not only in light of the Court’s fiscal autonomy, but also in
relation with the constitutional provisions on judicial independence and the existing jurisprudence
and Court rulings on these matters.

Separation of Powers and Judicial Independence

In Angara v. Electoral Commission,8 we explained the principle of separation of powers, as follows:

The separation of powers is a fundamental principle in our system of government. It obtains not
through express provision but by actual division in our Constitution. Each department of the
government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own
sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct
that the Constitution intended them to be absolutely unrestrained and independent of each other.
The Constitution has provided for an elaborate system of checks and balances to secure
coordination in the workings of the various departments of the government. x x x And the judiciary in
turn, with the Supreme Court as the final arbiter, effectively checks the other departments in the
exercise of its power to determine the law, and hence to declare executive and legislative acts void if
violative of the Constitution.9

The concept of the independence of the three branches of government, on the other hand, extends
from the notion that the powers of government must be divided to avoid concentration of these
powers in any one branch; the division, it is hoped, would avoid any single branch from lording its
power over the other branches or the citizenry.10 To achieve this purpose, the divided power must be
wielded by co-equal branches of government that are equally capable of independent action in
exercising their respective mandates; lack of independence would result in the inability of one
branch of government to check the arbitrary or self-interest assertions of another or others.11

Under the Judiciary’s unique circumstances, independence encompasses the idea that individual
judges can freely exercise their mandate to resolve justiciable disputes, while the judicial branch, as
a whole, should work in the discharge of its constitutional functions free of restraints and influence
from the other branches, save only for those imposed by the Constitution itself.12 Thus, judicial
independence can be "broken down into two distinct concepts: decisional independence and
institutional independence."13 Decisional independence "refers to a judge’s ability to render decisions
free from political or popular influence based solely on the individual facts and applicable law."14 On
the other hand, institutional independence "describes the separation of the judicial branch from the
executive and legislative branches of government."15 Simply put, institutional independence refers to
the "collective independence of the judiciary as a body."16

In the case In the Matter of the Allegations Contained in the Columns of Mr. Amado P. Macasaet
Published in Malaya Dated September 18, 19, 20 and 21, 2007,17 the Court delineated the
distinctions between the two concepts of judicial independence in the following manner:

One concept is individual judicial independence, which focuses on each particular judge and seeks
to insure his or her ability to decide cases with autonomy within the constraints of the law. A judge
has this kind of independence when he can do his job without having to hear – or at least without
having to take it seriously if he does hear – criticisms of his personal morality and fitness for judicial
office. The second concept is institutional judicial independence. It focuses on the independence of
the judiciary as a branch of government and protects judges as a class.

A truly independent judiciary is possible only when both concepts of independence are preserved -
wherein public confidence in the competence and integrity of the judiciary is maintained, and the
public accepts the legitimacy of judicial authority. An erosion of this confidence threatens the
maintenance of an independent Third Estate. italics and emphases ours Recognizing the vital role
that the Judiciary plays in our system of government as the sole repository of judicial power, with the
power to determine whether any act of any branch or instrumentality of the government is attended
with grave abuse of discretion,18 no less than the Constitution provides a number of safeguards to
ensure that judicial independence is protected and maintained.

The Constitution expressly prohibits Congress from depriving the Supreme Court of its jurisdiction,
as enumerated in Section 5, Article VII of the Constitution, or from passing a law that undermines the
security of tenure of the members of the judiciary.19 The Constitution also mandates that the judiciary
shall enjoy fiscal autonomy,20 and grants the Supreme Court administrative supervision over all courts
and judicial personnel. Jurisprudence21 has characterized administrative supervision as exclusive,
noting that only the Supreme Court can oversee the judges and court personnel's compliance with
all laws, rules and regulations. No other branch of government may intrude into this power, without
running afoul of the doctrine of separation of powers.22

The Constitution protects as well the salaries of the Justices and judges by prohibiting any decrease
in their salary during their continuance in office,23 and ensures their security of tenure by providing
that "Members of the Supreme Court and judges of lower courts shall hold office during good
behavior until they reach the age of seventy years or become incapacitated to discharge the duties
of their office."24 With these guarantees, justices and judges can administer justice undeterred by any
fear of reprisals brought on by their judicial action. They can act inspired solely by their knowledge of
the law and by the dictates of their conscience, free from the corrupting influence of base or
unworthy motives.25

All of these constitutional provisions were put in place to strengthen judicial independence, not only
by clearly stating the Court’s powers, but also by providing express limits on the power of the two
other branches of government to interfere with the Court’s affairs.

Fiscal Autonomy

One of the most important aspects of judicial independence is the constitutional grant of fiscal
autonomy. Just as the Executive may not prevent a judge from discharging his or her judicial duty
(for example, by physically preventing a court from holding its hearings) and just as the Legislature
may not enact laws removing all jurisdiction from courts,26 the courts may not be obstructed from their
freedom to use or dispose of their funds for purposes germane to judicial functions. While, as a
general proposition, the authority of legislatures to control the purse in the first instance is
unquestioned, any form of interference by the Legislative or the Executive on the Judiciary’s fiscal
autonomy amounts to an improper check on a co-equal branch of government. If the judicial branch
is to perform its primary function of adjudication, it must be able to command adequate resources for
that purpose. This authority to exercise (or to compel the exercise of) legislative power over the
national purse (which at first blush appears to be a violation of concepts of separateness and an
invasion of legislative autonomy) is necessary to maintain judicial independence27 and is expressly
provided for by the Constitution through the grant of fiscal autonomy under Section 3, Article VIII.
This provision states:

Section 3. The Judiciary shall enjoy fiscal autonomy. Appropriations for the Judiciary may not be
reduced by the legislature below the amount appropriated for the previous year and, after approval,
shall be automatically and regularly released.

In Bengzon v. Drilon,28 we had the opportunity to define the scope and extent of fiscal autonomy in
the following manner:

As envisioned in the Constitution, the fiscal autonomy enjoyed by the Judiciary, the Civil Service
Commission, the Commission on Audit, the Commission on Elections, and the Office of the
Ombudsman contemplates a guarantee of full flexibility to allocate and utilize their resources with the
wisdom and dispatch that their needs require. It recognizes the power and authority to levy, assess
and collect fees, fix rates of compensation not exceeding the highest rates authorized by law for
compensation and pay plans of the government and allocate and disburse such sums as may be
provided by law or prescribed by them in the course of the discharge of their functions.
Fiscal autonomy means freedom from outside control. If the Supreme Court says it needs 100
typewriters but DBM rules we need only 10 typewriters and sends its recommendations to Congress
without even informing us, the autonomy given by the Constitution becomes an empty and illusory
platitude.

The Judiciary, the Constitutional Commissions, and the Ombudsman must have the independence
and flexibility needed in the discharge of their constitutional duties. The imposition of restrictions and
constraints on the manner the independent constitutional offices allocate and utilize the funds
appropriated for their operations is anathema to fiscal autonomy and violative not only of the express
mandate of the Constitution but especially as regards the Supreme Court, of the independence and
separation of powers upon which the entire fabric of our constitutional system is based. In the
interest of comity and cooperation, the Supreme Court, Constitutional Commissions, and the
Ombudsman have so far limited their objections to constant reminders. We now agree with the
petitioners that this grant of autonomy should cease to be a meaningless provision.29 (emphases
ours)

In this cited case, the Court set aside President Corazon Aquino’s veto of particular provisions of the
General Appropriations Act for the Fiscal Year 1992 relating to the payment of the adjusted pensions
of retired justices of the Supreme Court and the Court of Appeals, on the basis of the Judiciary’s
constitutionally guaranteed independence and fiscal autonomy. The Court ruled:

In the case at bar, the veto of these specific provisions in the General Appropriations Act is
tantamount to dictating to the Judiciary how its funds should be utilized, which is clearly repugnant to
fiscal autonomy. The freedom of the Chief Justice to make adjustments in the utilization of the funds
appropriated from the expenditures of the judiciary, including the use of any savings from any
particular item to cover deficits or shortages in other items of the Judiciary is withheld. Pursuant to
the Constitutional mandate, the Judiciary must enjoy freedom in the disposition of the funds
allocated to it in the appropriations law. It knows its priorities just as it is aware of the fiscal restraints.
The Chief Justice must be given a free hand on how to augment appropriations where augmentation
is needed.30

The Court’s declarations in Bengzon make it clear that the grant of fiscal autonomy to the Judiciary
is more extensive than the mere automatic and regular release of its approved annual
appropriations;31 real fiscal autonomy covers the grant to the Judiciary of the authority to use and
dispose of its funds and properties at will, free from any outside control or interference.

Application to the Present Case

The Judiciary’s fiscal autonomy is realized through the actions of the Chief Justice, as its head, and
of the Supreme Court En Banc, in the exercise of administrative control and supervision of the courts
and its personnel. As the Court En Banc’s Resolution (dated March 23, 2004) in A.M. No. 03-12-01
reflects, the fiscal autonomy of the Judiciary serves as the basis in allowing the sale of the
Judiciary’s properties to retiring Justices of the Supreme Court and the appellate courts:

WHEREAS, by the constitutional mandate of fiscal autonomy as defined in Bengzon v. Drilon (G.R.
No. 103524, 15 April 1992, 208 SCRA 133, 150) the Judiciary has "full flexibility to allocate and
utilize (its) resources with the wisdom and dispatch that (its) needs require";

WHEREAS, the long-established tradition and practice of Justices or Members of appellate courts of
purchasing for sentimental reasons at retirement government properties they used during their
tenure has been recognized as a privilege enjoyed only by such government officials; and
WHEREAS, the exercise of such privilege needs regulation to the end that respect for sentiments
that a retiring Justice attaches to properties he or she officially used during his or her tenure should
be in consonance with the need for restraint in the utilization and disposition of government
resources.

By way of a long standing tradition, partly based on the intention to reward long and faithful service,
the sale to the retired Justices of specifically designated properties that they used during their
incumbency has been recognized both as a privilege and a benefit. This has become an established
practice within the Judiciary that even the COA has previously recognized.32 The En Banc Resolution
also deems the grant of the privilege as a form of additional retirement benefit that the Court can
grant its officials and employees in the exercise of its power of administrative supervision. Under this
administrative authority, the Court has the power to administer the Judiciary’s internal affairs, and
this includes the authority to handle and manage the retirement applications and entitlements of its
personnel as provided by law and by its own grants.33

Thus, under the guarantees of the Judiciary’s fiscal autonomy and its independence, the Chief
Justice and the Court En Banc determine and decide the who, what, where, when and how of the
privileges and benefits they extend to justices, judges, court officials and court personnel within the
parameters of the Court’s granted power; they determine the terms, conditions and restrictions of the
grant as grantor.

In the context of the grant now in issue, the use of the formula provided in CFAG Joint Resolution
No. 35 is a part of the Court’s exercise of its discretionary authority to determine the manner the
granted retirement privileges and benefits can be availed of. Any kind of interference on how these
retirement privileges and benefits are exercised and availed of, not only violates the fiscal autonomy
and independence of the Judiciary, but also encroaches upon the constitutional duty and privilege of
the Chief Justice and the Supreme Court En Banc to manage the Judiciary’s own affairs.

As a final point, we add that this view finds full support in the Government Accounting and Auditing
Manual (GAAM), Volume 1, particularly, Section 501 of Title 7, Chapter 3, which states:

Section 501. Authority or responsibility for property disposal/divestment. – The full and sole authority
and responsibility for the divestment and disposal of property and other assets owned by the
national government agencies or instrumentalities, local government units and government-owned
and/or controlled corporations and their subsidiaries shall be lodged in the heads of the
departments, bureaus, and offices of the national government, the local government units and the
governing bodies or managing heads of government-owned or controlled corporations and their
subsidiaries conformably to their respective corporate charters or articles of incorporation, who shall
constitute the appropriate committee or body to undertake the same. italics supplied; emphases ours

This provision clearly recognizes that the Chief Justice, as the head of the Judiciary, possesses the
full and sole authority and responsibility to divest and dispose of the properties and assets of the
Judiciary; as Head of Office, he determines the manner and the conditions of disposition, which in
this case relate to a benefit. As the usual practice of the Court, this authority is exercised by the
Chief Justice in consultation with the Court En Banc. However, whether exercised by the Chief
Justice or by the Supreme Court En Banc, the grant of such authority and discretion is unequivocal
and leaves no room for interpretations and insertions.

ACCORDINGLY, premises considered, the in-house computation of the appraisal value made by the
Property Division, Office of `Administrative Services, of the properties purchased by the retired Chief
Justice and Associate Justices of the Supreme Court, based on CFAG Joint Resolution No. 35 dated
April 23, 1997, as directed under the Court Resolution dated March 23, 2004 in A.M. No. 03-12-01,
is CONFIRMED to be legal and valid. Let the Commission on Audit be accordingly advised of this
Resolution for its guidance.

SO ORDERED.

A.M. No. 88-4-5433 April 15, 1988

IN RE FIRST INDORSEMET FROM HONORABLE RAUL M. GONZALEZ DATED 16 MARCH 1988

REQUESTING HONORABLE JUSTICE MARCELO B. FERNAN TO COMMENT ON AN
ANONYMOUS LETTER-COMPLAINT.

RESOLUTION

PER CURIAM:

The Court CONSIDERED the 1st Indorsement dated 16 March 1988 from Mr. Raul M. Gonzalez,
"Tanodbayan/Special; Prosecutor" forwarding to Mr. Justice Marcelo B. Fernan a "letter-complaint,
dated 14 December 1987 with enclosure of the Concerned Employees of the Supreme Court,"
together with a telegram of Miguel Cuenco, for "comment within ten (10) days from receipt hereof."
Mr. Justice Fernan had brought this 1st Indorsement to the attention of the Court en banc in view of
the important implications of policy raised by said 1st Indorsement.

The mentioned 1st Indorsement has two (2) attachments. First, an anonymous letter by "Concerned
Employees of the Supreme Court" addressed to Hon. Raul M. Gonzalez referring to charges for
disbarment brought by Mr. Miguel Cuenco against Mr. Justice Marcelo B. Fernan and asking Mr.
Gonzalez "to do something about this." The second attachment is a copy of a telegram from Mr.
Miguel Cuenco addressed to Hon. Raul M. Gonzalez, where Mr. Cuenco refers to pleadings he
apparently filed on 29 February 1988 with the Supreme Court in Administrative Case No. 3135,
which, in the opinion of Mr. Cuenco, made improper any "intervention" by Mr. Raul Gonzalez. Mr.
Cuenco, nonetheless, encourages Mr. Gonzalez "to file responsive pleading Supreme Court en banc
to comply with Petition Concerned Employees Supreme Court asking Tanodbayan's intervention.

The Court DIRECTED the Clerk of Court to FURNISH Mr. Raul M Gonzales a copy of the per curiam
Resolution, dated 17 February 1988 of the Court in Administrative Case No. 3135 entitled "Miguel
Cuenco v. Honorable Marcelo B. Fernan" in which Resolution, the Court Resolved to dismiss the
charges made by complaint Cuenco against Mr.Justice Fernan for utter lack of merit. In the same
Resolution, the Court Resolved to require complainant Cuenco to show cause why he should not be
administratively dealt with for making unfounded serious accusations against Mr. Justice Fernan.
Upon request of Mr. Cueco, the Court had granted him an extension of up to 30 March 1988, Mr.
Cuenco filed a pleading which appears to be an omnibus pleading relating to, inter alia,
Administrative Case No. 3135. Insofar as Administrative Case No. 3135 is concerned, the Court
treated this pleading as a Motion for Reconsideration. By a per curiam Resolution dated 15 April
1988, the Court denied with finality Mr Cuenco's Motion for Reconsideration.

It is important to underscore the rule of constitution law here involved. This principle may be
succinctly formulated in the following terms. A public officer who under the Constitution is required to
be a Member of the Philippine Bar as a qualification for the office held by him and who may be
removed from office only by impeachment, cannot be charged with disbarment during the
incumbency of such public officer. Further, such public officer, during his incumbency, cannot be
charged criminally before the Sandiganbayan or any other court with any offence which carries with
it the penalty of removal from office, or any penalty service of which would amount to removal from
office.

The Court dealt with this matter in its Resolution of 17 February 1988 in Administrative Case No.
3135 in the following terms:

There is another reason why the complaining for disbarment here must be
dismissed. Members of the Supreme Court must, under Article VIII (7) (1) of the
Constitution, be members of the Philippine Bar and may be removed from office only
by impeachment (Article XI [2], Constitution). To grant a complaint for disbarment of
a Member of the Court during the Member's incumbency, would in effect be to
circumbent and hence to run afoul of the constitutional mandate theat Members of
the Court may be removed from office only by impeachment for and conviction of
certain offenses listed in Article XI (2) of the Constitution. Precisely the same
situation exists in respect of the Ombudsman and his deputies (Article XI [8] in
relation to Article XI [2], Id.), a majority of the members of the Commission on
Elections (Article IX [C] [1] [1] in relation to Article XI [2], Id. and the members of the
Commission on Audit who are not certified public accountants (Article XI [D]
[1][1], Id.), all of whom are constitutionally required to be members of the Philippine
Bar. (Emphasis supplied)

This is not the first time the Court has had occasion to rule on this matter. In Lecaroz v.
Sandiganbayan, 1 the Court said:

The broad power of the New Constitution vests the respondent court with jurisdiction
over "public officers and employees, including those in government-owned or
controlled corporations." There are exceptions, however, like constitutional officers,
particularly those declared to be removed by impeachment. Section 2, Article XIII of
the 1973 Constitution provides:

Sec. 2 The President, the Members of the Supreme Court, and the
Members of the Constitutional Commissions shall be removed from
office on impeachment for, and conviction of, culpable violation of the
Constitution, treason, bribery, other high crimes, or graft and
corruption."

Thus, the above provision proscribes removal from office of the aforementioned
constitutional officers by any other method; otherwise, to allow a public officer who
may be removed solely by impeachment to be charged criminally while holding his
office, would be violative of the clear mandate of the fundamental law.

Chief Justice Enrique M. Fernando, in his authoritative dissertation on the New

Constitution, states that "judgement in cases of impeachment shall be limited to
removal from office and disqualification to hold any office of honor, trust, or profit
under the Republic of the Philippines, but the party convicted shall nevertheless be
liable and subject to prosecution trial, and punishment, in accordance with law. The
above provision is a reproduction of what was found in the 1935 Constitution. It is
quite apparent from the explicit character of the above provision that the effect of
impeachment is limited to the loss of position and disqualification to hold any office of
 honor, trust or profit under the Republic. It is equally manifest that the party this
convicted may be proceeded against, tried and thereafter punished in accordance
with law. There can be no clearer expression of the constitutional intent as to the
scope of the impeachment process (The Constitution f the Philippines, pp. 465-466)."
The clear implication is, the party convicted in the impeachment proceeding shall
nevertheless be liable and subject of prosecution, trial and punishment according to
law; and that if the same does not result in a conviction and the official is not thereby
removed, the filing of a criminal action "in accordance with law" may not prosper. 2

The provisions of the 1973 Constitution we referred to above in Lecaroz v. Sandiganbayan are
substantially reproduced in Article XI of the 1987 Constitution:

Sec. 2 The President, the Vice-President, the Members of the Supreme Court, the
Members of the Constitutional Commissions, and the Ombudsman may be removed
from office, on impeachment for, and conviction of, culpable violation of the
Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of
public trust. All other public officers and employees may be removed from office as
provided by law, but not by impeachment.

Sec. 3 xxx xxx xxx

(7) Judgment in cases of impeachment shall not extend further than removal from
office and disqualification to hold any office under the Republic of the Philippines, but
the party convicted shall nevertheless be liable and subject to prosecution, trial and
punishment according to law.

It is important to make clear that the Court is not here saying that it Members or the other
constitutional officers we referred to above are entitled to immunity from liability for possibly criminal
acts or for alleged violation of the Canons of Judicial Ethics or other supposed misbehavior. What
the Court is saying is that there is a fundamental procedural requirements that must be observed
before such liability may be determined and enforced. A Member of the Supreme Court must first be
removed from office via the constitutional route of impeachment under Sections 2 and 3 of Article XI
of the 1987 Constitution. Should the tenure of the Supreme Court Justice be thus terminated by
impeachment, he may then be held to answer either criminally or administratively (by disbarment
proceedings) for any wrong or misbehavior that may be proven against him in appropriate
proceedings.

The above rule rests on the fundamental principles of judicial independence and separation of
powers. The rule is important because judicial independence is important. Without the protection of
this rule, Members of the Supreme Court would be brought against them by unsuccessful litigants or
their lawyers or by other parties who, for any number of reasons might seek to affect the exercise of
judicial authority by the Court.

It follows from the foregoing that a fiscal or other prosecuting officer should forthwith and motu
proprio dismiss any charges brought against a Member of this Court. The remedy of a person with a
legitimate grievance is to file impeachment proceedings.

The Clerk of Court is hereby DIRECTED to serve a copy of this Resolution upon Hon. Raul M.
Gonzales and Mr Miguel Cuenco.

Teehankee, C.J., Yap, Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin,
Sarmiento, Cortes and Griño-Aquino, JJ., concur.
Fernan, J., took no part.

Guetierrez, J., J., is on leave.

G.R. No. 102781. April 22, 1993.

BONIFACIO SANZ MACEDA, Presiding Judge, Branch 12, Regional Trial Court, Antique, petitioner,
vs.
HON. OMBUDSMAN CONRADO M. VASQUEZ AND ATTY. NAPOLEON A. ABIERA, respondents.

Bonifacio Sanz Maceda for and in his own behalf.

Public Attorney's Office for private respondent.

SYLLABUS

1. REMEDIAL LAW; JURISDICTION; OFFICE OF THE OMBUDSMAN HAS JURISDICTION TO

INVESTIGATE OFFENSE COMMITTED BY JUDGE WHETHER OR NOT OFFENSE RELATES TO
OFFICIAL DUTIES; REASON. — Petitioner also contends that the Ombudsman has no jurisdiction
over said cases despite this Court's ruling in Orap vs. Sandiganbayan, since the offense charged
arose from the judge's performance of his official duties, which is under the control and supervision
of the Supreme Court . . . The Court disagrees with the first part of petitioner's basic argument.
There is nothing in the decision in Orap that would restrict it only to offenses committed by a judge
unrelated to his official duties. A judge who falsifies his certificate of service is administratively liable
to the Supreme Court for serious misconduct and inefficiency under Section 1, Rule 140 of the Rules
of Court, and criminally liable to the State under the Revised Penal Code for his felonious act.

2. ID.; ID.; ID.; JURISDICTION TO INVESTIGATE OFFENSE RELATED TO OFFICIAL DUTIES

SUBJECT TO PRIOR ADMINISTRATIVE ACTION TAKEN AGAINST JUDGE BY SUPREME
COURT; REASON. — However, We agree with petitioner that in the absence of any administrative
action taken against him by this Court with regard to his certificates of service, the investigation
being conducted by the Ombudsman encroaches into the Court's power of administrative
supervision over all courts and its personnel, in violation of the doctrine of separation of powers.

3. ID.; ID.; ID.; ID.; PROCEDURE TO BE OBSERVED BY OMBUDSMAN REGARDING

COMPLAINT AGAINST JUDGE OR OTHER COURT EMPLOYEE; PURPOSE. — Thus, the
Ombudsman should first refer the matter of petitioner's certificates of service to this Court for
determination of whether said certificates reflected the true status of his pending case load, as the
Court has the necessary records to make such a determination . . . In fine, where a criminal
complaint against a judge or other court employee arises from their administrative duties, the
Ombudsman must defer action on said complaint and refer the same to this Court for determination
whether said judge or court employee had acted within the scope of their administrative duties.

4. ID.; ID.; ID.; ID.; OMBUDSMAN CANNOT SUBPOENA SUPREME COURT AND ITS
PERSONNEL; REASON. — The Ombudsman cannot compel this Court, as one of the three
branches of government, to submit its records, or to allow its personnel to testify on this matter, as
suggested by public respondent Abiera in his affidavit-complaint. The rationale for the foregoing
pronouncement is evident in this case. Administratively, the question before Us is this: should a
judge, having been granted by this Court an extension of time to decide cases before him, report
these cases in his certificate of service? As this question had not yet been raised with, much less
resolved by, this Court, how could the Ombudsman resolve the present criminal complaint that
requires the resolution of said question?

DECISION

NOCON, J p:

The issue in this petition for certiorari with prayer for preliminary mandatory injunction and/or
restraining order is whether the Office of the Ombudsman could entertain a criminal complaint for the
alleged falsification of a judge's certification submitted to the Supreme Court, and assuming that it
can, whether a referral should be made first to the Supreme Court.

Petitioner Bonifacio Sanz Maceda, Presiding Judge of Branch 12 of the Regional Trial Court of
Antique, seeks the review of the following orders of the Office of the Ombudsman: (1) the Order
dated September 18, 1991 denying the ex-parte motion to refer to the Supreme Court filed by
petitioner; and (2) the Order dated November 22, 1951 denying petitioner's motion for
reconsideration and directing petitioner to file his counter-affidavit and other controverting evidences.

In his affidavit-complaint dated April 18, 1991 filed before the Office of the Ombudsman, respondent
Napoleon A. Abiera of the Public Attorney's Office alleged that petitioner had falsified his Certificate
of Service 1 dated February 6, 1989, by certifying "that all civil and criminal cases which have been
submitted for decision or determination for a period of 90 days have been determined and decided
on or before January 31, 1998," when in truth and in fact, petitioner knew that no decision had been
rendered in five (5) civil and ten (10) criminal cases that have been submitted for decision.
Respondent Abiera further alleged that petitioner similarly falsified his certificates of service for the
months of February, April, May, June, July and August, all in 1989; and the months beginning
January up to September 1990, or for a total of seventeen (17) months.

On the other hand, petitioner contends that he had been granted by this Court an extension of ninety
(90) days to decide the aforementioned cases.

Petitioner also contends that the Ombudsman has no jurisdiction over said case despite this Court's
ruling in Orap vs. Sandiganbayan, 2 since the offense charged arose from the judge's performance
of his official duties, which is under the control and supervision of the Supreme Court. Furthermore,
the investigation of the Ombudsman constitutes an encroachment into the Supreme Court's
constitutional duty of supervision over all inferior courts.

The Court disagrees with the first Part of petitioner's basic argument. There is nothing in the decision
in Orap that would restrict it only to offenses committed by a judge unrelated to his official duties. A
judge who falsifies his certificate of service is administratively liable to the Supreme Court for serious
misconduct and inefficiency under Section 1, Rule 140 of the Rules of Court, and criminally liable to
the State under the Revised Penal Code for his felonious act.

However, We agree with petitioner that in the absence of any administrative action taken against him
by this Court with regard to his certificates of service, the investigation being conducted by the
Ombudsman encroaches into the Court's power of administrative supervision over all courts and its
personnel, in violation of the doctrine of separation of powers.

Article VIII, section 6 of the 1987 Constitution exclusively vests in the Supreme Court administrative
supervision over all courts and court personnel, from the Presiding Justice of the Court of Appeals
down to the lowest municipal trial court clerk. By virtue of this power, it is only the Supreme Court
that can oversee the judges' and court personnel's compliance with all laws, and take the proper
administrative action against them if they commit any violation thereof. No other branch of
government may intrude into this power, without running afoul of the doctrine of separation of
powers.

The Ombudsman cannot justify its investigation of petitioner on the powers granted to it by the
Constitution, 3 for such a justification not only runs counter to the specific mandate of the
Constitution granting supervisory powers to the Supreme Court over all courts and their personnel,
but likewise undermines the independence of the judiciary.

Thus, the Ombudsman should first refer the matter of petitioner's certificates of service to this Court
for determination of whether said certificates reflected the true status of his pending case load, as
the Court has the necessary records to make such a determination. The Ombudsman cannot
compel this Court, as one of the three branches of government, to submit its records, or to allow its
personnel to testify on this matter, as suggested by public respondent Abiera in his affidavit-
complaint. 4

The rationale for the foregoing pronouncement is evident in this case. Administratively. the question
before Us is this: should a judge, having been granted by this Court an extension of time to decide
cases before him, report these cases in his certificate of service? As this question had not yet been
raised with, much less resolved by, this Court. how could the Ombudsman resolve the present
criminal complaint that requires the resolution of said question?

In fine, where a criminal complaint against a Judge or other court employee arises from their
administrative duties, the Ombudsman must defer action on said complaint and refer the same to
this Court for determination whether said Judge or court employee had acted within the scope of
their administrative duties.

WHEREFORE, the instant petition is hereby GRANTED. The Ombudsman is hereby directed to
dismiss the complaint filed by public respondent Atty. Napoleon A. Abiera and to refer the same to
this Court for appropriate action.

SO ORDERED.

Narvasa, C .J ., Cruz, Feliciano, Padilla, Bidin, Griño-Aquino, Regalado, Davide, Jr., Romero,
Bellosillo, Melo and Quiason, JJ ., concur.

Footnotes

1. New Judicial Form No. 86, Revised 1986.

2. L-50508-11, 139 SCRA 252 (1985).

3. The Order of September 18, 1991, in denying petitioner's ex-parte motion to refer the case to the
Supreme Court, cited Article XI, section 13 (1) and (2), which provides:

Sec. 13. The Office of the Ombudsman shall have the following powers, functions, and duties:

(1) Investigate on its own, or on compliant be any person, any act or omission of any public official,
employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or
inefficient.
(2) Direct, upon complaint or at it own instance, any public official or employee of the government, or
any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled
corporation with original charter, to perform and expedite any act or duty required by law, or to stop,
prevent, and correct any abuse or impropriety in the performance of duties.

4. Rollo, p. 19.

G.R. No. 137354 July 6, 2000

SALVADOR M. DE VERA, petitioner,

vs.
HON. BENJAMIN V. PELAYO, Presiding Judge, Branch 168, Regional Trial Court, Pasig City;
and EVALUATION AND INVESTIGATION BUREAU, OFFICE OF THE
OMBUDSMAN, respondents.

DECISION

PARDO, J.:

"It is said that a little learning is a dangerous thing; and he who acts as his own lawyer has a fool for
a client."

In Re: Joaquin Borromeo

241 SCRA 408 (1995)

The case is a petition for certiorari and mandamus1 assailing the Evaluation Report of the Evaluation
and Investigation Office, Office of the Ombudsman, dated October 2, 1998 referring petitioner’s
complaint to the Supreme Court and its Memorandum, dated January 4, 1999,2 denying petitioner’s
motion for reconsideration.

We state the relevant facts.

Petitioner is not a member of the bar. Possessing some awareness of legal principles and
procedures, he represents himself in this petition.

On August 28, 1996, petitioner instituted with the Regional Trial Court, Pasig City a special civil
action for certiorari, prohibition and mandamus to enjoin the municipal trial court from proceeding
with a complaint for ejectment against petitioner.3 When the Judge originally assigned to the case
inhibited himself, the case was re-raffled to respondent Judge Benjamin V. Pelayo.4

On July 9, 1998, the trial court denied petitioner’s application for a temporary restraining order.
Petitioner moved for reconsideration. The court denied the same on September 1, 1998.5

On September 23, 1998, petitioner filed with the Office of the Ombudsman an affidavit-
complaint6 against Judge Pelayo, accusing him of violating Articles 2067 and 2078 of the Revised
Penal Code and Republic Act No. 3019.9

On October 2, 1998, Associate Graft Investigation Officer, Erlinda S. Rojas submitted an Evaluation
Report recommending referral of petitioners’ complaint to the Supreme Court. Assistant
Ombudsman Abelardo L. Apotadera approved the recommendation.10 We quote the decretal portion
of the report:11
"FOREGOING CONSIDERED, and in accordance with the ruling in Maceda vs. Vasquez, 221 SCRA
464, it is respectfully recommended that the instant complaint be referred to the Supreme Court for
appropriate action. The same is hereby considered CLOSED and TERMINATED insofar as this
Office is concerned."

On October 13, 1998, the Office of the Ombudsman referred the case to the Court Administrator,
Supreme Court.12

On November 6, 1998, petitioner moved for the reconsideration of the Evaluation Report.

On January 4, 1999, the Ombudsman denied the motion for reconsideration.13

Hence, this petition.14

The issue is whether or not the Ombudsman has jurisdiction to entertain criminal charges filed
against a judge of the regional trial court in connection with his handling of cases before the court.

Petitioner criticizes the jurisprudence15 cited by the Office of the Ombudsman as erroneous and not
applicable to his complaint. He insists that since his complaint involved a criminal charge against a
judge, it was within the authority of the Ombudsman not the Supreme Court to resolve whether a
crime was committed and the judge prosecuted therefor.

The petition can not succeed.

We find no grave abuse of discretion committed by the Ombudsman. The Ombudsman did not
exercise his power in an arbitrary or despotic manner by reason of passion, prejudice or personal
hostility.16 There was no evasion of positive duty. Neither was there a virtual refusal to perform the
duty enjoined by law.17

We agree with the Solicitor General that the Ombudsman committed no grave abuse of discretion
warranting the writs prayed for.18 The issues have been settled in the case of In Re: Joaquin
Borromeo.19 There, we laid down the rule that before a civil or criminal action against a judge for a
violation of Art. 204 and 205 (knowingly rendering an unjust judgment or order) can be entertained,
there must first be "a final and authoritative judicial declaration" that the decision or order in question
is indeed "unjust." The pronouncement may result from either:20

(a).....an action of certiorari or prohibition in a higher court impugning the validity of the
judgment; or

(b).....an administrative proceeding in the Supreme Court against the judge precisely for
promulgating an unjust judgment or order.

Likewise, the determination of whether a judge has maliciously delayed the disposition of the case is
also an exclusive judicial function.21

"To repeat, no other entity or official of the Government, not the prosecution or investigation service
of any other branch, not any functionary thereof, has competence to review a judicial order or
decision -- whether final and executory or not -- and pronounce it erroneous so as to lay the basis for
a criminal or administrative complaint for rendering an unjust judgment or order. That
prerogative belongs to the courts alone (underscoring ours)."22
This having been said, we find that the Ombudsman acted in accordance with law and jurisprudence
when he referred the cases against Judge Pelayo to the Supreme Court for appropriate action.

WHEREFORE, there being no grave abuse of discretion amounting to lack or excess of jurisdiction
committed by the respondent, we DISMISS the petition and AFFIRM the Evaluation Report of the
Evaluation and Investigation Office, Office of the Ombudsman dated October 2, 1998 and its
memorandum, dated January 4, 1999, in toto.

No costs.

SO ORDERED.

G.R. No. 167916 August 26, 2008

SARAH P. AMPONG, petitioner,

vs.
CIVIL SERVICE COMMISSION, CSC-Regional Office No. 11, respondents.

DECISION

REYES R.T., J.:

CAN the Civil Service Commission (CSC) properly assume jurisdiction over administrative proceedings
against a judicial employee involving acts of dishonesty as a teacher, committed prior to her appointment
to the judiciary?

Before Us is a petition for review on certiorari assailing the Decision1 of the Court of Appeals (CA)
affirming the CSC’s exercise of administrative jurisdiction over petitioner.

The Facts

The following facts are uncontroverted:

On November 10, 1991, a Professional Board Examination for Teachers (PBET) 2 was held in Davao City.
A certain Evelyn Junio-Decir3 applied for and took the examination at Room 16, Kapitan Tomas
Monteverde Elementary School. She passed with a rating of 74.27%.4

At the time of the PBET examinations, petitioner Sarah P. Ampong (nee Navarra) and Decir were public
school teachers under the supervision of the Department of Education, Culture and Sports
(DECS).5 Later, on August 3, 1993, Ampong transferred to the Regional Trial Court (RTC) in Alabel,
Sarangani Province, where she was appointed as Court Interpreter III.

On July 5, 1994, a woman representing herself as Evelyn Decir went to the Civil Service Regional Office
(CSRO) No. XI, Davao City, to claim a copy of her PBET Certificate of Eligibility. During the course of the
transaction, the CSRO personnel noticed that the woman did not resemble the picture of the examinee in
the Picture Seat Plan (PSP). Upon further probing, it was confirmed that the person claiming the eligibility
was different from the one who took the examinations. It was petitioner Ampong who took and passed the
examinations under the name Evelyn Decir.
The CSRO conducted a preliminary investigation and determined the existence of a prima facie case
against Decir and Ampong for Dishonesty, Grave Misconduct and Conduct Prejudicial to the Best Interest
of the Service. On August 23, 1994, they were formally charged and required to file answers under oath.
The formal charge reads:

That sometime before the conduct of the November 10, 1991 Professional Board Examination for
Teachers (PBET), a certain Ms. Evelyn B. Junio (now Decir) took the said examination at Rm. 16
Kapitan Tomas Monteverde Elementary School, Davao City, with a passing rate of 74.27%; That
on July 5, 1994 she appeared before the CSC Region XI Office to get her Guro Certificate; That
upon verification, it was found out that the picture attached in the Picture Seat Plan, marked as
Annex "A" and "A-1," respectively, were not the same compared to the picture attached in the
CSC Form 212 of Evelyn Junio-Decir marked herein as annex "B," "B-1," respectively. There was
also a marked difference in the signatures affixed in the said annexes; That further investigations
revealed that it was the pictures of Ms. Sarah Navarra, wife of her husband’s first cousin, who
took the said examination in behalf of Ms. Evelyn Junio-Decir, a provisional teacher; That the said
act of Mesdames Decir and Navarra are acts of dishonesty and conduct prejudicial to the best
interest of the service; that in (sic) taking the CS examination for and in behalf of another
undermines the sanctity of the CS examinations; All these contrary to existing civil service laws
and regulations. (Emphasis supplied)

In her sworn statement dated November 3, 1994, Decir denied the charges against her. She reasoned
out that it must have been the examination proctor who pasted the wrong picture on the PSP and that her
signatures were different because she was still signing her maiden name at the time of the examination.
In her Answer, Decir contended that:

2. The same accusation is denied, the truth being:

a. When I took the Professional Board Examination for Teachers (PBET) in the year
1991, I handed my 1x1 I.D. picture to the proctor assigned in the examination room who
might have inadvertently pasted in the Seat Plan [the] wrong picture instead [of] my own
picture;

b. With respect to the marked difference in my signature both appearing in the aforesaid
Seat Plan and also with the Form 212, the disparity lies in that in the year 1991, when I
took the afroresaid examination, I was still sporting my maiden name Evelyn B. Junio in
order to coincide with all my pertinent supporting papers, like the special order (s.o.),
appointment and among others, purposely to take said communications. However,
immediately after taking the PBET Examination in 1991, I started using the full name of
Evelyn Junio-Decir.6

Even before filing an Answer, petitioner Ampong voluntarily appeared at the CSRO on February 2, 1995
and admitted to the wrongdoing. When reminded that she may avail herself of the services of counsel,
petitioner voluntarily waived said right.

On March 13, 1995, petitioner gave another admission in the following tenor:

Q: Now, what is then your intention in coming to this Region inasmuch as you are still intending
to file an answer to the formal charge?

A: I came here because I want to admit personally. So that I will not be coming here anymore. I
will submit my case for Resolution.

Q: So, you intend to waive your right for the formal hearing and you also admit orally on the
guilt of the charge on the Formal Charge dated August 24, 1994?
 A: Yes, Ma’am.

Q: What else do you want to tell the Commission?

A: x x x Inasmuch as I am already remorseful, I am repenting of the wrong that I have done. I

am hoping that the Commission can help x x x so that I will be given or granted another chance to
serve the government.

xxxx

Q: Now inasmuch as you have declared that you have admitted the guilt that you took the
examination for and in behalf of Evelyn Junio Decir, are you telling this to the Commission without
the assistance of the counsel or waiver of your right to be assisted by counsel.

A: Yes, Ma’am. I am waiving my right.7 (Emphasis supplied)

Petitioner reiterated her admission in her sworn Answer dated March 16, 1995:

3. That, during the commission of the act, I was still under the Department of Education, Culture
and Sports, as Teacher in-charge of San Miguel Primary School, Malungon North District, way
back in 1991, when the husband of Evelyn Junio-Decir, my husband’s cousin came to me and
persuaded me to take the examination in behalf of his wife to which I disagreed but he earnestly
begged so that I was convinced to agree because I pity his wife considering that she is an
immediate relative, and there was no monetary consideration involved in this neither a
compensatory reward for me, as I was overcome by their persuasion;

4. That, despite the fact that I was a teacher, I was not aware that the acts I was charged, is a
ground for disciplinary action and punishable by dismissal;

5. That I should not have conformed to this anomalous transaction considering that I was born in
a Christian family, and was brought up in the fear of Lord, and had been a consistent officer of the
Church Board, had been a religious leader for so many years, and had been the organizer of the
Music Festival of the Association of Evangelical Churches of Malungon, Sarangani Province, thus
I was devoted to church work and was known to be of good conduct; and that my friends and
acquaintances can vouch to that, but I was just forced by circumstances to agree to the spouses
Godfre and Evelyn Decir.8 (Emphasis added)

CSC Finding and Penalty

On March 21, 1996, the CSC found petitioner Ampong and Decir guilty of dishonesty, dismissing them
from the service. The dispositive part of the CSC resolution states:

WHEREFORE, the Commission hereby finds Evelyn J. Decir and Sarah P. Navarra guilty of
Dishonesty. Accordingly, they are meted the penalty of dismissal with all its accessory penalties.
The PBET rating of Decir is revoked.9

Petitioner moved for reconsideration, raising for the first time the issue of jurisdiction. 10 She argued that
the exclusive authority to discipline employees of the judiciary lies with the Supreme Court; that the CSC
acted with abuse of discretion when it continued to exercise jurisdiction despite her assumption of duty as
a judicial employee. She contended that at the time the case was instituted on August 23, 1994, the CSC
already lost jurisdiction over her. She was appointed as Interpreter III of the RTC, Branch 38, Alabel,
Sarangani Province on August 3, 1993.
The CSC denied the motion for reconsideration.11 According to the Commission, to allow petitioner to
evade administrative liability would be a mockery of the country’s administrative disciplinary system. It will
open the floodgates for others to escape prosecution by the mere expedient of joining another branch of
government. In upholding its jurisdiction over petitioner, the CSC differentiated between administrative
supervision exercised by the Supreme Court and administrative jurisdiction granted to the Commission
over all civil service employees:

Moreover, it must be pointed out that administrative supervision is distinct from administrative
jurisdiction. While it is true that this Commission does not have administrative supervision over
employees in the judiciary, it definitely has concurrent jurisdiction over them. Such jurisdiction
was conferred upon the Civil Service Commission pursuant to existing law specifically Section
12(11), Chapter 3, Book V of the Administrative Code of 1987 (Executive Order No. 292) which
provides as follows:

"(11) Hear and decide administrative cases instituted by or through it directly or on

appeal, including contested appointment, and review decisions and actions of its offices
and of the agencies attached to it x x x."

The fact that court personnel are under the administrative supervision of the Supreme Court does
not totally isolate them from the operations of the Civil Service Law. Appointments of all officials
and employees in the judiciary is governed by the Civil Service Law (Section 5(6), Article VIII,
1987 Constitution). (Emphasis supplied)

CA Disposition

Via petition for review under Rule 43, petitioner elevated the matter to the CA.12 She insisted that as a
judicial employee, it is the Supreme Court and not the CSC that has disciplinary jurisdiction over her.

In a Decision dated November 30, 2004,13 the CA denied the petition for lack of merit.

The CA noted that petitioner never raised the issue of jurisdiction until after the CSC ruled against her.
Rather, she willingly appeared before the commission, freely admitted her wrongdoing, and even
requested for clemency. Thus, she was estopped from questioning the Commission’s jurisdiction. The
appellate court opined that while lack of jurisdiction may be assailed at any stage, a party’s active
participation in the proceedings before a court, tribunal or body will estop such party from assailing its
jurisdiction.

The CA further ruled that a member of the judiciary may be under the jurisdiction of two different bodies.
As a public school teacher or a court interpreter, petitioner was part of the civil service, subject to its rules
and regulations. When she committed acts in violation of the Civil Service Law, the CSC was clothed with
administrative jurisdiction over her.

Issue

Petitioner, through this petition, assigns the lone error that:

The Honorable Court of Appeals-First Division decided a question of substance in a way not in
accord with law and jurisprudence, gravely erred in facts and in law, and has sanctioned such
departure and grave error because it ignored or was not aware of Garcia v. De la Peña, 229
SCRA 766 (1994) and Adm. Matter No. OCA I.P.I. 97-329-P (CSC v. Ampong) dated January 31,
2001, which reiterate the rule that exclusive authority to discipline employees of the
judiciary lies with the Supreme Court, in issuing the questioned decision and resolution; which
grave error warrant reversal of the questioned decision and resolution.14
Put simply, the issue boils down to whether the CSC has administrative jurisdiction over an employee of
the Judiciary for acts committed while said employee was still with the Executive or Education
Department.

Our Ruling

The answer to the question at the outset is in the negative but We rule against the petition on the ground
of estoppel.

It is true that the CSC has administrative jurisdiction over the civil service. As defined under the
Constitution and the Administrative Code, the civil service embraces every branch, agency, subdivision,
and instrumentality of the government, and government-owned or controlled corporations.15 Pursuant to
its administrative authority, the CSC is granted the power to "control, supervise, and coordinate the Civil
Service examinations."16 This authority grants to the CSC the right to take cognizance of any irregularity
or anomaly connected with the examinations.17

However, the Constitution provides that the Supreme Court is given exclusive administrative
supervision over all courts and judicial personnel.18 By virtue of this power, it is only the Supreme
Court that can oversee the judges’ and court personnel’s compliance with all laws, rules and regulations.
It may take the proper administrative action against them if they commit any violation. No other branch of
government may intrude into this power, without running afoul of the doctrine of separation of
powers.19 Thus, this Court ruled that the Ombudsman cannot justify its investigation of a judge on the
powers granted to it by the Constitution. It violates the specific mandate of the Constitution granting to the
Supreme Court supervisory powers over all courts and their personnel; it undermines the independence
of the judiciary.20

In Civil Service Commission v. Sta. Ana,21 this Court held that impersonating an examinee of a civil
service examination is an act of dishonesty. But because the offender involved a judicial employee under
the administrative supervision of the Supreme Court, the CSC filed the necessary charges before the
Office of the Court Administrator (OCA), a procedure which this Court validated.

A similar fate befell judicial personnel in Bartolata v. Julaton,22 involving judicial employees who also
impersonated civil service examinees. As in Sta. Ana, the CSC likewise filed the necessary charges
before the OCA because respondents were judicial employees. Finding respondents guilty of dishonesty
and meting the penalty of dismissal, this Court held that "respondents’ machinations reflect their
dishonesty and lack of integrity, rendering them unfit to maintain their positions as public servants and
employees of the judiciary."23

Compared to Sta. Ana and Bartolata, the present case involves a similar violation of the Civil Service Law
by a judicial employee. But this case is slightly different in that petitioner committed the
offense before her appointment to the judicial branch. At the time of commission, petitioner was a public
school teacher under the administrative supervision of the DECS and, in taking the civil service
examinations, under the CSC. Petitioner surreptitiously took the CSC-supervised PBET exam in place of
another person. When she did that, she became a party to cheating or dishonesty in a civil service-
supervised examination.

That she committed the dishonest act before she joined the RTC does not take her case out of the
administrative reach of the Supreme Court.

The bottom line is administrative jurisdiction over a court employee belongs to the Supreme
Court, regardless of whether the offense was committed before or after employment in the
judiciary.
Indeed, the standard procedure is for the CSC to bring its complaint against a judicial employee before
the OCA. Records show that the CSC did not adhere to this procedure in the present case.

However, We are constrained to uphold the ruling of the CSC based on the principle of estoppel. The
previous actions of petitioner have estopped her from attacking the jurisdiction of the CSC. A party who
has affirmed and invoked the jurisdiction of a court or tribunal exercising quasi-judicial functions to secure
an affirmative relief may not afterwards deny that same jurisdiction to escape a penalty. 24 As this Court
declared in Aquino v. Court of Appeals:25

In the interest of sound administration of justice, such practice cannot be tolerated. If we are to
sanction this argument, then all the proceedings had before the lower court and the Court of
Appeals while valid in all other respects would simply become useless. 26

Under the principle of estoppel, a party may not be permitted to adopt a different theory on appeal to
impugn the court’s jurisdiction.27 In Emin v. De Leon,28 this Court sustained the exercise of jurisdiction by
the CSC, while recognizing at the same time that original disciplinary jurisdiction over public school
teachers belongs to the appropriate committee created for the purpose as provided for under the Magna
Carta for Public School Teachers.29 It was there held that a party who fully participated in the proceedings
before the CSC and was accorded due process is estopped from subsequently attacking its jurisdiction.

Petitioner was given ample opportunity to present her side and adduce evidence in her defense before
the CSC. She filed with it her answer to the charges leveled against her. When the CSC found her guilty,
she moved for a reconsideration of the ruling. These circumstances all too clearly show that due process
was accorded to petitioner.

Petitioner’s admission of guilt stands. Apart from her full participation in the proceedings before the
CSC, petitioner admitted to the offense charged – that she impersonated Decir and took the PBET exam
in the latter’s place. We note that even before petitioner filed a written answer, she voluntarily went to the
CSC Regional Office and admitted to the charges against her. In the same breath, she waived her right to
the assistance of counsel. Her admission, among others, led the CSC to find her guilty of dishonesty,
meting out to her the penalty of dismissal.

Now, she assails said confession, arguing that it was given without aid of counsel. In police custodial
investigations, the assistance of counsel is necessary in order for an extra-judicial confession to be made
admissible in evidence against the accused in a criminal complaint. If assistance was waived, the waiver
should have been made with the assistance of counsel.30

But while a party’s right to the assistance of counsel is sacred in proceedings criminal in nature, there is
no such requirement in administrative proceedings. In Lumiqued v. Exevea,31 this Court ruled that a party
in an administrative inquiry may or may not be assisted by counsel. Moreover, the administrative body is
under no duty to provide the person with counsel because assistance of counsel is not an absolute
requirement.32

Petitioner’s admission was given freely. There was no compulsion, threat or intimidation. As found by the
CSC, petitioner’s admission was substantial enough to support a finding of guilt.

The CSC found petitioner guilty of dishonesty. It is categorized as "an act which includes the procurement
and/or use of fake/spurious civil service eligibility, the giving of assistance to ensure the commission or
procurement of the same, cheating, collusion, impersonation, or any other anomalous act which amounts
to any violation of the Civil Service examination."33 Petitioner impersonated Decir in the PBET exam, to
ensure that the latter would obtain a passing mark. By intentionally practicing a deception to secure a
passing mark, their acts undeniably involve dishonesty.34
This Court has defined dishonesty as the "(d)isposition to lie, cheat, deceive, or defraud;
untrustworthiness; lack of integrity; lack of honesty, probity or integrity in principle; lack of fairness and
straightforwardness; disposition to defraud, deceive or betray."35 Petitioner’s dishonest act as a civil
servant renders her unfit to be a judicial employee. Indeed, We take note that petitioner should not have
been appointed as a judicial employee had this Court been made aware of the cheating that she
committed in the civil service examinations. Be that as it may, petitioner’s present status as a judicial
employee is not a hindrance to her getting the penalty she deserves.

The conduct and behavior of everyone connected with an office charged with the dispensation of justice
is circumscribed with a heavy burden or responsibility. The image of a court, as a true temple of justice, is
mirrored in the conduct, official or otherwise, of the men and women who work thereat, from the judge to
the least and lowest of its personnel.36 As the Court held in another administrative case for dishonesty:

x x x Any act which diminishes or tends to diminish the faith of the people in the judiciary shall not
be countenanced. We have not hesitated to impose the utmost penalty of dismissal for even the
slightest breach of duty by, and the slightest irregularity in the conduct of, said officers and
employees, if so warranted. Such breach and irregularity detract from the dignity of the highest
court of the land and erode the faith of the people in the judiciary.

xxxx

As a final point, we take this opportunity to emphasize that no quibbling, much less hesitation or
circumvention, on the part of any employee to follow and conform to the rules and regulations
enunciated by this Court and the Commission on Civil Service, should be tolerated. The Court,
therefore, will not hesitate to rid its ranks of undesirables who undermine its efforts toward an
effective and efficient system of justice.37 (Emphasis added)

We will not tolerate dishonesty for the Judiciary expects the best from all its employees. 38 Hindi namin
papayagan ang pandaraya sapagkat inaasahan ng Hudikatura ang pinakamabuti sa lahat nitong
kawani.

WHEREFORE, the petition is DENIED for lack of merit.

SO ORDERED.
 EN BANC

G.R. Nos. 217126-27, November 10, 2015

CONCHITA CARPIO MORALES, IN HER CAPACITY AS THE OMBUDSMAN, Petitioner, v. COURT OF

APPEALS (SIXTH DIVISION) AND JEJOMAR ERWIN S. BINAY, JR., Respondents.

DECISION

PERLAS-BERNABE, J.:

"All government is a trust, every branch of government is a trust, and immemorially acknowledged so to
be[.]"1
ChanRobles Vi rtual awlib rary

The Case

Before the Court is a petition for certiorari and prohibition2 filed on March 25, 2015 by petitioner Conchita
Carpio Morales, in her capacity as the Ombudsman (Ombudsman), through the Office of the Solicitor
General (OSG), assailing: (a) the Resolution3 dated March 16, 2015 of public respondent the Court of
Appeals (CA) in CA-G.R. SP No. 139453, which granted private respondent Jejomar Erwin S. Binay, Jr.'s
(Binay, Jr.) prayer for the issuance of a temporary restraining order (TRO) against the implementation of
the Joint Order4 dated March 10, 20,15 of the Ombudsman in OMB-C-A-15-0058 to 0063 (preventive
suspension order) preventively suspending him and several other public officers and employees of the City
Government of Makati, for six (6) months without pay; and (b) the Resolution5 dated March 20, 2015 of the
CA, ordering the Ombudsman to comment on Binay, Jr.'s petition for contempt6 in CA-G.R. SP No.
139504.

Pursuant to the Resolution7 dated April 6, 2015, the CA issued a writ of preliminary injunction8 (WPI) in CA-
G.R. SP No. 139453 which further enjoined the implementation of the preventive suspension order,
prompting the Ombudsman to file a supplemental petition9 on April 13, 2015.

The Facts

On July 22, 2014, a complaint/affidavit10 was filed by Atty. Renato L. Bondal and Nicolas "Ching" Enciso VI
before the Office of the Ombudsman against Binay, Jr. and other public officers and employees of the City
Government of Makati (Binay, Jr., et al), accusing them of Plunder11 and violation of Republic Act No. (RA)
3019,12 otherwise known as "The Anti-Graft and Corrupt Practices Act," in connection with the five (5)
phases of the procurement and construction of the Makati City Hall Parking Building (Makati Parking
Building).13

On September 9, 2014, the Ombudsman constituted a Special Panel of Investigators14 to conduct a fact-
finding investigation, submit an investigation report, and file the necessary complaint, if warranted (1st
Special Panel).15 Pursuant to the Ombudsman's directive, on March 5, 2015, the 1st Special Panel filed a
complaint16 (OMB Complaint) against Binay, Jr., et al, charging them with six (6) administrative cases17 for
Grave Misconduct, Serious Dishonesty, and Conduct Prejudicial to the Best Interest of the Service, and six
(6) criminal cases18 for violation of Section 3 (e) of RA 3019, Malversation of Public Funds, and Falsification
of Public Documents (OMB Cases).19

As to Binay, Jr., the OMB Complaint alleged that he was involved in anomalous activities attending the
following procurement and construction phases of the Makati Parking Building project, committed during his
previous and present terms as City Mayor of Makati:

Binay, Jr.'s First Term (2010 to 2013)20

(a) On September 21, 2010, Binay, Jr. issued the Notice of Award21 for Phase III of the Makati Parking
Building project to Hilmarc's Construction Corporation (Hilmarc's), and consequently, executed the
corresponding contract22 on September 28, 2010,23 without the required publication and the lack of
architectural design,24 and approved the release of funds therefor in the following amounts as follows: (1)
P130,518,394.80 on December 15, 2010;25 (2) P134,470,659.64 on January 19, 2011;26 (3)
P92,775,202.27 on February 25, 2011;27 (4) P57,148,625.51 on March 28, 2011;28 (5) P40,908,750.61
on May 3, 2011;29 and (6) P106,672,761.90 on July 7, 2011;30
(b) On August 11, 2011, Binay, Jr. issued the Notice of Award31 for Phase IV of the Makati Parking Building
project to Hilmarc's, and consequently, executed the corresponding contract32 on August 18, 2011,33 without
the required publication and the lack of architectural design,34 and approved the release of funds therefor in
the following amounts as follows: (1) P182,325,538.97 on October 4, 2O11;35 (2) P173,132,606.91 on
October 28,2011;36 (3) P80,408,735.20 on December 12, 2011;37 (4) P62,878,291.81 on February 10,
2012;38 and (5) P59,639,167.90 on October 1, 2012;39

(c) On September 6, 2012, Binay, Jr. issued the Notice of Award40 for Phase V of the Makati Parking Building
project to Hilmarc's, and consequently, executed the corresponding contract41 on September 13,
2012,42 without the required publication and the lack of architectural design,43 and approved the release of
the funds therefor in the amounts of P32,398,220.0544 and P30,582,629.3045 on December 20, 2012; and

Binay, Jr.'s Second Term (2013 to 2016)46

(d) On July 3, 2013 and July 4, 2013, Binay, Jr. approved the release of funds for the remaining balance of
the September 13, 2012 contract with Hilmarc's for Phase V of the Makati Parking Building project in the
amount of P27,443,629.97;47 and

(e) On July 24, 2013, Binay, Jr. approved the release of funds for the remaining balance of the
contract48 with MANA Architecture & Interior Design Co. (MANA) for the design and architectural services
covering the Makati Parking Building project in the amount of P429,011.48.49

On March 6, 2015, the Ombudsman created another Special Panel of Investigators to conduct a preliminary
investigation and administrative adjudication on the OMB Cases (2nd Special Panel).50 Thereafter, on March
9, 2015, the 2nd Special Panel issued separate orders51 for each of the OMB Cases, requiring Binay, Jr., et
al. to file their respective counter-affidavits.52

Before Binay, Jr., et al.'s filing of their counter-affidavits, the Ombudsman, upon the recommendation of the
2nd Special Panel, issued on March 10, 2015, the subject preventive suspension order, placing Binay, Jr., et
al. under preventive suspension for not more than six (6) months without pay, during the pendency of the
OMB Cases.53 The Ombudsman ruled that the requisites for the preventive suspension of a public officer are
present,54 finding that: (a) the evidence of Binay, Jr., et al.'s guilt was strong given that (1) the losing
bidders and members of the Bids and Awards Committee of Makati City had attested to the irregularities
attending the Makati Parking Building project; (2) the documents on record negated the publication of bids;
and (3) the disbursement vouchers, checks, and official receipts showed the release of funds; and (b) (1)
Binay, Jr., et al. were administratively charged with Grave Misconduct, Serious Dishonesty, and Conduct
Prejudicial to the Best Interest of the Service; (2) said charges, if proven to be true, warrant removal from
public service under the Revised Rules on Administrative Cases in the Civil Service (RRACCS), and (3) Binay,
Jr., et al.'s respective positions give them access to public records and allow them to influence possible
witnesses; hence, their continued stay in office may prejudice the investigation relative to the OMB Cases
filed against them.55 Consequently, the Ombudsman directed the Department of Interior and Local
Government (DILG), through Secretary Manuel A. Roxas II (Secretary Roxas), to immediately implement
the preventive suspension order against Binay, Jr., et al., upon receipt of the same.56

On March 11, 2015, a copy of the preventive suspension order was sent to the Office of the City Mayor, and
received by Maricon Ausan, a member of Binay, Jr.'s staff.57

The Proceedings Before the CA

On even date,58 Binay, Jr. filed a petition for certiorari59 before the CA, docketed as CA-G.R. SP No.
139453, seeking the nullification of the preventive suspension order, and praying for the issuance of a TRO
and/or WPI to enjoin its implementation.60Primarily, Binay, Jr. argued that he could not be held
administratively liable for any anomalous activity attending any of the five (5) phases of the Makati
Parking Building project since: (a) Phases I and II were undertaken before he was elected Mayor of Makati
in 2010; and (b) Phases III to V transpired during his first term and that his re-election as City Mayor of
Makati for a second term effectively condoned his administrative liability therefor, if any, thus
rendering the administrative cases against him moot and academic.61In any event, Binay, Jr. claimed
that the Ombudsman's preventive suspension order failed to show that the evidence of guilt
presented against him is strong, maintaining that he did not participate in any of the purported
irregularities.62 In support of his prayer for injunctive relief, Binay, Jr. argued that he has a clear and
unmistakable right to hold public office, having won by landslide vote in the 2010 and 2013 elections, and
that, in view of the condonation doctrine, as well as the lack of evidence to sustain the charges against him,
his suspension from office would undeservedly deprive the electorate of the services of the person they have
conscientiously chosen and voted into office.63

On March 16, 2015, at around 8:24 a.m., Secretary Roxas caused the implementation of the preventive
suspension order through the DILG National Capital Region - Regional Director, Renato L. Brion, CESO III
(Director Brion), who posted a copy thereof on the wall of the Makati City Hall after failing to personally
serve the same on Binay, Jr. as the points of entry to the Makati City Hall were closed. At around 9:47 a.m.,
Assistant City Prosecutor of Makati Billy C. Evangelista administered the oath of office on Makati City Vice
Mayor Romulo V. Peña, Jr. (Peña, Jr.) who thereupon assumed office as Acting Mayor.64

At noon of the same day, the CA issued a Resolution65 (dated March 16, 2015), granting Binay, Jr.'s prayer
for a TRO,66 notwithstanding Pena, Jr.'s assumption of duties as Acting Mayor earlier that day.67 Citing the
case of Governor Garcia, Jr. v. CA,68 the CA found that it was more prudent on its part to issue a TRO in
view of the extreme urgency of the matter and seriousness of the issues raised, considering that if it were
established that the acts subject of the administrative cases against Binay, Jr. were all committed during his
prior term, then, applying the condonation doctrine, Binay, Jr.'s re-election meant that he can no longer be
administratively charged.69 The CA then directed the Ombudsman to comment on Binay, Jr.'s petition
for certiorari .70

On March 17, 2015, the Ombudsman manifested71 that the TRO did not state what act was being restrained
and that since the preventive suspension order had already been served and implemented, there was no
longer any act to restrain.72

On the same day, Binay, Jr. filed a petition for contempt,73 docketed as CA-G.R. SP No. 139504, accusing
Secretary Roxas, Director Brion, the officials of the Philippine National Police, and Pena, Jr. of deliberately
refusing to obey the CA, thereby allegedly impeding, obstructing, or degrading the administration of
justice.74 The Ombudsman and Department of Justice Secretary Leila M. De Lima were subsequently
impleaded as additional respondents upon Binay, Jr.'s filing of the amended and supplemental petition for
contempt75 (petition for contempt) on March 19, 2015.76 Among others, Binay, Jr. accused the Ombudsman
and other respondents therein for willfully and maliciously ignoring the TRO issued by the CA against the
preventive suspension order.77

In a Resolution78dated March 20, 2015, the CA ordered the consolidation of CA-G.R. SP No. 139453 and
CA-G.R. SP No. 139504, and, without necessarily giving due course to Binay, Jr.'s petition for
contempt, directed the Ombudsman to file her comment thereto.79 The cases were set for hearing of oral
arguments on March 30 and 31, 2015.80

The Proceedings Before the Court

Prior to the hearing of the oral arguments before the CA, or on March 25, 2015, the Ombudsman filed the
present petition before this Court, assailing the CA's March 16, 2015 Resolution, which granted Binay, Jr.'s
prayer for TRO in CA-G.R. SP No. 139453, and the March 20, 2015 Resolution directing her to file a
comment on Binay, Jr.'s petition for contempt in CA-G.R. SP No. 139504.81 The Ombudsman claims that: (a)
the CA had no jurisdiction to grant Binay, Jr.'s prayer for a TRO, citing Section 14 of RA 6770,82 or "The
Ombudsman Act of 1989," which states that no injunctive writ could be issued to delay the Ombudsman's
investigation unless there is prima facie evidence that the subject matter thereof is outside the latter's
jurisdiction;83 and (b) the CA's directive for the Ombudsman to comment on Binay, Jr.'s petition for
contempt is illegal and improper, considering that the Ombudsman is an impeachable officer, and therefore,
cannot be subjected to contempt proceedings.84

In his comment85 filed on April 6, 2015, Binay, Jr. argues that Section 1, Article VIII of the 1987 Constitution
specifically grants the CA judicial power to review acts of any branch or instrumentality of government,
including the Office of the Ombudsman, in case of grave abuse of discretion amounting to lack or excess of
jurisdiction, which he asserts was committed in this case when said office issued the preventive suspension
order against him.86 Binay, Jr. posits that it was incumbent upon the Ombudsman to1 have been apprised of
the condonation doctrine as this would have weighed heavily in determining whether there was strong
evidence to warrant the issuance of the preventive suspension order.87 In this relation, Binay, Jr. maintains
that the CA correctly enjoined the implementation of the preventive suspension order given his clear and
unmistakable right to public office, and that it is clear that he could not be held administratively liable for
any of the charges against him since his subsequent re-election in 2013 operated as a condonation of any
administrative offenses he may have committed during his previous term.88 As regards the CA's order for
the Ombudsman to comment on his petition for contempt, Binay, Jr. submits that while the Ombudsman is
indeed an impeachable officer and, hence, cannot be removed from office except by way of impeachment,
an action for contempt imposes the penalty of fine and imprisonment, without necessarily resulting in
removal from office. Thus, the fact that the Ombudsman is an impeachable officer should not deprive the CA
of its inherent power to punish contempt.89

Meanwhile, the CA issued a Resolution90 dated April 6, 2015, after the oral arguments before it were
held,91 granting Binay, Jr.'s prayer for a WPI, which further enjoined the implementation of the preventive
suspension order. In so ruling, the CA found that Binay, Jr. has an ostensible right to the final relief prayed
for, namely, the nullification of the preventive suspension order, in view of the condonation doctrine,
citing Aguinaldo v. Santos.92 Particularly, it found that the Ombudsman can hardly impose preventive
suspension against Binay, Jr. given that his re-election in 2013 as City Mayor of Makati condoned any
administrative liability arising from anomalous activities relative to the Makati Parking Building project from
2007 to 2013.93 In this regard, the CA added that, although there were acts which were apparently
committed by Binay, Jr. beyond his first term — namely, the alleged payments on July 3, July 4, and July
24, 2013,94 corresponding to the services of Hillmarc's and MANA - still, Binay, Jr. cannot be held
administratively liable therefor based on the cases of Salalima v. Guingona, Jr.,95 and Mayor Garcia v.
Mojica96 wherein the condonation doctrine was still applied by the Court although the payments were made
after the official's re-election, reasoning that the payments were merely effected pursuant to contracts
executed before said re-election.97 To this, the CA added that there was no concrete evidence of Binay, Jr.'s
participation for the alleged payments made on July 3, 4, and 24, 2013.98

In view of the CA's supervening issuance of a WPI pursuant to its April 6, 2015 Resolution, the Ombudsman
filed a supplemental petition99 before this Court, arguing that the condonation doctrine is irrelevant to the
determination of whether the evidence of guilt is strong for purposes of issuing preventive suspension
orders. The Ombudsman also maintained that a reliance on the condonation doctrine is a matter of defense,
which should have been raised by Binay, Jr. before it during the administrative proceedings, and that, at any
rate, there is no condonation because Binay, Jr. committed acts subject of the OMB Complaint after his re-
election in 2013.100

On April 14 and 21, 2015,101 the Court conducted hearings for the oral arguments of the parties. Thereafter,
they were required to file their respective memoranda.102 In compliance thereto, the Ombudsman filed her
Memorandum103 on May 20, 2015, while Binay, Jr. submitted his Memorandum the following day.104

Pursuant to a Resolution105 dated June 16, 2015, the Court directed the parties to comment on each other's
memoranda, and the OSG to comment on the Ombudsman's Memorandum, all within ten (10) days from
receipt of the notice.

On July 15, 2015, both parties filed their respective comments to each other's memoranda.106 Meanwhile, on
July 16, 2015, the OSG filed its Manifestation In Lieu of Comment,107 simply stating that it was mutually
agreed upon that the Office of the Ombudsman would file its Memorandum, consistent with its desire to
state its "institutional position."108 In her Memorandum and Comment to Binay, Jr.'s Memorandum, the
Ombudsman pleaded, among others, that this Court abandon the condonation doctrine.109 In view of the
foregoing, the case was deemed submitted for resolution. chanrob leslaw

The Issues Before the Court

Based on the parties' respective pleadings, and as raised during the oral arguments conducted before this
Court, the main issues to be resolved in seriatim are as follows:

I. Whether or not the present petition, and not motions for reconsideration of the assailed CA
issuances in CA-G.R. SP No. 139453 and CA-G.R. SP No. 139504, is the Ombudsman's
plain, speedy, and adequate remedy; c ralawlawli bra ry

II. Whether or not the CA has subject matter jurisdiction over the main petition for certiorari in
CA-G.R. SP No. 139453; cralawlawli bra ry

III. Whether or not the CA has subject matter jurisdiction to issue a TRO and/or WPI enjoining
the implementation of a preventive suspension order issued by the Ombudsman; cralawlawlibra ry

IV. Whether or not the CA gravely abused its discretion in issuing the TRO and eventually, the
WPI in CA-G.R. SP No. 139453 enjoining the implementation of the preventive suspension
order against Binay, Jr. based on the condonation doctrine; and
 V. Whether or not the CA's directive for the Ombudsman to ' comment on Binay, Jr.'s petition
for contempt in CA- G.R. SP No. 139504 is improper and illegal.

The Ruling of the Court

The petition is partly meritorious. chan robles law

I.

A common requirement to both a petition for certiorari and a petition for prohibition taken under Rule 65 of
the 1997 Rules of Civil Procedure is that the petitioner has no other plain, speedy, and adequate remedy in
the ordinary course of law. Sections 1 and 2 thereof provide:

Section 1. Petition for certiorari. - When any tribunal, board or officer exercising judicial or quasi-judicial
functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy, and adequate
remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the
proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying
the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may
require.

xxxx

Section 2. Petition for prohibition. - When the proceedings of any tribunal, corporation, board, officer or
person, whether exercising judicial, quasi-judicial or ministerial functions, are without or in excess of its or
his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no
appeal, or any other plain, speedy, and adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the proper court, alleging the facts r with certainty and
praying that judgment be rendered commanding the respondent to desist from further proceedings in the
action or matter specified therein, or otherwise granting such incidental reliefs as law and justice may
require.

x x x x (Emphases supplied)

Hence, as a general rule, a motion for reconsideration must first be filed with the lower court prior to
resorting to the extraordinary remedy of certiorari or prohibition since a motion for reconsideration may still
be considered as a plain, speedy, and adequate remedy in the ordinary course of law. The rationale for the
pre-requisite is to grant an opportunity for the lower court or agency to correct any actual or perceived error
attributed to it by the re-examination of the legal and factual circumstances of the case.110

Jurisprudence states that "[i]t is [the] inadequacy, [and] not the mere absence of all other legal remedies
and the danger of failure of justice without the writ, that must usually determine the propriety
of certiorari [or prohibition]. A remedy is plain, speedy[,] and adequate if it will promptly relieve the
petitioner from the injurious effects of the judgment, order, or resolution of the lower court or agency, x x
x."111

In this light, certain exceptions were crafted to the general rule requiring a prior motion for reconsideration
before the filing of a petition for certiorari, which exceptions also apply to a petition for prohibition.112 These
are: (a) where the order is a patent nullity, as where the court a quo has no jurisdiction; (b) where the
questions raised in the certiorari proceedings have been duly raised and passed upon by the lower court, or
are the same as those raised and passed upon in the lower court; (c) where there is an urgent necessity for
the resolution of the question and any further delay would prejudice the interests of the Government or of
the petitioner or the subject matter of the action is perishable; (d) where, under the circumstances, a
motion for reconsideration would be useless; (e) where petitioner was deprived of due process and there is
extreme urgency for relief; (f) where, in a criminal case, relief from an order of arrest is urgent and the
granting of such relief by the trial court is improbable; (g) where the proceedings in the lower court are a
nullity for lack of due process; (h) where the proceedings were ex parte or in which the petitioner had no
opportunity to object; and (i) where the issue raised is one purely of law or where public interest is
involved.113
In this case, it is ineluctably clear that the above-highlighted exceptions attend since, for the first time, the
question on the authority of the CA - and of this Court, for that matter - to enjoin the implementation of a
preventive suspension order issued by the Office of the Ombudsman is put to the fore. This case tests the
constitutional and statutory limits of the fundamental powers of key government institutions - namely, the
Office of the Ombudsman, the Legislature, and the Judiciary - and hence, involves an issue of
transcendental public importance that demands no less than a careful but expeditious resolution. Also raised
is the equally important issue on the propriety of the continuous application of the condonation doctrine as
invoked by a public officer who desires exculpation from administrative liability. As such, the Ombudsman's
direct resort to certiorari and prohibition before this Court, notwithstanding her failure to move for the prior
reconsideration of the assailed issuances in CA-G.R. SP No. 139453 and CA-G.R. SP No. 139504 before the
CA, is justified.
chanrob leslaw

II.

Albeit raised for the first time by the Ombudsman in her Memorandum,114 it is nonetheless proper to resolve
the issue on the CA's lack of subject matter jurisdiction over the main petition for certiorari in CA-G.R. SP
No. 139453, in view of the well-established rule that a court's jurisdiction over the subject matter may be
raised at any stage of the proceedings. The rationale is that subject matter jurisdiction is conferred by law,
and the lack of it affects the very authority of the court to take cognizance of and to render judgment on the
action.115 Hence, it should be preliminarily determined if the CA indeed had subject matter jurisdiction over
the main CA-G.R. SP No. 139453 petition, as the same determines the validity of all subsequent proceedings
relative thereto. It is noteworthy to point out that Binay, Jr. was given the opportunity by this Court to be
heard on this issue,116 as he, in fact, duly submitted his opposition through his comment to the
Ombudsman's Memorandum.117 That being said, the Court perceives no reasonable objection against ruling
on this issue.

The Ombudsman's argument against the CA's lack of subject matter jurisdiction over the main petition, and
her corollary prayer for its dismissal, is based on her interpretation of Section 14, RA 6770, or the
Ombudsman Act,118 which reads in full:

Section 14. Restrictions. - No writ of injunction shall be issued by any court to delay an investigation being
conducted by the Ombudsman under this Act, unless there is a prima facie evidence that the subject matter
of the investigation is outside the jurisdiction of the Office of the Ombudsman.

No court shall hear any appeal or application for remedy against the decision or findings of the Ombudsman,
except the Supreme Court, on pure question of law.

The subject provision may be dissected into two (2) parts.

The first paragraph of Section 14, RA 6770 is a prohibition against any court (except the Supreme
Court119) from issuing a writ of injunction to delay an investigation being conducted by the Office of the
Ombudsman. Generally speaking, "[injunction is a judicial writ, process or proceeding whereby a party is
ordered to do or refrain from doing a certain act. It may be the main action or merely a provisional remedy
for and as an incident in the main action."120 Considering the textual qualifier "to delay," which connotes a
suspension of an action while the main case remains pending, the "writ of injunction" mentioned in this
paragraph could only refer to injunctions of the provisional kind, consistent with the nature of a provisional
injunctive relief.

The exception to the no injunction policy is when there is prima facie evidence that the subject matter of the
investigation is outside the office's jurisdiction. The Office of the Ombudsman has disciplinary authority over
all elective and appointive officials of the government and its subdivisions, instrumentalities, and agencies,
with the exception only of impeachable officers, Members of Congress, and the Judiciary.121 Nonetheless, the
Ombudsman retains the power to investigate any serious misconduct in office allegedly committed by
officials removable by impeachment, for the purpose of filing a verified complaint for impeachment, if
warranted.122 Note that the Ombudsman has concurrent jurisdiction over certain administrative cases which
are within the jurisdiction of the regular courts or administrative agencies, but has primary jurisdiction to
investigate any act or omission of a public officer or employee who is under the jurisdiction of the
Sandiganbayan.123

On the other hand, the second paragraph of Section 14, RA 6770 provides that no appeal or application
for remedy may be heard against the decision or findings of the Ombudsman, with the exception of the
Supreme Court on pure questions of law. This paragraph, which the Ombudsman particularly relies on in
arguing that the CA had no jurisdiction over the main CA-G.R. SP No. 139453 petition, as it is supposedly
this Court which has the sole jurisdiction to conduct a judicial review of its decisions or findings, is vague for
two (2) reasons: (1) it is unclear what the phrase "application for remedy" or the word "findings" refers to;
and (2) it does not specify what procedural remedy is solely allowable to this Court, save that the same be
taken only against a pure question of law. The task then, is to apply the relevant principles of statutory
construction to resolve the ambiguity.

"The underlying principle of all construction is that the intent of the legislature should be sought in the
words employed to express it, and that when found[,] it should be made to govern, x x x. If the words of
the law seem to be of doubtful import, it may then perhaps become necessary to look beyond them in order
to ascertain what was in the legislative mind at the time the law was enacted; what the circumstances were,
under which the action was taken; what evil, if any, was meant to be redressed; x x x [a]nd where the law
has contemporaneously been put into operation, and in doing so a construction has necessarily been put
upon it, this construction, especially if followed for some considerable period, is entitled to great respect, as
being very probably a true expression of the legislative purpose, and is not lightly to be overruled, although
it is not conclusive."124

As an aid to construction, courts may avail themselves of the actual proceedings of the legislative body in
interpreting a statute of doubtful meaning. In case of doubt as to what a provision of a statute means, the
meaning put to the provision during the legislative deliberations may be adopted,125 albeit not controlling in
the interpretation of the law.126

A. The Senate deliberations cited by the

Ombudsman do not pertain to the second
paragraph of Section 14, RA 6770.

The Ombudsman submits that the legislative intent behind Section 14, RA 6770, particularly on the matter
of judicial review of her office's decisions or findings, is supposedly clear from the following Senate
deliberations:127

Senator [Edgardo J.] Angara, x x x. On page 15, Mr. President, line 14, after the phrase "petition for"
delete the word "review" and in lieu thereof, insert the word CERTIORARI. So that, review or appeal from
the decision of the Ombudsman would only be taken not on a petition for review, but on certiorari.

The President [Jovito R. Salonga]. What is the practical effect of that? Will it be more difficult to
reverse the decision under review?

Senator Angara. It has two practical effect ways, Mr. President. First is that the findings of facts of the
Ombudsman would be almost conclusive if supported by substantial evidence. Second, we would
not unnecessarily clog the docket of the Supreme Court. So, it in effect will be a very strict appeal
procedure.

xxxx

Senator [Teofisto T.] Guingona, [Jr.]. Does this mean that, for example, if there are exhaustive
remedies available to a respondent, the respondent himself has the right to exhaust the administrative
remedies available to him?

Senator Angara. Yes, Mr. President, that is correct.

Senator Guingona. And he himself may cut the proceeding short by appealing to the Supreme Court
only on certiorari ?

Senator Angara. On question of law, yes.

Senator Guingona. And no other remedy is available to him?

Senator Angara. Going to the Supreme Court, Mr. President?

Senator Guingona. Yes. What I mean to say is, at what stage, for example, if he is a presidential
appointee who is the respondent, if there is f no certiorari available, is the respondent given the right to
exhaust his administrative remedies first before the Ombudsman can take the appropriate action?

Senator Angara. Yes, Mr. President, because we do not intend to change the administrative law principle
that before one can go to court, he must exhaust all administrative remedies xxx available to him before he
goes and seeks judicial review.

xxxx

Senator [Neptali A.] Gonzales. What is the purpose of the Committee in changing the method of
appeal from one of a petition for review to a petition for certiorari ?

Senator Angara. To make it consistent, Mr. President, with the provision here in the bill to the
effect that the finding of facts of the Ombudsman is conclusive if supported by substantial
evidence.

Senator Gonzales. A statement has been made by the Honorable Presiding Officer to which I concur, that
in an appeal by certiorari , the appeal is more difficult. Because in certiorari it is a matter of
discretion on the part of the court, whether to give due course to the petition or dismiss it
outright. Is that not correct, Mr. President?

Senator Angara. That is absolutely correct, Mr. President

Senator Gonzales. And in a petition for certiorari , the issue is limited to whether or not the
Ombudsman here has acted without jurisdiction and has committed a grave abuse of discretion
amounting to lack of jurisdiction. Is that not the consequence, Mr. President.

Senator Angara. That is correct, Mr. President.

Senator Gonzales. And it is, therefore, in this sense that the intention of the Committee is to make it
harder to have a judicial review, but should be limited only to cases that I have enumerated.

Senator Angara. Yes, Mr. President.

Senator Gonzales. I think, Mr. President, our Supreme Court has made a distinction between a petition for
review and a petition for certiorari ; because before, under the 1935 Constitution appeal from any order,
ruling or decision of the COMELEC shall be by means of review. But under the Constitution it is now
by certiorari and the Supreme Court said that by this change, the court exercising judicial review will not
inquire into the facts, into the evidence, because we will not go deeply by way of review into the evidence
on record but its authority will be limited to a determination of whether the administrative agency acted
without, or in excess of, jurisdiction, or committed a grave abuse of discretion. So, I assume that that is the
purpose of this amendment, Mr. President.

Senator Angara. The distinguished Gentleman has stated it so well.

Senator Gonzales. I just want to put that in the Record. Senator Angara. It is very well stated, Mr.
President.

xxxx

The President. It is evident that there must be some final authority to render decisions. Should it
be the Ombudsman or should it be the Supreme Court?

Senator Angara. As I understand it, under our scheme of government, Mr. President, it is and has to be
the Supreme Court to make the final determination.

The President. Then if that is so, we have to modify Section 17.

Senator Angara. That is why, Mr. President, some of our Colleagues have made a reservation to introduce
an appropriate change during the period of Individual Amendments.

xxxx
The President. All right. Is there any objection to the amendment inserting the word CERTIORARI instead
of "review"? [Silence] Hearing none, the same is approved.128

Upon an assiduous scrutiny of these deliberations, the Court is, however, unconvinced that the provision
debated on was Section 14, RA 6770, as the Ombudsman invokes. Note that the exchange begins with the
suggestion of Senator Angara to delete the word "review" that comes after the phrase "petition for review"
and, in its stead, insert the word "certiorari" so that the "review or appeal from the decision of the
Ombudsman would not only be taken on a petition for review, but on certiorari" The ensuing exchange
between Senators Gonzales and Angara then dwells on the purpose of changing the method of review from
one of a petition for review to a petition for certiorari - that is, to make "the appeal x x x more difficult."
Ultimately, the amendment to the change in wording, from "petition for review" to "petition for certiorari"
was approved.

Noticeably, these references to a "petition for review" and the proposed "petition for certiorari" are nowhere
to be found in the text of Section 14, RA 6770. In fact, it was earlier mentioned that this provision,
particularly its second paragraph, does not indicate what specific procedural remedy one should take in
assailing a decision or finding of the Ombudsman; it only reveals that the remedy be taken to this Court
based on pure questions of law. More so, it was even commented upon during the oral arguments of this
case129 that there was no debate or clarification made on the current formulation of the second paragraph of
Section 14, RA 6770 per the available excerpts of the Senate deliberations. In any case, at least for the
above-cited deliberations, the Court finds no adequate support to sustain the Ombudsman's entreaty that
the CA had no subject matter jurisdiction over the main CA-G.R. SP No. 139453 petition.

On the contrary, it actually makes greater sense to posit that these deliberations refer to another
Ombudsman Act provision, namely Section 27, RA 6770. This is because the latter textually reflects the
approval of Senator Angara's suggested amendment, i.e., that the Ombudsman's decision or finding may be
assailed in a petition for certiorari to this Court (fourth paragraph), and further, his comment on the
conclusive nature of the factual findings of the Ombudsman, if supported by substantial evidence (third
paragraph):

Section 27. Effectivity and Finality of Decisions.— (1) All provisionary orders of the Office of the Ombudsman
are immediately effective and executory.

A motion for reconsideration of any order, directive or decision of the Office of the Ombudsman must be
filed within five (5) days after receipt of written notice and shall be entertained only on any of the following
grounds: chanRoble svi rtual Lawli bra ry

(1) New evidence has been discovered which materially affects the order, directive or decision; c ralawlaw lib rary

(2) Errors of law or irregularities have been committed prejudicial to the interest of the movant. The motion
for reconsideration shall be resolved within three (3) days from filing: Provided, That only one motion for
reconsideration shall be entertained. ChanRobles Vi rtua lawlib rary

Findings of fact by the Office of the Ombudsman when supported by substantial evidence are conclusive.
Any order, directive or decision imposing the penalty of public censure or reprimand, suspension of not more
than one (1) month's salary shall be final and unappealable.

In all administrative disciplinary cases, orders, directives, or decisions of the Office of the
Ombudsman may be appealed to the Supreme Court by filing a petition for certiorari within ten
(10) days from receipt of the written notice of the order, directive or decision or denial of the
motion for reconsideration in accordance with Rule 45 of the Rules of Court.

The above rules may be amended or modified by the Office of the ' Ombudsman as the interest of justice
may require. (Emphasis and underscoring supplied)

At first blush, it appears that Section 27, RA 6770 is equally ambiguous in stating that a "petition
for certiorari" should be taken in accordance with Rule 45 of the Rules of Court, as it is well-known that
under the present 1997 Rules of Civil Procedure, petitions for certiorari are governed by Rule 65 of the said
Rules. However, it should be discerned that the Ombudsman Act was passed way back in 1989130 and,
hence, before the advent of the 1997 Rules of Civil Procedure.131 At that time, the governing 1964 Rules of
Court,132 consistent with Section 27, RA 6770, referred to the appeal taken thereunder as a petition
for certiorari , thus possibly explaining the remedy's textual denomination, at least in the provision's final
approved version:
 RULE 45
Appeal from Court of Appeals to Supreme Court

SECTION 1. Filing of Petition with Supreme Court. - A party may appeal by certiorari , from a judgment of
the Court of Appeals, by filing with the Supreme Court a petition for certiorari , within fifteen (15) days
from notice of judgment or of the denial of his motion for reconsideration filed in due time, and paying at
the same time, to the clerk of said court the corresponding docketing fee. The petition shall not be acted
upon without proof of service of a copy thereof to the Court of Appeals. (Emphasis supplied)

B. Construing the second paragraph of

Section 14, RA 6770.

The Senate deliberations' lack of discussion on the second paragraph of Section 14, RA 6770
notwithstanding, the other principles of statutory construction can apply to ascertain the meaning of the
provision.

To recount, the second paragraph of Section 14, RA 6770 states that "[n]o court shall hear any appeal
or application for remedy against the decision or findings of the Ombudsman, except the
Supreme Court, on pure question of law." ; cralawlawli bra ry

As a general rule, the second paragraph of Section 14, RA 6770 bans the whole range of remedies
against issuances of the Ombudsman, by prohibiting: (a) an appeal against any decision or finding of
the Ombudsman, and (b) "any application of remedy" (subject to the exception below) against the same.
To clarify, the phrase "application for remedy," being a generally worded provision, and being separated
from the term "appeal" by the disjunctive "or",133 refers to any remedy (whether taken mainly or
provisionally), except an appeal, following the maxim generalia verba sunt generaliter intelligenda: general
words are to be understood in a general sense.134 By the same principle, the word "findings," which is also
separated from the word "decision" by the disjunctive "or", would therefore refer to any finding made by the
Ombudsman (whether final or provisional), except a decision.

The subject provision, however, crafts an exception to the foregoing general rule. While the specific
procedural vehicle is not explicit from its text, it is fairly deducible that the second paragraph of Section 14,
RA 6770 excepts, as the only allowable remedy against "the decision or findings of the Ombudsman," a
Rule 45 appeal, for the reason that it is the only remedy taken to the Supreme Court on "pure
questions of law," whether under the 1964 Rules of Court or the 1997 Rules of Civil Procedure:

Rule 45, 1964 Rules of Court

RULE 45
Appeal from Court of Appeals to Supreme Court

xxxx

Section 2. Contents of Petition. — The petition shall contain a concise statement of the matters involved, the
assignment of errors made in the court below, and the reasons relied on for the allowance of the petition,
and it should be accompanied with a true copy of the judgment sought to be reviewed, together with twelve
(12) copies of the record on appeal, if any, and of the petitioner's brief as filed in the Court of Appeals. A
verified statement of the date when notice of judgment and denial of the motion for reconsideration, if any,
were received shall accompany the petition.

Only questions of law may be raised in the petition and must be distinctly set forth. If no record on
appeal has been filed in the Court of Appeals, the clerk of the Supreme Court, upon admission of the
petition, shall demand from the Court of Appeals the elevation of the whole record of the case. (Emphasis
and underscoring supplied)

Rule 45, 1997 Rules of Civil Procedure

RULE 45
Appeal by Certiorari to the Supreme Court
Section 1. Filing of petition with Supreme Court. - A party desiring to appeal by certiorari from a judgment,
final order or resolution of the Court of Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional
Trial Court or other courts, whenever authorized by law, may file with the Supreme Court a verified petition
for review on certiorari. The petition may include an application for a writ of preliminary injunction or other
provisional remedies and shall raise only questions of law, which must be distinctly set forth. The
petitioner may seek the same provisional remedies by verified motion filed in the same action or proceeding
at any time during its pendency. (Emphasis and underscoring supplied)

That the remedy excepted in the second paragraph of Section 14, RA 6770 could be a petition
for certiorari under Rule 65 of the 1964 Rules of Court or the 1997 Rules of Procedure is a suggestion that
defies traditional norms of procedure. It is basic procedural law that a Rule 65 petition is based on errors of
jurisdiction, and not errors of judgment to which the classifications of (a) questions of fact, (b) questions of
law, or (c) questions of mixed fact and law, relate to. In fact, there is no procedural rule, whether in the old
or new Rules, which grounds a Rule 65 petition on pure questions of law. Indeed, it is also a statutory
construction principle that the lawmaking body cannot be said to have intended the establishment of
conflicting and hostile systems on the same subject. Such a result would render legislation a useless and idle
ceremony, and subject the laws to uncertainty and unintelligibility.135 There should then be no confusion that
the second paragraph of Section 14, RA 6770 refers to a Rule 45 appeal to this Court, and no other. In sum,
the appropriate construction of this Ombudsman Act provision is that all remedies against issuances of the
Office of the Ombudsman are prohibited, except the above-stated Rule 45 remedy to the Court on pure
questions of law.

C. Validity of the second paragraph of

Section 14, RA 6770.

Of course, the second paragraph of Section 14, RA 6770's extremely limited restriction on remedies is
inappropriate since a Rule 45 appeal -which is within the sphere of the rules of procedure promulgated by
this Court - can only be taken against final decisions or orders of lower courts,136 and not against "findings"
of quasi-judicial agencies. As will be later elaborated upon, Congress cannot interfere with matters of
procedure; hence, it cannot alter the scope of a Rule 45 appeal so as to apply to interlocutory "findings"
issued by the Ombudsman. More significantly, by confining the remedy to a Rule 45 appeal, the
provision takes away the remedy of certiorari, grounded on errors of jurisdiction, in denigration of the
judicial power constitutionally vested in courts. In this light, the second paragraph of Section 14, RA 6770
also increased this Court's appellate jurisdiction, without a showing, however, that it gave its consent to the
same. The provision is, in fact, very similar to the fourth paragraph of Section 27, RA 6770 (as above-cited),
which was invalidated in the case of Fabian v. Desiertoni137 (Fabian).138

In Fabian, the Court struck down the fourth paragraph of Section 27, RA 6770 as unconstitutional since it
had the effect of increasing the appellate jurisdiction of the Court without its advice and concurrence in
violation of Section 30, Article VI of the 1987 Constitution.139 Moreover, this provision was found to be
inconsistent with Section 1, Rule 45 of the present 1997 Rules of Procedure which, as above-intimated,
applies only to a review of "judgments or final orders of the Court of Appeals, the Sandiganbayan, the Court
of Tax Appeals, the Regional Trial Court, or other courts authorized by law;" and not of quasi-judicial
agencies, such as the Office of the Ombudsman, the remedy now being a Rule 43 appeal to the Court
of Appeals. In Ruivivar v. Office of the Ombudsman,140 the Court's ratiocinations and ruling in Fabian were
recounted:

The case of Fabian v. Desierto arose from the doubt created in the application of Section 27 of R.A. No.
6770 (The Ombudsman's Act) and Section 7, Rule III of A.O. No. 7 (Rules of Procedure of the Office of the
Ombudsman) on the availability of appeal before the Supreme Court to assail a decision or order of the
Ombudsman in administrative cases. In Fabian, we invalidated Section 27 of R.A. No. 6770 (and
Section 7, Rule III of A.O. No. 7 and the other rules implementing the Act) insofar as it provided
for appeal by certiorari under Rule 45 from the decisions or orders of the Ombudsman in
administrative cases. We held that Section 27 of R.A. No. 6770 had the effect, not only of
increasing the appellate jurisdiction of this Court without its advice and concurrence in violation
of Section 30, Article VI of the Constitution; it was also inconsistent with Section 1, Rule 45 of
the Rules of Court which provides that a petition for review on certiorari shall apply only to a
review of "judgments or final orders of the Court of Appeals, the Sandiganbayan, the Court of Tax
Appeals, the Regional Trial Court, or other courts authorized by law." We pointedly said: c hanRoble svirtual Lawlib rary

As a consequence of our ratiocination that Section 27 of Republic Act No. 6770 should be struck down as
unconstitutional, and in line with the regulatory philosophy adopted in appeals from quasi-judicial agencies
in the 1997 Revised Rules of Civil Procedure, appeals from decisions of the Office of the Ombudsman in
administrative disciplinary cases should be taken to the CA under the provisions of Rule 43.141 (Emphasis
supplied)

Since the second paragraph of Section 14, RA 6770 limits the remedy against "decision or findings" of the
Ombudsman to a Rule 45 appeal and thus - similar to the fourth paragraph of Section 27, RA 6770142 -
attempts to effectively increase the Supreme Court's appellate jurisdiction without its advice and
concurrence,143 it is therefore concluded that the former provision is also unconstitutional and perforce,
invalid. Contrary to the Ombudsman's posturing,144Fabian should squarely apply since the above-stated
Ombudsman Act provisions are in part materia in that they "cover the same specific or particular subject
matter,"145 that is, the manner of judicial review over issuances of the Ombudsman.

Note that since the second paragraph of Section 14, RA 6770 is clearly determinative of the existence of the
CA's subject matter jurisdiction over the main CA-G.R. SP No. 139453 petition, including all subsequent
proceedings relative thereto, as the Ombudsman herself has developed, the Court deems it proper to
resolve this issue ex mero motu (on its own motion146). This procedure, as was similarly adopted
in Fabian, finds its bearings in settled case law:

The conventional rule, however, is that a challenge on constitutional grounds must be raised by a party to
the case, neither of whom did so in this case, but that is not an inflexible rule, as we shall explain.

Since the constitution is intended for the observance of the judiciary and other departments of the
government and the judges are sworn to support its provisions, the courts are not at liberty to overlook or
disregard its commands or countenance evasions thereof. When it is clear , that a statute transgresses the
authority vested in a legislative body, it is the duty of the courts to declare that the constitution, and not the
statute, governs in a case before them for judgment.

Thus, while courts will not ordinarily pass upon constitutional questions which are not raised in the
pleadings, the rule has been recognized to admit of certain exceptions. It does not preclude a court from
inquiring into its own jurisdiction or compel it to enter a judgment that it lacks jurisdiction to enter. If a
statute on which a court's jurisdiction in a proceeding depends is unconstitutional, the court has no
jurisdiction in the proceeding, and since it may determine whether or not it has jurisdiction, it necessarily
follows that it may inquire into the constitutionality of the statute.

Constitutional questions, not raised in the regular and orderly procedure in the trial are ordinarily
rejected unless the jurisdiction of the court below or that of the appellate court is involved in
which case it may be raised at any time or on the court's own motion. The Court ex mero motu may
take cognizance of lack of jurisdiction at any point in the case where that fact is developed. The court has a
clearly recognized right to determine its own jurisdiction in any proceeding.147 (Emphasis supplied)

D. Consequence of invalidity.

In this case, the Rule 65 petition for certiorari in CA-G.R. SP No. 139453 was filed by Binay, Jr. before the
CA in order to nullify the preventive suspension order issued by the Ombudsman, an interlocutory
order,148 hence, unappealable.149

In several cases decided after Fabian, the Court has ruled that Rule 65 petitions for certiorari against
unappelable issuances150 of the Ombudsman should be filed before the CA, and not directly before this
Court:

In Office of the Ombudsman v. Capulong151 (March 12, 2014), wherein a preventive suspension order issued
by the Office of the Ombudsman was - similar to this case - assailed through a Rule 65 petition
for certiorari filed by the public officer before the CA, the Court held that "[t]here being a finding of grave
abuse of discretion on the part of the Ombudsman, it was certainly imperative for the CA to grant incidental
reliefs, as sanctioned by Section 1 of Rule 65."152

In Dagan v. Office of the Ombudsman153 (November 19, 2013), involving a Rule 65 petition
for certiorari assailing a final and unappealable order of the Office of the Ombudsman in an administrative
case, the Court remarked that "petitioner employed the correct mode of review in this case, i.e., a special
civil action for certiorari before the Court of Appeals."154 In this relation, it stated that while "a special civil
action for Certiorari is within the concurrent original jurisdiction of the Supreme Court and the Court of
Appeals, such petition should be initially filed with the Court of Appeals in observance of the doctrine of
hierarchy of courts." Further, the Court upheld Barata v. Abalos, Jr.155 (June 6, 2001), wherein it was ruled
that the remedy against final and unappealable orders of the Office of the Ombudsman in an administrative
case was a Rule 65 petition to the CA. The same verdict was reached in Ruivivar156 (September 16, 2008).

Thus, with the unconstitutionality of the second paragraph of Section 14, RA 6770, the Court, consistent
with existing jurisprudence, concludes that the CA has subject matter jurisdiction over the main CA-G.R. SP
No. 139453 petition. That being said, the Court now examines the objections of the Ombudsman, this time
against the CA's authority to issue the assailed TRO and WPI against the implementation of the preventive
suspension order, incidental to that main case.

III.

From the inception of these proceedings, the Ombudsman has been adamant that the CA has no jurisdiction
to issue any provisional injunctive writ against her office to enjoin its preventive suspension orders. As
basis, she invokes the first paragraph of Section 14, RA 6770 in conjunction with her office's
independence under the 1987 Constitution. She advances the idea that "[i]n order to further ensure [her
office's] independence, [RA 6770] likewise insulated it from judicial intervention,"157 particularly, "from
injunctive reliefs traditionally obtainable from the courts,"158 claiming that said writs may work "just as
effectively as direct harassment or political pressure would."159

A. The concept of Ombudsman independence.

Section 5, Article XI of the 1987 Constitution guarantees the independence of the Office of the Ombudsman:

Section 5. There is hereby created the independent Office of the Ombudsman, composed of the
Ombudsman to be known as Tanodbayan, one overall Deputy and at least one Deputy each for Luzon,
Visayas[,] and Mindanao. A separate Deputy for the military establishment may likewise be appointed.
(Emphasis supplied)

In Gonzales III v. Office of the President160 (Gonzales III), the Court traced the historical underpinnings of
the Office of the Ombudsman:

Prior to the 1973 Constitution, past presidents established several Ombudsman-like agencies to serve as the
people's medium for airing grievances and for direct redress against abuses and misconduct in the
government. Ultimately, however, these agencies failed to fully realize their objective for lack of the political
independence necessary for the effective performance of their function as government critic.

It was under the 1973 Constitution that the Office of the Ombudsman became a constitutionally-mandated
office to give it political independence and adequate powers to enforce its mandate. Pursuant to the ( 1973
Constitution, President Ferdinand Marcos enacted Presidential Decree (PD) No. 1487, as amended by PD No.
1607 and PD No. 1630, creating the Office of the Ombudsman to be known as Tanodbayan. It was tasked
principally to investigate, on complaint or motu proprio, any administrative act of any administrative agency,
including any government-owned or controlled corporation. When the Office of the Tanodbayan was
reorganized in 1979, the powers previously vested in the Special Prosecutor were transferred to the
Tanodbayan himself. He was given the exclusive authority to conduct preliminary investigation of all cases
cognizable by the Sandiganbayan, file the corresponding information, and control the prosecution of these
cases.

With the advent of the 1987 Constitution, a new Office of the Ombudsman was created by constitutional
fiat. Unlike in the 1973 Constitution, its independence was expressly and constitutionally
guaranteed. Its objectives are to enforce the state policy in Section 27, Article II and the standard of
accountability in public service under Section 1, Article XI of the 1987 Constitution. These provisions
read:chanRob lesvi rtual Lawli bra ry

Section 27. The State shall maintain honesty and integrity in the public service and take positive and
effective measures against graft and corruption.

Section 1. Public office is a public trust. Public officers and employees must, at all times, be accountable to
the people, serve them with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and
justice, and lead modest lives.161 (Emphasis supplied)
More significantly, Gonzales III explained the broad scope of the office's mandate, and in correlation, the
impetus behind its independence:

Under Section 12, Article XI of the 1987 Constitution, the Office of the Ombudsman is envisioned to be the
"protector of the people" against the inept, abusive, and corrupt in the Government, to function essentially
as a complaints and action bureau. This constitutional vision of a Philippine Ombudsman practically intends
to make the Ombudsman an authority to directly check and guard against the ills, abuses and excesses , of
the bureaucracy. Pursuant to Section 13 (8), Article XI of the 1987 Constitution, Congress enacted RA No.
6770 to enable it to further realize the vision of the Constitution. Section 21 of RA No. 6770 provides:
cha nRoblesv irt ual Lawlib rary

Section 21. Official Subject to Disciplinary Authority; Exceptions. - The Office of the Ombudsman shall have
disciplinary authority over all elective and appointive officials of the Government and its subdivisions,
instrumentalities, and agencies, including Members of the Cabinet, local government, government-owned or
controlled corporations and their subsidiaries, except over officials who may be removed only by
impeachment or over Members of Congress, and the Judiciary. ChanRobles Vi rtua lawlib rary

As the Ombudsman is expected to be an "activist watchman," the < Court has upheld its actions, although
not squarely falling under the broad powers granted [to] it by the Constitution and by RA No. 6770, if these
actions are reasonably in line with its official function and consistent with the law and the Constitution.

The Ombudsman's broad investigative and disciplinary powers include all acts of malfeasance, misfeasance,
and nonfeasance of all public officials, including Members of the Cabinet and key Executive officers, during
their tenure. To support these broad powers, the Constitution saw it fit to insulate the Office of the
Ombudsman from the pressures and influence of officialdom and partisan politics and from fear
of external reprisal by making it an "independent" office, x x x.

xxxx

Given the scope of its disciplinary authority, the Office of the Ombudsman is a very powerful government
constitutional agency that is considered "a notch above other grievance-handling investigative bodies." It
has powers, both constitutional and statutory, that are commensurate , with its daunting task of enforcing
accountability of public officers.162 (Emphasis and underscoring supplied)

Gonzales III is the first case which grappled with the meaning of the Ombudsman's independence vis-a-vis
the independence of the other constitutional bodies. Pertinently, the Court observed:

(1) "[T]he independence enjoyed by the Office of the Ombudsman and by the Constitutional Commissions
shares certain characteristics - they do not owe their existence to any act of Congress, but are
created by the Constitution itself; additionally, they all enjoy fiscal autonomy. In general terms, the
framers of the Constitution intended that these 'independent' bodies be insulated from political
pressure to the extent that the absence of 'independence' would result in the impairment of their core
functions"163;
cralawlawli bra ry

(2) "[T]he Judiciary, the Constitutional Commissions, and the Ombudsman must have the independence
and flexibility needed in the discharge of their constitutional duties. The imposition of restrictions and
constraints on the manner the independent constitutional offices allocate and utilize the funds
appropriated for their operations is anathema to fiscal autonomy and violative not only [of] the
express mandate of the Constitution, but especially as regards the Supreme Court, of the independence and
separation of powers upon which the entire fabric of our constitutional system is based";164 and

(3) "[T]he constitutional deliberations explain the Constitutional Commissions' need for independence. In
the deliberations of the 1973 Constitution, the delegates amended the 1935 Constitution by providing for a
constitutionally-created Civil Service Commission, instead of one created by law, on the premise that the
effectivity of this body is dependent on its freedom from the tentacles of politics. In a similar
manner, the deliberations of the 1987 Constitution on the Commission on Audit highlighted the
developments in the past Constitutions geared towards insulating the Commission on Audit from
political pressure."165

At bottom, the decisive ruling in Gonzales III, however, was that the independence of the Office of the
Ombudsman, as well as that of the foregoing independent bodies, meant freedom from control or
supervision of the Executive Department:
[T]he independent constitutional commissions have been consistently intended by the framers to
be independent from executive control or supervision or any form of political influence. At least
insofar as these bodies are concerned, jurisprudence is not scarce on how the "independence" granted to
these bodies prevents presidential interference.

In Brillantes, Jr. v. Yorac (G.R. No. 93867, December 18, 1990, 192 SCRA 358), we emphasized that the
Constitutional Commissions, which have been characterized under the Constitution as "independent,"
are not under the control of the President, even if they discharge functions that are executive in nature.
The Court declared as unconstitutional the President's act of temporarily appointing the respondent in that
case as Acting Chairman of the [Commission on Elections] "however well-meaning" it might have been.

In Bautista v. Senator Salonga (254 Phil. 156, 179 [1989]), the Court categorically stated that the tenure of
the commissioners of the independent Commission on Human Rights could not be placed under the
discretionary power of the President.

xxxx

The kind of independence enjoyed by the Office of the Ombudsman certainly cannot be inferior - but is
similar in degree and kind - to the independence similarly guaranteed by the Constitution to the
Constitutional Commissions since all these offices fill the political interstices of a republican democracy that
are crucial to its existence and proper functioning.166 (Emphases and underscoring supplied)

Thus, in Gonzales III, the Court declared Section 8 (2), RA 6770, which provides that "[a] Deputy or the
Special Prosecutor, may be removed from office by the President for any of the grounds provided for the
removal of the Ombudsman, and after due process," partially unconstitutional insofar as it subjected the
Deputy Ombudsman to the disciplinary authority of the President for violating the principle of independence.
Meanwhile, the validity of Section 8 (2), RA 6770 was maintained insofar as the Office of the Special
Prosecutor was concerned since said office was not considered to be constitutionally within the Office of the
Ombudsman and is, hence, not entitled to the independence the latter enjoys under the Constitution.167

As may be deduced from the various discourses in Gonzales III, the concept of Ombudsman's independence
covers three (3) things:

First: creation by the Constitution, which means that the office cannot be abolished, nor its
constitutionally specified functions and privileges, be removed, altered, or modified by law, unless the
Constitution itself allows, or an amendment thereto is made; cralawlawl ibrary

Second: fiscal autonomy, which means that the office "may not be obstructed from [its] freedom to use
or dispose of [its] funds for purposes germane to [its] functions;168hence, its budget cannot be strategically
decreased by officials of the political branches of government so as to impair said functions; and

Third: insulation from executive supervision and control, which means that those within the ranks of
the office can only be disciplined by an internal authority.

Evidently, all three aspects of independence intend to protect the Office of the Ombudsman from political
harassment and pressure, so as to free it from the "insidious tentacles of politics."169

That being the case, the concept of Ombudsman independence cannot be invoked as basis to insulate the
Ombudsman from judicial power constitutionally vested unto the courts. Courts are apolitical bodies, which
are ordained to act as impartial tribunals and apply even justice to all. Hence, the Ombudsman's notion that
it can be exempt from an incident of judicial power - that is, a provisional writ of injunction against a
preventive suspension order - clearly strays from the concept's rationale of insulating the office from political
harassment or pressure.

B. The first paragraph of Section 14, RA

6770 in light of the powers of Congress and the
Court under the 1987 Constitution.

The Ombudsman's erroneous abstraction of her office's independence notwithstanding, it remains that the
first paragraph of Section 14, RA 6770 textually prohibits courts from extending provisional injunctive relief
to delay any investigation conducted by her office. Despite the usage of the general phrase "[n]o writ of
injunction shall be issued by any court," the Ombudsman herself concedes that the prohibition does not
cover the Supreme Court.170 As support, she cites the following Senate deliberations:

Senator [Ernesto M.] Maceda. Mr. President, I do not know if an amendment is necessary. I would just
like to inquire for the record whether below the Supreme Court, it is understood that there is no
injunction policy against the Ombudsman by lower courts. Or, is it necessary to have a special
paragraph for that?

Senator Angara. Well, there is no provision here, Mr. President, that will prevent an injunction against the
Ombudsman being issued.

Senator Maceda. In which case, I think that the intention, this being one of the highest
constitutional bodies, is to subject this only to certiorari to the Supreme Court. I think an
injunction from the Supreme Court is, of course, in order but no lower courts should be allowed
to interfere. We had a very bad experience with even, let us say, the Forestry Code where no injunction is
supposed to be issued against the Department of Natural Resources. Injunctions are issued right and
left by RTC judges all over the country.

The President. Why do we not make an express provision to that effect?

Senator Angara. We would welcome that, Mr. President.

The President. No [writs of injunction] from the trial courts other than the Supreme Court.

Senator Maceda. I so move, Mr. President, for that amendment.

The President. Is there any objection? [Silence] Hearing none, the same is approved.171

Further, she acknowledges that by virtue of Sections 1 and 5 (1), Article VIII of the 1987 Constitution, acts
of the Ombudsman, including interlocutory orders, are subject to the Supreme Court's power of judicial
review As a corollary, the Supreme Court may issue ancillary mjunctive writs or provisional remedies in the
exercise of its power of judicial review over matters pertaining to ongoing investigations by the Office of the
Ombudsman. Respecting the CA, however, the Ombudsman begs to differ.172

With these submissions, it is therefore apt to examine the validity of the first paragraph of Section 14, RA
6770 insofar as it prohibits all courts, except this Court, from issuing provisional writs of injunction to enjoin
an Ombudsman investigation. That the constitutionality of this provision is the lis mota of this case has not
been seriously disputed. In fact, the issue anent its constitutionality was properly raised and presented
during the course of these proceedings.173 More importantly, its resolution is clearly necessary to the
complete disposition of this case.174

In the enduring words of Justice Laurel in Angara v. The Electoral Commission (Angara),175 the "Constitution
has blocked out with deft strokes and in bold lines, allotment of power to the executive, the legislative[,]
and the judicial departments of the government."176 The constitutional demarcation of the three
fundamental powers of government is more commonly known as the principle of separation of powers. In
the landmark case of Belgica v. Ochoa, Jr. (Belgica),177 the Court held that "there is a violation of the
separation of powers principle when one branch of government unduly encroaches on the domain of
another."178 In particular, "there is a violation of the principle when there is impermissible (a) interference
with and/or (b) assumption of another department's functions."179

Under Section 1, Article VIII of the 1987 Constitution, judicial power is allocated to the Supreme Court
and all such lower courts:

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.
This Court is the only court established by the Constitution, while all other lower courts may be
established by laws passed by Congress. Thus, through the passage of Batas Pambansa Bilang (BP)
129,180 known as "The Judiciary Reorganization Act of 1980," the Court of Appeals,181 the Regional Trial
Courts,182 and the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts183 were
established. Later, through the passage of RA 1125,184 and Presidential Decree No. (PD) 1486,185 the Court
of Tax Appeals, and the Sandiganbayan were respectively established.

In addition to the authority to establish lower courts, Section 2, Article VIII of the 1987
Constitution empowers Congress to define, prescribe, and apportion the jurisdiction of all
courts, except that it may not deprive the Supreme Court of its jurisdiction over cases
enumerated in Section 5186 of the same Article:

Section 2. The Congress shall have the power to define, prescribe, ' and apportion the jurisdiction of the
various courts but may not deprive the Supreme Court of its jurisdiction over cases enumerated in Section 5
hereof.

xxxx ChanRoblesVi rt ualawlib ra ry

Jurisdiction, as hereinabove used, more accurately pertains to jurisdiction over the subject matter of an
action. In The Diocese ofBacolod v. Commission on Elections,187 subject matter jurisdiction was defined as
"the authority 'to hear and determine cases of the general class to which the proceedings in
question belong and is conferred by the sovereign authority which organizes the court and
defines its powers.'"

Among others, Congress defined, prescribed, and apportioned the subject matter jurisdiction of this Court
(subject to the aforementioned constitutional limitations), the Court of Appeals, and the trial courts, through
the passage of BP 129, as amended.

In this case, the basis for the CA's subject matter jurisdiction over Binay, Jr.'s main petition
for certiorari in CA-G.R. SP No. 139453 is Section 9(1), Chapter I of BP 129, as amended:

Section 9. Jurisdiction. - The Court of Appeals shall exercise:

1. Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas

corpus, and quo warranto, and auxiliary writs or processes, whether or not in aid of its
appellate jurisdiction[.]

Note that the CA's certiorari jurisdiction, as above-stated, is not only original but also concurrent with the
Regional Trial Courts (under Section 21 (1), Chapter II of BP 129), and the Supreme Court (under Section 5,
Article VIII of the 1987 Philippine Constitution). In view of the concurrence of these courts' jurisdiction over
petitions for certiorari, the doctrine of hierarchy of courts should be followed. In People v.
Cuaresma,188 the doctrine was explained as follows:

[T]his concurrence of jurisdiction is not x x x to be taken as according to parties seeking any of the writs
an absolute, unrestrained freedom of choice of the court to which application therefor will be directed. There
is after all a hierarchy of courts. That hierarchy is determinative of the venue of appeals, and should also
serve as a general determinant of the appropriate forum for petitions for the extraordinary writs. A
becoming regard for that judicial hierarchy most certainly indicates that petitions for the issuance of
extraordinary writs against first level ("inferior") courts should be filed with the Regional Trial Court, and
those against the latter, with the Court of Appeals.189

When a court has subject matter jurisdiction over a particular case, as conferred unto it by law, said
court may then exercise its jurisdiction acquired over that case, which is called judicial power.

Judicial power, as vested in the Supreme Court and all other courts established by law, has been defined
as the "totality of powers a court exercises when it assumes jurisdiction and hears and decides a
case."190 Under Section 1, Article VIII of the 1987 Constitution, it 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."

In Oposa v. Factoran, Jr.191 the Court explained the expanded scope of judicial power under the 1987
Constitution:

The first part of the authority represents the traditional concept of judicial power, involving the settlement of
conflicting rights as conferred by law. The second part of the authority represents a broadening of f judicial
power to enable the courts of justice to review what was before forbidden territory, to wit, the discretion of
the political departments of the government.

As worded, the new provision vests in the judiciary, and particularly the Supreme Court, the power to rule
upon even the wisdom of the decisions of the executive and the legislature and to declare their acts invalid
for lack or excess of jurisdiction because they are tainted with grave abuse of discretion. The catch, of
course, is the meaning of "grave abuse of discretion," which is a very elastic phrase that can expand or
contract according to the disposition of the judiciary.192

Judicial power is never exercised in a vacuum. A court's exercise of the jurisdiction it has acquired
over a particular case conforms to the limits and parameters of the rules of procedure duly
promulgated by this Court. In other words, procedure is the framework within which judicial power is
exercised. In Manila Railroad Co. v. Attorney-General,193 the Court elucidated that "[t]he power or authority
of the court over the subject matter existed and was fixed before procedure in a given cause
began. Procedure does not alter or change that power or authority; it simply directs the manner
in which it shall be fully and justly exercised. To be sure, in certain cases, if that power is not
exercised in conformity with the provisions of the procedural law, purely, the court attempting to exercise it
loses the power to exercise it legally. This does not mean that it loses jurisdiction of the subject matter."194

While the power to define, prescribe, and apportion the jurisdiction of the various courts is, by constitutional
design, vested unto Congress, the power to promulgate rules concerning the protection and
enforcement of constitutional rights, pleading, practice, and procedure in all courts belongs
exclusively to this Court. Section 5 (5), Article VIII of the 1987 Constitution reads:

Section 5. The Supreme Court shall have the following powers:

xxxx

(5) Promulgate rules concerning the protection and enforcement of constitutional rights,
pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar,
and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure
for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish,
increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall
remain effective unless disapproved by the Supreme Court. (Emphases and underscoring supplied)

In Echegaray v. Secretary of Justice195 (Echegaray), the Court traced the evolution of its rule-making
authority, which, under the 1935196 and 1973 Constitutions,197 had been priorly subjected to a power-
sharing scheme with Congress.198 As it now stands, the 1987 Constitution textually altered the old
provisions by deleting the concurrent power of Congress to amend the rules, thus solidifying in
one body the Court's rule-making powers, in line with the Framers' vision of institutionalizing a
"[s]tronger and more independent judiciary."199

The records of the deliberations of the Constitutional Commission would show200 that the Framers debated
on whether or not the Court's rule-making powers should be shared with Congress. There was an initial
suggestion to insert the sentence "The National Assembly may repeal, alter, or supplement the said rules
with the advice and concurrence of the Supreme Court", right after the phrase "Promulgate rules concerning
the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the
admission to the practice of law, the integrated bar, and legal assistance to the underprivileged^" in the
enumeration of powers of the Supreme Court. Later, Commissioner Felicitas S. Aquino proposed to delete
the former sentence and, instead, after the word "[underprivileged," place a comma (,) to be followed by
"the phrase with the concurrence of the National Assembly." Eventually, a compromise formulation was
reached wherein (a) the Committee members agreed to Commissioner Aquino's proposal to delete the
phrase "the National Assembly may repeal, alter, or supplement the said rules with the advice and
concurrence of the Supreme Court" and (b) in turn, Commissioner Aquino agreed to withdraw his proposal
to add "the phrase with the concurrence of the National Assembly." The changes were approved,
thereby leading to the present lack of textual reference to any form of Congressional
participation in Section 5 (5), Article VIII, supra. The prevailing consideration was that "both
bodies, the Supreme Court and the Legislature, have their inherent powers."201

Thus, as it now stands, Congress has no authority to repeal, alter, or supplement rules concerning pleading,
practice, and procedure. As pronounced in Echegaray:

The rule making power of this Court was expanded. This Court for the first time was given the power to
promulgate rules concerning the protection and enforcement of constitutional rights. The Court was also r
granted for the first time the power to disapprove rules of procedure of special courts and quasi-judicial
bodies. But most importantly, the 1987 Constitution took away the power of Congress to repeal,
alter, or supplement rules concerning pleading, practice and procedure. In fine, the power to
promulgate rules of pleading, practice and procedure is no longer shared by this Court with
Congress, more so with the Executive.202 (Emphasis and underscoring supplied)

Under its rule-making authority, the Court has periodically passed various rules of procedure, among others,
the current 1997 Rules of Civil Procedure. Identifying the appropriate procedural remedies needed
for the reasonable exercise of every court's judicial power, the provisional remedies of temporary
restraining orders and writs of preliminary injunction were thus provided.

A temporary restraining order and a writ of preliminary injunction both constitute temporary measures
availed of during the pendency of the action. They are, by nature, ancillary because they are mere incidents
in and are dependent upon the result of the main action. It is well-settled that the sole object of a
temporary restraining order or a writ of preliminary injunction, whether prohibitory or
mandatory, is to preserve the status quo203 until the merits of the case can be heard. They are usually
granted when it is made to appear that there is a substantial controversy between the parties and one of
them is committing an act or threatening the immediate commission of an act that will cause irreparable
injury or destroy the status quo of the controversy before a full hearing can be had on the merits of the
case. In other words, they are preservative remedies for the protection of substantive rights or interests,
and, hence, not a cause of action in itself, but merely adjunct to a main suit.204 In a sense, they are
regulatory processes meant to prevent a case from being mooted by the interim acts of the parties.

Rule 58 of the 1997 Rules of Civil Procedure generally governs the provisional remedies of a TRO and a WPI.
A preliminary injunction is defined under Section 1,205 Rule 58, while Section 3206 of the same Rule
enumerates the grounds for its issuance. Meanwhile, under Section 5207 thereof, a TRO may be issued as a
precursor to the issuance of a writ of preliminary injunction under certain procedural parameters.

The power of a court to issue these provisional injunctive reliefs coincides with its inherent power to issue
all auxiliary writs, processes, and other means necessary to carry its acquired jurisdiction into
effect under Section 6, Rule 135 of the Rules of Court which reads:

Section 6. Means to carry jurisdiction into effect. - When by law jurisdiction is conferred on a court or
judicial officer, all auxiliary writs, f processes and other means necessary to carry it into effect may be
employed by such court or officer; and if the procedure to be followed in the exercise of such jurisdiction is
not specifically pointed out by law208 or by these rules, any suitable process or mode of proceeding may be
adopted which appears comfortable to the spirit of the said law or rules. ChanRobles Vi rtu alawlib rary

In City of Manila v. Grecia-Cuerdo,209 which is a case involving "[t]he supervisory power or jurisdiction of the
[Court of Tax Appeals] to issue a writ of certiorari in aid of its appellate jurisdiction"210 over "decisions,
orders or resolutions of the RTCs in local tax cases originally decided or resolved by them in the exercise of
their original or appellate jurisdiction,"211 the Court ruled that said power "should coexist with, and be a
complement to, its appellate jurisdiction to review, by appeal, the final orders and decisions of the RTC, in
order to have complete supervision over the acts of the latter:"212

A grant of appellate jurisdiction implies that there is included in it the power necessary to exercise it
effectively, to make all orders that ; will preserve the subject of the action, and to give effect to
the final determination of the appeal. It carries with it the power to protect that jurisdiction and to make
the decisions of the court thereunder effective. The court, in aid of its appellate jurisdiction, has authority to
control all auxiliary and incidental matters necessary to the efficient and proper exercise of that jurisdiction.
For this purpose, it may, when necessary, prohibit or restrain the performance of any act which might
interfere with the proper exercise of its rightful jurisdiction in cases pending before it.213 (Emphasis supplied)

In this light, the Court expounded on the inherent powers of a court endowed with subject matter
jurisdiction:

[A] court which is endowed with a particular jurisdiction should have powers which are necessary to enable
it to act effectively within such jurisdiction. These should be regarded as powers which are inherent in
its jurisdiction and the court must possess them in order to enforce its rules of practice and to
suppress any abuses of its process and to t defeat any attempted thwarting of such process.

xxxx cralawlawlib rary

Indeed, courts possess certain inherent powers which may be said to be implied from a general grant of
jurisdiction, in addition to those expressly conferred on them. These inherent powers are such powers
as are necessary for the ordinary and efficient exercise of jurisdiction; or are essential to the
existence, dignity and functions of the courts, as well as to the due administration of justice; or
are directly appropriate, convenient and suitable to the execution of their granted powers; and
include the power to maintain the court's jurisdiction and render it effective in behalf of the
litigants.214 (Emphases and underscoring supplied)

Broadly speaking, the inherent powers of the courts resonates the long-entrenched constitutional principle,
articulated way back in the 1936 case of Angara, that "where a general power is conferred or duty enjoined,
every particular power necessary for the exercise of the one or the performance of the other is also
conferred."215

In the United States, the "inherent powers doctrine refers to the principle, by which the courts deal with
diverse matters over which they are thought to have intrinsic authority like procedural [rule-making] and
general judicial housekeeping. To justify the invocation or exercise of inherent powers, a court must show
that the powers are reasonably necessary to achieve the specific purpose for which the exercise
is sought. Inherent powers enable the judiciary to accomplish its constitutionally mandated
functions."216

In Smothers v. Lewis217 (Smothers), a case involving the constitutionality of a statute which prohibited
courts from enjoining the enforcement of a revocation order of an alcohol beverage license pending
appeal,218 the Supreme Court of Kentucky held:

[T]he Court is x x x vested with certain "inherent" powers to do that which is reasonably necessary
for the administration of justice within the scope of their jurisdiction. x x x [W]e said while
considering the rule making power and the judicial power to be one and the same that ". . . the grant of
judicial power [rule making power] to the courts by the constitution carries with it, as a
necessary incident, the right to make that power effective in the administration of justice."
(Emphases supplied)

Significantly, Smothers characterized a court's issuance of provisional injunctive relief as an exercise of the
court's inherent power, and to this end, stated that any attempt on the part of Congress to interfere with the
same was constitutionally impermissible:

It is a result of this foregoing line of thinking that we now adopt the language framework of 28 Am.Jur.2d,
Injunctions, Section 15, and once and for all make clear that a court, once having obtained jurisdiction of a
cause of action, has, as an incidental to its constitutional grant of power, inherent power to do all things
reasonably necessary to the administration of justice in the case before it. In the exercise of this power,
a court, when necessary in order to protect or preserve the subject matter of the litigation, to
protect its jurisdiction and to make its judgment effective, may grant or issue a temporary
injunction in aid of or ancillary to the principal action.

The control over this inherent judicial power, in this particular instance the injunction, is
exclusively within the constitutional realm of the courts. As such, it is not within the purview of
the legislature to grant or deny the power nor is it within the purview of the legislature to shape
or fashion circumstances under which this inherently judicial power may be or may not be
granted or denied.

This Court has historically recognized constitutional limitations upon the power of the legislature to interfere
with or to inhibit the performance of constitutionally granted and inherently provided judicial functions, x x x

xxxx

We reiterate our previously adopted language, ". . . a court, once having obtained jurisdiction of a cause of
action, has, as incidental to its general jurisdiction, inherent power to do all things reasonably necessary f to
the administration of justice in the case before it. . ." This includes the inherent power to issue
injunctions. (Emphases supplied)

Smothers also pointed out that the legislature's authority to provide a right to appeal in the statute does not
necessarily mean that it could control the appellate judicial proceeding:

However, the fact that the legislature statutorily provided for this appeal does not give it the right to
encroach upon the constitutionally granted powers of the judiciary. Once the administrative action has
ended and the right to appeal arises the legislature is void of any right to control a subsequent
appellate judicial proceeding. The judicial rules have come into play and have preempted the
field.219 (Emphasis supplied)

With these considerations in mind, the Court rules that when Congress passed the first paragraph of Section
14, RA 6770 and, in so doing, took away from the courts their power to issue a TRO and/or WPI to enjoin an
investigation conducted by the Ombudsman, it encroached upon this Court's constitutional rule-making
authority. Clearly, these issuances, which are, by nature, provisional reliefs and auxiliary writs created under
the provisions of the Rules of Court, are matters of procedure which belong exclusively within the
province of this Court. Rule 58 of the Rules of Court did not create, define, and regulate a right but merely
prescribed the means of implementing an existing right220 since it only provided for temporary reliefs to
preserve the applicant's right in esse which is threatened to be violated during the course of a pending
litigation. In the case of Fabian,211 it was stated that:

If the rule takes away a vested right, it is not procedural. If the rule creates a right such as the right to
appeal, it may be classified as a substantive matter; but if it operates as a means of implementing an
existing right then the rule deals merely with procedure. ChanR obles Virtualawl ibra ry

Notably, there have been similar attempts on the part of Congress, in the exercise of its legislative power, to
amend the Rules of Court, as in the cases of: (a) In Re: Exemption of The National Power Corporation from
Payment of Filing/ Docket Fees;222 (b) Re: Petition for Recognition of the Exemption of the Government
Service Insurance System (GSIS) from Payment of Legal Fees;223 and (c) Baguio Market Vendors Multi-
Purpose Cooperative (BAMARVEMPCO) v. Cabato-Cortes224 While these cases involved legislative enactments
exempting government owned and controlled corporations and cooperatives from paying filing fees, thus,
effectively modifying Rule 141 of the Rules of Court (Rule on Legal Fees), it was, nonetheless, ruled that the
prerogative to amend, repeal or even establish new rules of procedure225 solely belongs to the
Court, to the exclusion of the legislative and executive branches of government. On this score, the
Court described its authority to promulgate rules on pleading, practice, and procedure as exclusive and
"[o]ne of the safeguards of [its] institutional independence."226

That Congress has been vested with the authority to define, prescribe, and apportion the jurisdiction of the
various courts under Section 2, Article VIII supra, as well as to create statutory courts under Section 1,
Article VIII supra, does not result in an abnegation of the Court's own power to promulgate rules of
pleading, practice, and procedure under Section 5 (5), Article VIII supra. Albeit operatively interrelated,
these powers are nonetheless institutionally separate and distinct, each to be preserved under its own
sphere of authority. When Congress creates a court and delimits its jurisdiction, the procedure for
which its jurisdiction is exercised is fixed by the Court through the rules it promulgates. The first
paragraph of Section 14, RA 6770 is not a jurisdiction-vesting provision, as the Ombudsman
misconceives,227 because it does not define, prescribe, and apportion the subject matter jurisdiction of
courts to act on certiorari cases; the certiorari jurisdiction of courts, particularly the CA, stands under the
relevant sections of BP 129 which were not shown to have been repealed. Instead, through this
provision, Congress interfered with a provisional remedy that was created by this Court under its
duly promulgated rules of procedure, which utility is both integral and inherent to every court's
exercise of judicial power. Without the Court's consent to the proscription, as may be manifested
by an adoption of the same as part of the rules of procedure through an administrative circular
issued therefor, there thus, stands to be a violation of the separation of powers principle.

In addition, it should be pointed out that the breach of Congress in prohibiting provisional injunctions, such
as in the first paragraph of Section 14, RA 6770, does not only undermine the constitutional allocation of
powers; it also practically dilutes a court's ability to carry out its functions. This is so since a
particular case can easily be mooted by supervening events if no provisional injunctive relief is
extended while the court is hearing the same. Accordingly, the court's acquired jurisdiction, through
which it exercises its judicial power, is rendered nugatory. Indeed, the force of judicial power, especially
under the present Constitution, cannot be enervated due to a court's inability to regulate what occurs during
a proceeding's course. As earlier intimated, when jurisdiction over the subject matter is accorded by law and
has been acquired by a court, its exercise thereof should be undipped. To give true meaning to the judicial
power contemplated by the Framers of our Constitution, the Court's duly promulgated rules of procedure
should therefore remain unabridged, this, even by statute. Truth be told, the policy against provisional
injunctive writs in whatever variant should only subsist under rules of procedure duly promulgated by the
Court given its sole prerogative over the same.

The following exchange between Associate Justice Marvic Mario Victor F. Leonen (Justice Leonen) and the
Acting Solicitor General Florin T. Hilbay (Acting Solicitor General Hilbay) mirrors the foregoing observations:

JUSTICE LEONEN:
Okay. Now, would you know what rule covers injunction in the Rules of Court?

ACTING SOLICITOR GENERAL HILBAY:

Rule 58, Your Honor.

JUSTICE LEONEN:
58, that is under the general rubric if Justice Bersamin will correct me if I will be mistaken under the rubric
of what is called provisional remedies, our resident expert because Justice Peralta is not here so Justice
Bersamin for a while. So provisional remedy you have injunction, x x x.

xxxx

JUSTICE LEONEN:
Okay, Now, we go to the Constitution. Section 5, subparagraph 5 of Article VIII of the Constitution, if you
have a copy of the Constitution, can you please read that provision? Section 5, Article VIII the Judiciary
subparagraph 5, would you kindly read that provision?

ACTING SOLICTOR GENERAL HILBAY.

"Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice and
procedure in all courts..."

JUSTICE LEONEN:
Okay, we can stop with that, promulgate rules concerning pleading, practice and procedure in all courts.
This is the power, the competence, the jurisdiction of what constitutional organ?

ACTING SOLICITOR GENERAL HILBAY:

The Supreme Court, Your Honor.

JUSTICE LEONEN:
The Supreme Court. This is different from Article VIII Sections 1 and 2 which we've already been discussed
with you by my other colleagues, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

JUSTICE LEONEN:
Okay, so in Section 2, [apportion] jurisdiction that is the power of Congress, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

JUSTICE LEONEN:
On the other hand, the power to promulgate rules is with the Court, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

JUSTICE LEONEN:
A TRO and a writ of preliminary injunction, would it be a separate case or is it part of litigation in an
ordinary case?

ACTING SOLICITOR GENERAL HILBAY:

It is an ancillary remedy, Your Honor.

JUSTICE LEONEN:
In fact, it originated as an equitable remedy, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

JUSTICE LEONEN:
In order to preserve the power of a court so that at the end of litigation, it will not be rendered
moot and academic, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

JUSTICE LEONEN:
In that view, isn't Section 14, first paragraph, unconstitutional?

ACTING SOLICITOR GENERAL HILBAY:

No, Your Honor.

xxxx

JUSTICE LEONEN.
Can Congress say that a Court cannot prescribe Motions to Dismiss under Rule 16?

ACTING SOLICITOR GENERAL HILBAY:

Your Honor, Congress cannot impair the power of the Court to create remedies, x x x.

JUSTICE LEONEN.
What about bill [of] particulars, can Congress say, no Court shall have the power to issue the supplemental
pleading called the bill of t particular [s]? It cannot, because that's part of procedure...

ACTING SOLICITOR GENERAL HILBAY:

That is true.

JUSTICE LEONEN
...or for that matter, no Court shall act on a Motion to Quash, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct.

JUSTICE LEONEN:
So what's different with the writ of injunction?

ACTING SOLICITOR GENERAL HILBAY:

Writ of injunction, Your Honor, requires the existence of jurisdiction on the part of a court that was created
by Congress. In the absence of jurisdiction... (interrupted)
JUSTICE LEONEN:
No, writ of injunction does not attach to a court. In other words, when they create a special agrarian court it
has all procedures with it but it does not attach particularly to that particular court, is that not correct?

ACTING SOLICTOR GENERAL HILBAY:

When Congress, Your Honor, creates a special court...

JUSTICE LEONEN:
Again, Counsel, what statute provides for a TRO, created the concept of a TRO? It was a Rule. A rule of
procedure and the Rules of Court, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Yes, Your Honor.

JUSTICE LEONEN:
And a TRO and a writ of preliminary injunction does not exist unless it is [an] ancillary to a particular
injunction in a court, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

xxxx228 (Emphasis supplied)

In Biraogo v. The Philippine Truth Commission of 2010,229 the Court instructed that "[i]t is through the
Constitution that the fundamental powers of government are established, limited and defined, and by which
these powers are distributed among the several departments. The Constitution is the basic and paramount
law to which all other laws must conform and to which all persons, including the highest officials of the land,
must defer." It would then follow that laws that do not conform to the Constitution shall be stricken down for
being unconstitutional.230

However, despite the ostensible breach of the separation of powers principle, the Court is not oblivious to
the policy considerations behind the first paragraph of Section 14, RA 6770, as well as other statutory
provisions of similar import. Thus, pending deliberation on whether or not to adopt the same, the Court,
under its sole prerogative and authority over all matters of procedure, deems it proper to declare as
ineffective the prohibition against courts other than the Supreme Court from issuing provisional injunctive
writs to enjoin investigations conducted by the Office of the Ombudsman, until it is adopted as part of the
rules of procedure through an administrative circular duly issued therefor.

Hence, with Congress interfering with matters of procedure (through passing the first paragraph of Section
14, RA 6770) without the Court's consent thereto, it remains that the CA had the authority to issue the
questioned injunctive writs enjoining the implementation of the preventive suspension order against Binay,
Jr. At the risk of belaboring the point, these issuances were merely ancillary to the exercise of the
CA's certiorari jurisdiction conferred to it under Section 9 (1), Chapter I of BP 129, as amended, and which it
had already acquired over the main CA-G.R. SP No. 139453 case.

IV.

The foregoing notwithstanding, the issue of whether or not the CA gravely abused its jurisdiction in issuing
the TRO and WPI in CA-G.R. SP No. 139453 against the preventive suspension order is a persisting objection
to the validity of said injunctive writs. For its proper analysis, the Court first provides the context of the
assailed injunctive writs.

A. Subject matter of the CA's iniunctive writs is the preventive suspension order.

By nature, a preventive suspension order is not a penalty but only a preventive measure.
In Quimbo v. Acting Ombudsman Gervacio,231 the Court explained the distinction, stating that its purpose
is to prevent the official to be suspended from using his position and the powers and
prerogatives of his office to influence potential witnesses or tamper with records which may be
vital in the prosecution of the case against him:
Jurisprudential law establishes a clear-cut distinction between suspension as preventive
measure and suspension as penalty. The distinction, by considering the purpose aspect of the suspensions,
is readily cognizable as they have different ends sought to be achieved.

Preventive suspension is merely a preventive measure, a preliminary step in an administrative

investigation. The purpose of the suspension order is to prevent the accused from using his
position and the powers and prerogatives of his office to influence potential witnesses or tamper
with records which may be vital in the prosecution of the case against him. If after such
investigation, the charge is established and the person investigated is found guilty of acts warranting his
suspension or removal, then he is suspended, removed or dismissed. This is the penalty.

That preventive suspension is not a penalty is in fact explicitly provided by Section 24 of Rule XIV of the
Omnibus Rules Implementing Book V of the Administrative Code of 1987 (Executive Order No. 292) and
other Pertinent Civil Service Laws.
Section. 24. Preventive suspension is not a punishment or penalty for misconduct in office but is considered
to be a preventive measure. (Emphasis supplied) ChanRob les Virtualawl ibra ry

Not being a penalty, the period within which one is under preventive suspension is not considered part of
the actual penalty of suspension. So Section 25 of the same Rule XIV provides: chanRoble svirtual Lawlib rary

Section 25. The period within which a public officer or employee charged is placed under preventive
suspension shall not be considered part of the actual penalty of suspension imposed upon the
employee found guilty.232 (Emphases supplied) ChanRoble sVirtualawl ibra ry

The requisites for issuing a preventive suspension order are explicitly stated in Section 24, RA 6770:

Section 24. Preventive Suspension. - The Ombudsman or his Deputy may preventively suspend any officer
or employee under his authority pending an investigation, if in his judgment the evidence of guilt is
strong, and (a) the charge against such officer or employee involves dishonesty, oppression or
grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal
from the service; or (c) the respondent's continued stay in office may prejudice the case filed
against him.

The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but
not more than six (6) months, without pay, except when the delay in the disposition of the case by the
Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the
period of such delay shall not be counted in computing the period of suspension herein provided. (Emphasis
and underscoring supplied)

In other words, the law sets forth two (2) conditions that must be satisfied to justify the issuance of an
order of preventive suspension pending an investigation, namely:

(1) The evidence of guilt is strong; and

(2) Either of the following circumstances co-exist with the first requirement: chanRob lesvi rtua lLawl ibra ry

(a) The charge involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; cralawlawli bra ry

(b) The charge would warrant removal from the service; or

(c) The respondent's continued stay in office may prejudice the case filed against him.233 ChanRobles Vi rtualaw lib rary

B. The basis of the CA's injunctive writs is the condonation doctrine.

Examining the CA's Resolutions in CA-G.R. SP No. 139453 would, however, show that the Ombudsman's
non-compliance with the requisites provided in Section 24, RA 6770 was not the basis for the issuance of the
assailed injunctive writs.

The CA's March 16, 2015 Resolution which directed the issuance of the assailed TRO was based on the case
of Governor Garcia, Jr. v. CA234 (Governor Garcia, Jr.), wherein the Court emphasized that "if it were
established in the CA that the acts subject of the administrative complaint were indeed committed during
petitioner [Garcia's] prior term, then, following settled jurisprudence, he can no longer be administratively
charged."235 Thus, the Court, contemplating the application of the condonation doctrine, among others,
cautioned, in the said case, that "it would have been more prudent for [the appellate court] to have, at the
very least, on account of the extreme urgency of the matter and the seriousness of the issues raised in
the certiorari petition, issued a TRO x x x"236 during the pendency of the proceedings.

Similarly, the CA's April 6, 2015 Resolution which directed the issuance of the assailed WPI was based on
the condonation doctrine, citing the case of Aguinaldo v. Santos237 The CA held that Binay, Jr. has an
ostensible right to the final relief prayed for, i.e., the nullification of the preventive suspension order, finding
that the Ombudsman can hardly impose preventive suspension against Binay, Jr. given that his re-election
in 2013 as City Mayor of Makati condoned any administrative liability arising from anomalous activities
relative to the Makati Parking Building project from 2007 to 2013.238 Moreover, the CA observed that
although there were acts which were apparently committed by Binay, Jr. beyond his first term , i.e., the
alleged payments on July 3, 4, and 24, 2013,239 corresponding to the services of Hillmarc's and MANA - still,
Binay, Jr. cannot be held administratively liable therefor based on the cases of Salalima v. Guingona,
Jr.,240 and Mayor Garcia v. Mojica,241 wherein the condonation dobtrine was applied by the Court although
the payments were made after the official's election, reasoning that the payments were merely effected
pursuant to contracts executed before said re-election.242

The Ombudsman contends that it was inappropriate for the CA to have considered the condonation doctrine
since it was a matter of defense which should have been raised and passed upon by her office during the
administrative disciplinary proceedings.243 However, the Court agrees with the CA that it was not precluded
from considering the same given that it was material to the propriety of according provisional injunctive
relief in conformity with the ruling in Governor Garcia, Jr., which was the subsisting jurisprudence at that
time. Thus, since condonation was duly raised by Binay, Jr. in his petition in CA-G.R. SP No. 139453,244 the
CA did not err in passing upon the same. Note that although Binay, Jr. secondarily argued that the evidence
of guilt against him was not strong in his petition in CA-G.R. SP No. 139453,245 it appears that the CA found
that the application of the condonation doctrine was already sufficient to enjoin the implementation of the
preventive suspension order. Again, there is nothing aberrant with this since, as remarked in the same case
of Governor Garcia, Jr., if it was established that the acts subject of the administrative complaint were
indeed committed during Binay, Jr.'s prior term, then, following the condonation doctrine, he can no longer
be administratively charged. In other words, with condonation having been invoked by Binay, Jr. as an
exculpatory affirmative defense at the onset, the CA deemed it unnecessary to determine if the evidence of
guilt against him was strong, at least for the purpose of issuing the subject injunctive writs.

With the preliminary objection resolved and the basis of the assailed writs herein laid down, the Court now
proceeds to determine if the CA gravely abused its discretion in applying the condonation doctrine.

C. The origin of the condonation doctrine.

Generally speaking, condonation has been defined as "[a] victim's express or implied forgiveness of an
offense, [especially] by treating the offender as if there had been no offense."246

The condonation doctrine - which connotes this same sense of complete extinguishment of liability as will be
herein elaborated upon - is not based on statutory law. It is a jurisprudential creation that originated from
the 1959 case of Pascual v. Hon. Provincial Board ofNueva Ecija,247 (Pascual), which was therefore
decided under the 1935 Constitution.

In Pascual, therein petitioner, Arturo Pascual, was elected Mayor of San Jose, Nueva Ecija, sometime in
November 1951, and was later re-elected to the same position in 1955. During his second term, or on
October 6, 1956, the Acting Provincial Governor filed administrative charges before the Provincial Board
of Nueva Ecija against him for grave abuse of authority and usurpation of judicial functions for acting on a
criminal complaint in Criminal Case No. 3556 on December 18 and 20, 1954. In defense, Arturo Pascual
argued that he cannot be made liable for the acts charged against him since they were committed during his
previous term of office, and therefore, invalid grounds for disciplining him during his second term. The
Provincial Board, as well as the Court of First Instance of Nueva Ecija, later decided against Arturo Pascual,
and when the case reached this Court on appeal, it recognized that the controversy posed a novel issue -
that is, whether or not an elective official may be disciplined for a wrongful act committed by him during his
immediately preceding term of office.

As there was no legal precedent on the issue at that time, the Court, in Pascual, resorted to
American authorities and "found that cases on the matter are conflicting due in part, probably, to
differences in statutes and constitutional provisions, and also, in part, to a divergence of views with respect
to the question of whether the subsequent election or appointment condones the prior
misconduct."248Without going into the variables of these conflicting views and cases, it proceeded to
state that:

The weight of authorities x x x seems to incline toward the rule denying the right to remove one
from office because of misconduct during a prior term, to which we fully subscribe.249 (Emphasis and
underscoring supplied)

The conclusion is at once problematic since this Court has now uncovered that there is really no established
weight of authority in the United States (US) favoring the doctrine of condonation, which, in the words of
Pascual, theorizes that an official's re-election denies the right to remove him from office due to a
misconduct during a prior term. In fact, as pointed out during the oral arguments of this case, at least
seventeen (17) states in the US have abandoned the condonation doctrine.250 The Ombudsman aptly cites
several rulings of various US State courts, as well as literature published on the matter, to demonstrate the
fact that the doctrine is not uniformly applied across all state jurisdictions. Indeed, the treatment is
nuanced:

(1) For one, it has been widely recognized that the propriety of removing a public officer from his current
term or office for misconduct which he allegedly committed in a prior term of office is governed by the
language of the statute or constitutional provision applicable to the facts of a particular case (see In Re
Removal of Member of Council Coppola).251 As an example, a Texas statute, on the one hand, expressly
allows removal only for an act committed during a present term: "no officer shall be prosecuted or removed
from office for any act he may have committed prior to his election to office" (see State ex rel. Rowlings v.
Loomis).252 On the other hand, the Supreme Court of Oklahoma allows removal from office for "acts of
commission, omission, or neglect committed, done or omitted during a previous or preceding term of office"
(see State v. Bailey)253 Meanwhile, in some states where the removal statute is silent or unclear, the case's
resolution was contingent upon the interpretation of the phrase "in office." On one end, the Supreme Court
of Ohio strictly construed a removal statute containing the phrase "misfeasance of malfeasance in office"
and thereby declared that, in the absence of clear legislative language making, the word "office" must be
limited to the single term during which the offense charged against the public officer occurred (see State ex
rel. Stokes v. Probate Court of Cuyahoga County)254 Similarly, the Common Pleas Court of Allegheny County,
Pennsylvania decided that the phrase "in office" in its state constitution was a time limitation with regard to
the grounds of removal, so that an officer could not be removed for misbehaviour which occurred; prior to
the taking of the office (see Commonwealth v. Rudman)255 The opposite was construed in the Supreme
Court of Louisiana which took the view that an officer's inability to hold an office resulted from the
commission of certain offenses, and at once rendered him unfit to continue in office, adding the fact that the
officer had been re-elected did not condone or purge the offense (see State ex rel. Billon v.
Bourgeois).256 Also, in the Supreme Court of New York, Apellate Division, Fourth Department, the court
construed the words "in office" to refer not to a particular term of office but to an entire tenure; it stated
that the whole purpose of the legislature in enacting the statute in question could easily be lost sight of, and
the intent of the law-making body be thwarted, if an unworthy official could not be removed during one term
for misconduct for a previous one (Newman v. Strobel).257

(2) For another, condonation depended on whether or not the public officer was a successor in the same
office for which he has been administratively charged. The "own-successor theory," which is recognized in
numerous States as an exception to condonation doctrine, is premised on the idea that each term of a re-
elected incumbent is not taken as separate and distinct, but rather, regarded as one continuous term of
office. Thus, infractions committed in a previous term are grounds for removal because a re-elected
incumbent has no prior term to speak of258 (see Attorney-General v. Tufts;259State v. Welsh;260Hawkins v.
Common Council of Grand Rapids;261Territory v. Sanches;262 and Tibbs v. City of Atlanta).263

(3) Furthermore, some State courts took into consideration the continuing nature of an offense in cases
where the condonation doctrine was invoked. In State ex rel. Douglas v. Megaarden,264 the public officer
charged with malversation of public funds was denied the defense of condonation by the Supreme Court of
Minnesota, observing that "the large sums of money illegally collected during the previous years are still
retained by him." In State ex rel. Beck v. Harvey265 the Supreme Court of Kansas ruled that "there is no
necessity" of applying the condonation doctrine since "the misconduct continued in the present term of
office[;] [thus] there was a duty upon defendant to restore this money on demand of the county
commissioners." Moreover, in State ex rel. Londerholm v. Schroeder,266 the Supreme Court of Kansas held
that "insofar as nondelivery and excessive prices are concerned, x x x there remains a continuing duty on
the part of the defendant to make restitution to the country x x x, this duty extends into the present term,
and neglect to discharge it constitutes misconduct."
Overall, the foregoing data clearly contravenes the preliminary conclusion in Pascual that there is a "weight
of authority" in the US on the condonation doctrine. In fact, without any cogent exegesis to show
that Pascual had accounted for the numerous factors relevant to the debate on condonation, an outright
adoption of the doctrine in this jurisdiction would not have been proper.

At any rate, these US cases are only of persuasive value in the process of this Court's decision-making.
"[They] are not relied upon as precedents, but as guides of interpretation."267 Therefore, the ultimate
analysis is on whether or not the condonation doctrine, as espoused in Pascual, and carried over in
numerous cases after, can be held up against prevailing legal norms. Note that the doctrine of stare
decisis does not preclude this Court from revisiting existing doctrine. As adjudged in the case of Belgica,
the stare decisis rule should not operate when there are powerful countervailing considerations against its
application.268 In other words, stare decisis becomes an intractable rule only when circumstances exist to
preclude reversal of standing precedent.269 As the Ombudsman correctly points out, jurisprudence, after all,
is not a rigid, atemporal abstraction; it is an organic creature that develops and devolves along with the
society within which it thrives.270 In the words of a recent US Supreme Court Decision, "[w]hat we can
decide, we can undecide."271

In this case, the Court agrees with the Ombudsman that since the time Pascual was decided, the legal
landscape has radically shifted. Again, Pascual was a 1959 case decided under the 1935 Constitution, which
dated provisions do not reflect the experience of the Filipino People under the 1973 and 1987 Constitutions.
Therefore, the plain difference in setting, including, of course, the sheer impact of the condonation doctrine
on public accountability, calls for Pascual's judicious re-examination.

D. Testing the Condonation Doctrine.

Pascual's ratio decidendi may be dissected into three (3) parts:

First, the penalty of removal may not be extended beyond the term in which the public officer was elected
for each term is separate and distinct:

Offenses committed, or acts done, during previous term are generally held not to furnish cause
for removal and this is especially true where the constitution provides that the penalty in proceedings for
removal shall not extend beyond the removal from office, and disqualification from holding office
for the term for which the officer was elected or appointed. (67 C.J.S. p. 248, citing Rice vs.
State, 161 S.W. 2d. 401; Montgomery vs. Nowell, 40 S.W. 2d. 418; People ex rel. Bagshaw vs.
Thompson, 130 P. 2d. 237; Board of Com'rs of Kingfisher County vs. Shutter, 281 P. 222; State vs.
Blake, 280 P. 388; In re Fudula, 147 A. 67; State vs. Ward, 43 S.W. 2d. 217).
The underlying theory is that each term is separate from other terms x x x.272

Second, an elective official's re-election serves as a condonation of previous misconduct, thereby cutting
the right to remove him therefor; and

[T]hat the reelection to office operates as a condonation of the officer's previous misconduct to the extent of
cutting off the right to remove him therefor. (43 Am. Jur. p. 45, citing Atty. Gen. vs. Hasty, 184 Ala. 121, 63
So. 559, 50 L.R.A. (NS) 553.273 (emphasis supplied)

Third, courts may not deprive the electorate, who are assumed to have known the life and character of
candidates, of their right to elect officers:

As held in Conant vs. Grogan (1887) 6 N.Y.S.R. 322, cited in 17 A.I.R. 281, 63 So. 559, 50 LRA (NS) 553 —
The Court should never remove a public officer for acts done prior to his present term of office. To do
otherwise would be to deprive the people of their right to elect their officers. When the people have
elected a man to office, it must be assumed that they did this with knowledge of his life and
character, and that they disregarded or forgave his faults or misconduct, if he had been guilty of
any. It is not for the court, by reason of such faults or misconduct to practically overrule the will of the
people.274 (Emphases supplied)

The notable cases on condonation following Pascual are as follows:

(1) Lizares v. Hechanova275 (May 17, 1966) - wherein the Court first applied the condonation doctrine,
thereby quoting the above-stated passages from Pascual in verbatim.

(2) Insco v. Sanchez, et al.276 (December 18, 1967) - wherein the Court clarified that the condonation
doctrine does not apply to a criminal case. It was explained that a criminal case is different from an
administrative case in that the former involves the People of the Philippines as a community, and is a public
wrong to the State at large; whereas, in the latter, only the populace of the constituency he serves is
affected. In addition, the Court noted that it is only the President who may pardon a criminal offense.

(3) Aguinaldo v. Santos277 (Aguinaldo; August 21, 1992) - a case decided under the 1987
Constitution wherein the condonation doctrine was applied in favor of then Cagayan Governor Rodolfo E.
Aguinaldo although his re-election merely supervened the pendency of, the proceedings.

(4) Salalima v. Guinsona, Jr.278 (Salalima; May 22, 1996) -wherein the Court reinforced the
condonation doctrine by stating that the same is justified by "sound public policy." According to
the Court, condonation prevented the elective official from being "hounded" by administrative cases filed by
his "political enemies" during a new term, for which he has to defend himself "to the detriment of public
service." Also, the Court mentioned that the administrative liability condoned by re-election covered the
execution of the contract and the incidents related therewith.279

(5) Mayor Garcia v. Mojica280 (Mayor Garcia; September 10, 1999) - wherein the benefit of the doctrine
was extended to then Cebu City Mayor Alvin B. Garcia who was administratively charged for his involvement
in an anomalous contract for the supply of asphalt for Cebu City, executed only four (4) days before the
upcoming elections. The Court ruled that notwithstanding the timing of the contract's execution, the
electorate is presumed to have known the petitioner's background and character, including his past
misconduct; hence, his subsequent re-election was deemed a condonation of his prior transgressions. More
importantly, the Court held that the determinative time element in applying the condonation doctrine should
be the time when the contract was perfected; this meant that as long as the contract was entered into
during a prior term, acts which were done to implement the same, even if done during a
succeeding term, do not negate the application of the condonation doctrine in favor of the
elective official.

(6) Salumbides, Jr. v. Office of the Ombudsman281 (Salumbides, Jr.; April 23, 2010) - wherein the Court
explained the doctrinal innovations in the Salalima and Mayor Garcia rulings, to wit:

Salalima v. Guingona, Jr. and Mayor Garcia v. Hon. Mojica reinforced the doctrine. The condonation rule
was applied even if the administrative complaint was not filed before the reelection of the public
official, and even if the alleged misconduct occurred four days before the elections,
respectively. Salalima did not distinguish as to the date of filing of the administrative complaint, as long as
the alleged misconduct was committed during the prior term, the precise timing or period of
which Garcia did not further distinguish, as long as the wrongdoing that gave rise to the public official's
culpability was committed prior to the date of reelection.282 (Emphasis supplied)ChanRob les Vi rtualaw lib rary

The Court, citing Civil Service Commission v. Sojor,283 also clarified that the condonation doctrine would
not apply to appointive officials since, as to them, there is no sovereign will to disenfranchise.

(7) And finally, the above discussed case of Governor Garcia, Jr. -wherein the Court remarked that it
would have been prudent for the appellate court therein to have issued a temporary restraining order
against the implementation of a preventive suspension order issued by the Ombudsman in view of the
condonation doctrine.

A thorough review of the cases post-1987, among others, Aguinaldo, Salalima, Mayor Garcia, and Governor
Garcia, Jr. - all cited by the CA to justify its March 16, 2015 and April 6, 2015 Resolutions directing the
issuance of the assailed injunctive writs - would show that the basis for condonation under the prevailing
constitutional and statutory framework was never accounted for. What remains apparent from the text of
these cases is that the basis for condonation, as jurisprudential doctrine, was - and still remains - the
above-cited postulates of Pascual, which was lifted from rulings of US courts where condonation was amply
supported by their own state laws. With respect to its applicability to administrative cases, the core premise
of condonation - that is, an elective official's re-election cuts qff the right to remove him for an
administrative offense committed during a prior term - was adopted hook, line, and sinker in our
jurisprudence largely because the legality of that doctrine was never tested against existing legal norms. As
in the US, the propriety of condonation is - as it should be -dependent on the legal foundation of the
adjudicating jurisdiction. Hence, the Court undertakes an examination of our current laws in order to
determine if there is legal basis for the continued application of the doctrine of condonation.

The foundation of our entire legal system is the Constitution. It is the supreme law of the land;284 thus, the
unbending rule is that every statute should be read in light of the Constitution.285 Likewise, the Constitution
is a framework of a workable government; hence, its interpretation must take into account the complexities,
realities, and politics attendant to the operation of the political branches of government.286

As earlier intimated, Pascual was a decision promulgated in 1959. Therefore, it was decided within the
context of the 1935 Constitution which was silent with respect to public accountability, or of the nature of
public office being a public trust. The provision in the 1935 Constitution that comes closest in dealing with
public office is Section 2, Article II which states that "[t]he defense of the State is a prime duty of
government, and in the fulfillment of this duty all citizens may be required by law to render personal military
or civil service."287 Perhaps owing to the 1935 Constitution's silence on public accountability, and considering
the dearth of jurisprudential rulings on the matter, as well as the variance in the policy considerations, there
was no glaring objection confronting the Pascual Court in adopting the condonation doctrine that originated
from select US cases existing at that time.

With the advent of the 1973 Constitution, the approach in dealing with public officers underwent a
significant change. The new charter introduced an entire article on accountability of public officers, found in
Article XIII. Section 1 thereof positively recognized, acknowledged, and declared that "[p]ublic office is a
public trust." Accordingly, "[p]ublic officers and employees shall serve with the highest degree of
responsibility, integrity, loyalty and efficiency, and shall remain accountable to the people."

After the turbulent decades of Martial Law rule, the Filipino People have framed and adopted the 1987
Constitution, which sets forth in the Declaration of Principles and State Policies in Article II that "[t]he
State shall maintain honesty and integrity in the public service and take positive and effective
measures against graft and corruption."288 Learning how unbridled power could corrupt public servants
under the regime of a dictator, the Framers put primacy on the integrity of the public service by declaring it
as a constitutional principle and a State policy. More significantly, the 1987 Constitution strengthened and
solidified what has been first proclaimed in the 1973 Constitution by commanding public officers to be
accountable to the people at all times:

Section 1. Public office is a public trust. Public officers and employees must at all times be accountable
to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency and act
with patriotism and justice, and lead modest lives. ChanRoblesVirt ualawli bra ry

In Belgica, it was explained that:

[t]he aphorism forged under Section 1, Article XI of the 1987 Constitution, which states that "public office is
a public trust," is an overarching reminder that every instrumentality of government should exercise their
official functions only in accordance with the principles of the Constitution which embodies the parameters of
the people's trust. The notion of a public trust connotes accountability x x x.289 (Emphasis supplied) ChanRob les Virtualawl ibra ry

The same mandate is found in the Revised Administrative Code under the section of the Civil Service
Commission,290 and also, in the Code of Conduct and Ethical Standards for Public Officials and Employees.291

For local elective officials like Binay, Jr., the grounds to discipline, suspend or remove an elective local
official from office are stated in Section 60 of Republic Act No. 7160,292 otherwise known as the "Local
Government Code of 1991" (LGC), which was approved on October 10 1991, and took effect on January 1,
1992:

Section 60. Grounds for Disciplinary Action. - An elective local official may be disciplined, suspended, or
removed from office on any of the r following grounds: c hanRoble svirtual Lawlib rary

(a) Disloyalty to the Republic of the Philippines; c ralawlaw lib rary

(b) Culpable violation of the Constitution; cralawlawlib ra ry

(c) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty; cralawlawl ibra ry

(d) Commission of any offense involving moral turpitude or an offense punishable by at least prision
mayor; cralawlawli bra ry

(e) Abuse of authority; cralawlawlib rary

(f) Unauthorized absence for fifteen (15) consecutive working days, except in the case of members of
the sangguniang panlalawigan, sangguniang panlunsod, sanggunian bayan, and sangguniang barangay; cralawlawlib rary
(g) Application for, or acquisition of, foreign citizenship or residence or the status of an immigrant of another
country; and
(h) Such other grounds as may be provided in this Code and other laws.
An elective local official may be removed from office on the grounds enumerated above by order of the
proper court.

Related to this provision is Section 40 (b) of the LGC which states that those removed from office as a
result of an administrative case shall be disqualified from running for any elective local position:

Section 40. Disqualifications. - The following persons are disqualified from running for any elective local
position:

xxxx

(b) Those removed from office as a result of an administrative case;

x x x x (Emphasis supplied) ChanRoblesVirtualawl ibra ry

In the same sense, Section 52 (a) of the RRACCS provides that the penalty of dismissal from service
carries the accessory penalty of perpetual disqualification from holding public office:

Section 52. - Administrative Disabilities Inherent in Certain Penalties. -

a. The penalty of dismissal shall carry with it cancellation of eligibility, forfeiture of retirement
benefits, perpetual disqualification from holding public office, and bar from taking the civil
service examinations.

In contrast, Section 66 (b) of the LGC states that the penalty of suspension shall not exceed the
unexpired term of the elective local official nor constitute a bar to his candidacy for as long as he meets the
qualifications required for the office. Note, however, that the provision only pertains to the duration of the
penalty and its effect on the official's candidacy. Nothing therein states that the administrative
liability therefor is extinguished by the fact of re-election:

Section 66. Form and Notice of Decision. - x x x.

xxxx

(b) The penalty of suspension shall not exceed the unexpired term of the respondent or a period of six (6)
months for every administrative offense, nor shall said penalty be a bar to the candidacy of the respondent
so suspended as long as he meets the qualifications required for the office.

Reading the 1987 Constitution together with the above-cited legal provisions now leads this Court to the
conclusion that the doctrine of condonation is actually bereft of legal bases.

To begin with, the concept of public office is a public trust and the corollary requirement of
accountability to the people at all times, as mandated under the 1987 Constitution, is plainly
inconsistent with the idea that an elective local official's administrative liability for a misconduct committed
during a prior term can be wiped off by the fact that he was elected to a second term of office, or even
another elective post. Election is not a mode of condoning an administrative offense, and there is
simply no constitutional or statutory basis in our jurisdiction to support the notion that an official elected for
a different term is fully absolved of any administrative liability arising from an offense done during a prior
term. In this jurisdiction, liability arising from administrative offenses may be condoned bv the
President in light of Section 19, Article VII of the 1987 Constitution which was interpreted in Llamas v.
Orbos293 to apply to administrative offenses:

The Constitution does not distinguish between which cases executive clemency may be exercised by the
President, with the sole exclusion of impeachment cases. By the same token, if executive clemency may be
exercised only in criminal cases, it would indeed be unnecessary to provide for the exclusion of
impeachment cases from the coverage of Article VII, Section 19 of the Constitution. Following petitioner's
proposed interpretation, cases of impeachment are automatically excluded inasmuch as the same do not
necessarily involve criminal offenses.

In the same vein, We do not clearly see any valid and convincing , reason why the President cannot grant
executive clemency in administrative cases. It is Our considered view that if the President can grant
reprieves, commutations and pardons, and remit fines and forfeitures in criminal cases, with much more
reason can she grant executive clemency in administrative cases, which are clearly less serious than criminal
offenses.

Also, it cannot be inferred from Section 60 of the LGC that the grounds for discipline enumerated therein
cannot anymore be invoked against an elective local official to hold him administratively liable once he is re-
elected to office. In fact, Section 40 (b) of the LGC precludes condonation since in the first place, an elective
local official who is meted with the penalty of removal could not be re-elected to an elective local position
due to a direct disqualification from running for such post. In similar regard, Section 52 (a) of the RRACCS
imposes a penalty of perpetual disqualification from holding public office as an accessory to the penalty of
dismissal from service.

To compare, some of the cases adopted in Pascual were decided by US State jurisdictions wherein the
doctrine of condonation of administrative liability was supported by either a constitutional or statutory
provision stating, in effect, that an officer cannot be removed by a misconduct committed during a previous
term,294 or that the disqualification to hold the office does not extend beyond the term in which the
official's delinquency occurred.295 In one case,296 the absence of a provision against the re-election of an
officer removed - unlike Section 40 (b) of the LGC-was the justification behind condonation. In another
case,297 it was deemed that condonation through re-election was a policy under their constitution -
which adoption in this jurisdiction runs counter to our present Constitution's requirements on public
accountability. There was even one case where the doctrine of condonation was not adjudicated upon but
only invoked by a party as a ground;298 while in another case, which was not reported in full in the official
series, the crux of the disposition was that the evidence of a prior irregularity in no way pertained to the
charge at issue and therefore, was deemed to be incompetent.299 Hence, owing to either their variance or
inapplicability, none of these cases can be used as basis for the continued adoption of the condonation
doctrine under our existing laws.

At best, Section 66 (b) of the LGC prohibits the enforcement of the penalty of suspension beyond the
unexpired portion of the elective local official's prior term, and likewise allows said official to still run for re-
election This treatment is similar to People ex rel Bagshaw v. Thompson300 and Montgomery v.
Novell301 both cited in Pascual, wherein it was ruled that an officer cannot be suspended for a misconduct
committed during a prior term. However, as previously stated, nothing in Section 66 (b) states that the
elective local official's administrative liability is extinguished by the fact of re-election. Thus, at all events, no
legal provision actually supports the theory that the liability is condoned.

Relatedly it should be clarified that there is no truth in Pascual's postulation that the courts would be
depriving the electorate of their right to elect their officers if condonation were not to be sanctioned. In
political law, election pertains to the process by which a particular constituency chooses an individual to hold
a public office. In this jurisdiction, there is, again, no legal basis to conclude that election automatically
implies condonation. Neither is there any legal basis to say that every democratic and republican state has
an inherent regime of condonation. If condonation of an elective official's administrative liability would
perhaps, be allowed in this jurisdiction, then the same should have been provided by law under our
governing legal mechanisms. May it be at the time of Pascual or at present, by no means has it been shown
that such a law, whether in a constitutional or statutory provision, exists. Therefore, inferring from this
manifest absence, it cannot be said that the electorate's will has been abdicated.

Equally infirm is Pascual's proposition that the electorate, when re-electing a local official, are assumed to
have done so with knowledge of his life and character, and that they disregarded or forgave his faults or
misconduct, if he had been guilty of any. Suffice it to state that no such presumption exists in any
statute or procedural rule.302 Besides, it is contrary to human experience that the electorate would have
full knowledge of a public official's misdeeds. The Ombudsman correctly points out the reality that most
corrupt acts by public officers are shrouded in secrecy, and concealed from the public. Misconduct
committed by an elective official is easily covered up, and is almost always unknown to the
electorate when they cast their votes.303 At a conceptual level, condonation presupposes that the
condoner has actual knowledge of what is to be condoned. Thus, there could be no condonation of an
act that is unknown. As observed in Walsh v. City Council of Trenton304 decided by the New Jersey
Supreme Court:

Many of the cases holding that re-election of a public official prevents his removal for acts done in a
preceding term of office are reasoned out on the theory of condonation. We cannot subscribe to that theory
because condonation, implying as it does forgiveness, connotes knowledge and in the absence of knowledge
there can be no condonation. One cannot forgive something of which one has no knowledge.

That being said, this Court simply finds no legal authority to sustain the condonation doctrine in this
jurisdiction. As can be seen from this discourse, it was a doctrine adopted from one class of US rulings way
back in 1959 and thus, out of touch from - and now rendered obsolete by - the current legal regime. In
consequence, it is high time for this Court to abandon the condonation doctrine that originated from Pascual,
and affirmed in the cases following the same, such as Aguinaldo, Salalima, Mayor Garcia, and Governor
Garcia, Jr. which were all relied upon by the CA.

It should, however, be clarified that this Court's abandonment of the condonation doctrine should
be prospective in application for the reason that judicial decisions applying or interpreting the laws or the
Constitution, until reversed, shall form part of the legal system of the Philippines.305 Unto this Court
devolves the sole authority to interpret what the Constitution means, and all persons are bound to follow its
interpretation. As explained in De Castro v. Judicial Bar Council.306

Judicial decisions assume the same authority as a statute itself and, until authoritatively abandoned,
necessarily become, to the extent that they are applicable, the criteria that must control the actuations, not
only of those called upon to abide by them, but also of those duty-bound to enforce obedience to them.307

Hence, while the future may ultimately uncover a doctrine's error, it should be, as a general rule,
recognized as "good law" prior to its abandonment. Consequently, the people's reliance thereupon should be
respected. The landmark case on this matter is People v. Jabinal,308 wherein it was ruled:

[W]hen a doctrine of this Court is overruled and a different view is adopted, the new doctrine should be
applied prospectively, and should not apply to parties who had relied on the old doctrine and acted on the
faith thereof.

Later, in Spouses Benzonan v. CA,309 it was further elaborated:

[Pursuant to Article 8 of the Civil Code "judicial decisions applying or interpreting the laws or the
Constitution shall form a part of the legal system of the Philippines." But while our decisions form part of the
law of the land, they are also subject to Article 4 of the Civil Code which provides that "laws shall have no
retroactive effect unless the contrary is provided." This is expressed in the familiar legal maxim lex prospicit,
non respicit, the law looks forward not backward. The rationale against retroactivity is easy to perceive. The
retroactive application of a law usually divests rights that have already become vested or impairs the
obligations of contract and hence, is unconstitutional.310ChanRoblesVi rtua lawlib rary

Indeed, the lessons of history teach us that institutions can greatly benefit from hindsight and rectify its
ensuing course. Thus, while it is truly perplexing to think that a doctrine which is barren of legal anchorage
was able to endure in our jurisprudence for a considerable length of time, this Court, under a new
membership, takes up the cudgels and now abandons the condonation doctrine.

E. Consequence of ruling.

As for this section of the Decision, the issue to be resolved is whether or not the CA committed grave
abuse of discretion amounting to lack or excess of jurisdiction in issuing the assailed injunctive
writs.

It is well-settled that an act of a court or tribunal can only be considered as with grave abuse of
discretion when such act is done in a capricious or whimsical exercise of judgment as is equivalent
to lack of jurisdiction. The abuse of discretion must be so patent and gross as to amount to an evasion of
a positive duty or to a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of
law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and
hostility.311 It has also been held that "grave abuse of discretion arises when a lower court or
tribunal patently violates the Constitution, the law or existing jurisprudence."312

As earlier established, records disclose that the CA's resolutions directing the issuance of the assailed
injunctive writs were all hinged on cases enunciating the condonation doctrine. To recount, the March 16,
2015 Resolution directing the issuance of the subject TRO was based on the case of Governor Garcia, Jr.,
while the April 6, 2015 Resolution directing the issuance of the subject WPI was based on the cases
of Aguinaldo, Salalima, Mayor Garcia, and again, Governor Garcia, Jr. Thus, by merely following settled
precedents on the condonation doctrine, which at that time, unwittingly remained "good law," it cannot be
concluded that the CA committed a grave abuse of discretion based on its legal attribution above.
Accordingly, the WPI against the Ombudsman's preventive suspension order was correctly issued.

With this, the ensuing course of action should have been for the CA to resolve the main petition
for certiorari in CA-G.R. SP No. 139453 on the merits. However, considering that the Ombudsman, on
October 9, 2015, had already found Binay, Jr. administratively liable and imposed upon him the penalty of
dismissal, which carries the accessory penalty of perpetual disqualification from holding public office, for the
present administrative charges against him, the said CA petition appears to have been mooted.313 As initially
intimated, the preventive suspension order is only an ancillary issuance that, at its core, serves the purpose
of assisting the Office of the Ombudsman in its investigation. It therefore has no more purpose - and
perforce, dissolves - upon the termination of the office's process of investigation in the instant
administrative case.

F. Exceptions to the mootness principle.

This notwithstanding, this Court deems it apt to clarify that the mootness of the issue regarding the validity
of the preventive suspension order subject of this case does not preclude any of its foregoing
determinations, particularly, its abandonment of the condonation doctrine. As explained in Belgica, '"the
moot and academic principle' is not a magical formula that can automatically dissuade the Court in resolving
a case. The Court will decide cases, otherwise moot, if: first, there is a grave violation of the
Constitution; second, the exceptional character of the situation and the paramount public interest is
involved; third, when the constitutional issue raised requires formulation of controlling principles to guide
the bench, the bar, and the public; and fourth, the case is capable of repetition yet evading review."314 All
of these scenarios obtain in this case:

First, it would be a violation of the Court's own duty to uphold and defend the Constitution if it were not to
abandon the condonation doctrine now that its infirmities have become apparent. As extensively discussed,
the continued application of the condonation doctrine is simply impermissible under the auspices of the
present Constitution which explicitly mandates that public office is a public trust and that public officials shall
be accountable to the people at all times.

Second, the condonation doctrine is a peculiar jurisprudential creation that has persisted as a defense of
elective officials to escape administrative liability. It is the first time that the legal intricacies of this doctrine
have been brought to light; thus, this is a situation of exceptional character which this Court must ultimately
resolve. Further, since the doctrine has served as a perennial obstacle against exacting public accountability
from the multitude of elective local officials throughout the years, it is indubitable that paramount public
interest is involved.

Third, the issue on the validity of the condonation doctrine clearly requires the formulation of controlling
principles to guide the bench, the bar, and the public. The issue does not only involve an in-depth exegesis
of administrative law principles, but also puts to the forefront of legal discourse the potency of the
accountability provisions of the 1987 Constitution. The Court owes it to the bench, the bar, and the public to
explain how this controversial doctrine came about, and now, its reasons for abandoning the same in view of
its relevance on the parameters of public office.

And fourth, the defense of condonation has been consistently invoked by elective local officials against the
administrative charges filed against them. To provide a sample size, the Ombudsman has informed the
Court that "for the period of July 2013 to December 2014 alone, 85 cases from the Luzon Office and 24
cases from the Central Office were dismissed on the ground of condonation. Thus, in just one and a half
years, over a hundred cases of alleged misconduct - involving infractions such as dishonesty, oppression,
gross neglect of duty and grave misconduct - were placed beyond the reach of the Ombudsman's
investigatory and prosecutorial powers."315 Evidently, this fortifies the finding that the case is capable of
repetition and must therefore, not evade review.
In any event, the abandonment of a doctrine is wholly within the prerogative of the Court. As mentioned, it
is its own jurisprudential creation and may therefore, pursuant to its mandate to uphold and defend the
Constitution, revoke it notwithstanding supervening events that render the subject of discussion moot. chanrob leslaw

V.

With all matters pertaining to CA-G.R. SP No. 139453 passed upon, the Court now rules on the final issue on
whether or not the CA's Resolution316 dated March 20, 2015 directing the Ombudsman to comment on
Binay, Jr.'s petition for contempt in CA-G.R. SP No. 139504 is improper and illegal.

The sole premise of the Ombudsman's contention is that, as an impeachable officer, she cannot be the
subject of a charge for indirect contempt317 because this action is criminal in nature and the penalty therefor
would result in her effective removal from office.318 However, a reading of the aforesaid March 20, 2015
Resolution does not show that she has already been subjected to contempt proceedings. This issuance, in?
fact, makes it clear that notwithstanding the directive for the Ombudsman to comment, the CA has not
necessarily given due course to Binay, Jr.'s contempt petition:

Without necessarily giving due course to the Petition for Contempt respondents [Hon. Conchita
Carpio Morales, in her capacity as the Ombudsman, and the Department of Interior and Local Government]
are hereby DIRECTED to file Comment on the Petition/Amended and Supplemental Petition for Contempt
(CA-G.R. SP No. 139504) within an inextendible period of three (3) days from receipt hereof. (Emphasis and
underscoring supplied) ChanRob les Virtualawl ibra ry

Thus, even if the Ombudsman accedes to the CA's directive by filing a comment, wherein she may properly
raise her objections to the contempt proceedings by virtue of her being an impeachable officer, the CA, in
the exercise of its sound judicial discretion, may still opt not to give due course to Binay, Jr.'s contempt
petition and accordingly, dismiss the same. Sjmply put, absent any indication that the contempt petition has
been given due course by the CA, it would then be premature for this Court to rule on the issue. The
submission of the Ombudsman on this score is perforce denied.

WHEREFORE, the petition is PARTLY GRANTED. Under the premises of this Decision, the Court resolves
as follows:

(a) the second paragraph of Section 14 of Republic Act No. 6770 is declared UNCONSTITUTIONAL, while
the policy against the issuance of provisional injunctive writs by courts other than the Supreme Court to
enjoin an investigation conducted by the Office of the Ombudsman under the first paragraph of the said
provision is DECLARED ineffective until the Court adopts the same as part of the rules of procedure through
an administrative circular duly issued therefor; cralaw lawlib rary

(b) The condonation doctrine is ABANDONED, but the abandonment is PROSPECTIVE in effect; cralawlawlib rary

(c) The Court of Appeals (CA) is DIRECTED to act on respondent Jejomar Erwin S. Binay, Jr.'s (Binay, Jr.)
petition for certiorari in CA-G.R. SP No. 139453 in light of the Office of the Ombudsman's supervening
issuance of its Joint Decision dated October 9, 2015 finding Binay, Jr. administratively liable in the six (6)
administrative complamts, docketed as OMB-C-A-15-0058, OMB-C-A-15-0059, OMB-C-A-15-0060, OMB-C-
A-15-0061, OMB-C-A-15-0062, and OMB-C-A-15-0063; and

(d) After the filing of petitioner Ombudsman Conchita Carpio Morales's comment, the CA is DIRECTED to
resolve Binay, Jr.'s petition for contempt in CA-G.R. SP No. 139504 with utmost dispatch.

SO ORDERED. chanroblesvi rtua llawli bra ry

 August 15, 2017

G.R. No. 226679

SALVADOR ESTIPONA, JR. y ASUELA, Petitioner,

vs.
HON. FRANK E. LOBRIGO, Presiding Judge of the Regional Trial Court, Branch 3, Legazpi
City, Albay, and PEOPLE OF THE PHILIPPINES, Respondents.

DECISION

PERALTA, J.:

Challenged in this petition for certiorari and prohibition1 is the constitutionality of Section 23 of
Republic Act (R.A.) No. 9165, or the "Comprehensive Dangerous Drugs Act of 2002, "2 which
provides:

SEC 23. Plea-Bargaining Provision. - Any person charged under any provision of this Act regardless
of the imposable penalty shall not be allowed to avail of the provision on plea-bargaining.3

The facts are not in dispute.

Petitioner Salvador A. Estipona, Jr. (Estipona) is the accused in Criminal Case No. 13586 for
violation of Section 11, Article II of R.A. No. 9165 (Possession of Dangerous Drugs). The Information
alleged:

That on or about the 21st day of March, 2016, in the City of Legazpi, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, not being lawfully authorized to
possess or otherwise use any regulated drug and without the corresponding license or prescription,
did then and there, willfully, unlawfully and feloniously have, in his possession and under his control
and custody, one (1) piece heat-sealed transparent plastic sachet marked as VOP 03/21/16- l G
containing 0.084 [gram] of white crystalline substance, which when examined were found to be
positive for Methamphetamine Hydrocloride (Shabu), a dangerous drug.

CONTRARY TO LAW.4

On June 15, 2016, Estipona filed a Motion to Allow the Accused to Enter into a Plea Bargaining
Agreement,5 praying to withdraw his not guilty plea and, instead, to enter a plea of guilty for violation
of Section 12, Article II of R.A. No. 9165 (Possession of Equipment, Instrument, Apparatus and
Other Paraphernalia for Dangerous Drugs) with a penalty of rehabilitation in view of his being a first-
time offender and the minimal quantity of the dangerous drug seized in his possession. He argued
that Section 23 of R.A. No. 9165 violates: (1) the intent of the law expressed in paragraph 3, Section
2 thereof; (2) the rule-making authority of the Supreme Court under Section 5(5), Article VIII of the
1987 Constitution; and (3) the principle of separation of powers among the three equal branches of
the government.

In its Comment or Opposition6 dated June 27, 2016, the prosecution moved for the denial of the
motion for being contrary to Section 23 of R.A. No. 9165, which is said to be justified by the
Congress' prerogative to choose which offense it would allow plea bargaining. Later, in a Comment
or Opposition7 dated June 29, 2016, it manifested that it "is open to the Motion of the accused to
enter into plea bargaining to give life to the intent of the law as provided in paragraph 3, Section 2 of
[R.A. No.] 9165, however, with the express mandate of Section 23 of [R.A. No.] 9165 prohibiting plea
bargaining, [it] is left without any choice but to reject the proposal of the accused."

On July 12, 2016, respondent Judge Frank E. Lobrigo of the Regional Trial Court (RTC), Branch 3,
Legazpi City, Albay, issued an Order denying Estipona's motion. It was opined:

The accused posited in his motion that Sec. 23 of RA No. 9165, which prohibits plea bargaining,
encroaches on the exclusive constitutional power of the Supreme Court to promulgate rules of
procedure because plea bargaining is a "rule of procedure." Indeed, plea bargaining forms part of
the Rules on Criminal Procedure, particularly under Rule 118, the rule on pre-trial conference. It is
only the Rules of Court promulgated by the Supreme Court pursuant to its constitutional rule-making
power that breathes life to plea bargaining. It cannot be found in any statute.

Without saying so, the accused implies that Sec. 23 of Republic Act No. 9165 is unconstitutional
because it, in effect, suspends the operation of Rule 118 of the Rules of Court insofar as it allows
plea bargaining as part of the mandatory pre-trial conference in criminal cases.

The Court sees merit in the argument of the accused that it is also the intendment of the law, R.A.
No. 9165, to rehabilitate an accused of a drug offense. Rehabilitation is thus only possible in cases
of use of illegal drugs because plea bargaining is disallowed. However, by case law, the Supreme
Court allowed rehabilitation for accused charged with possession of paraphernalia with traces of
dangerous drugs, as held in People v. Martinez, G.R. No. 191366, 13 December 2010. The ruling of
the Supreme Court in this case manifested the relaxation of an otherwise stringent application of
Republic Act No. 9165 in order to serve an intent for the enactment of the law, that is, to rehabilitate
the offender.

Within the spirit of the disquisition in People v. Martinez, there might be plausible basis for the
declaration of Sec. 23 of R.A. No. 9165, which bars plea bargaining as unconstitutional because
indeed the inclusion of the provision in the law encroaches on the exclusive constitutional power of
the Supreme Court.

While basic is the precept that lower courts are not precluded from resolving, whenever warranted,
constitutional questions, the Court is not unaware of the admonition of the Supreme Court that lower
courts must observe a becoming modesty in examining constitutional questions. Upon which
admonition, it is thus not for this lower court to declare Sec. 23 of R.A. No. 9165 unconstitutional
given the potential ramifications that such declaration might have on the prosecution of illegal drug
cases pending before this judicial station.8

Estipona filed a motion for reconsideration, but it was denied in an Order9 dated July 26, 2016;
hence, this petition raising the issues as follows:

I.

WHETHER SECTION 23 OF REPUBLIC ACT NO. 9165, WHICH PROHIBITS PLEA BARGAINING
IN ALL VIOLATIONS OF THE SAID LAW, IS UNCONSTITUTIONAL FOR BEING VIOLATIVE OF
THE CONSTITUTIONAL RIGHT TO EQUAL PROTECTION OF THE LAW.

II.
WHETHER SECTION 23 OF REPUBLIC ACT NO. 9165 IS UNCONSTITUTIONAL AS IT
ENCROACHED UPON THE POWER OF THE SUPREME COURT TO PROMULGATE RULES OF
PROCEDURE.

III.

WHETHER THE REGIONAL TRIAL COURT, AS PRESIDED BY HON. FRANK E. LOBRIGO,

COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN IT REFUSED TO DECLARE SECTION 23 OF REPUBLIC ACT NO. 9165
AS UNCONSTITUTIONAL.10

We grant the petition.

PROCEDURAL MATTERS

The People of the Philippines, through the Office of the Solicitor General (OSG), contends that the
petition should be dismissed outright for being procedurally defective on the grounds that: (1) the
Congress should have been impleaded as an indispensable party; (2) the constitutionality of Section
23 of R.A. No. 9165 cannot be attacked collaterally; and (3) the proper recourse should have been a
petition for declaratory relief before this Court or a petition for certiorari before the RTC. Moreover,
the OSG argues that the petition fails to satisfy the requisites of judicial review because: (1) Estipona
lacks legal standing to sue for failure to show direct injury; (2) there is no actual case or controversy;
and (3) the constitutionality of Section 23 of R.A. No. 9165 is not the lis mota of the case.

On matters of technicality, some points raised by the OSG maybe correct. Nonetheless, without
1âw phi 1

much further ado, it must be underscored that it is within this Court's power to make exceptions to
the rules of court. Under proper conditions, We may permit the full and exhaustive ventilation of the
parties' arguments and positions despite the supposed technical infirmities of a petition or its alleged
procedural flaws. In discharging its solemn duty as the final arbiter of constitutional issues, the Court
shall not shirk from its obligation to determine novel issues, or issues of first impression, with far-
reaching implications.11

Likewise, matters of procedure and technicalities normally take a backseat when issues of
substantial and transcendental importance are present.12 We have acknowledged that the
Philippines' problem on illegal drugs has reached "epidemic," "monstrous," and "harrowing"
proportions,13 and that its disastrously harmful social, economic, and spiritual effects have broken the
lives, shattered the hopes, and destroyed the future of thousands especially our young citizens.14 At
the same time, We have equally noted that "as urgent as the campaign against the drug problem
must be, so must we as urgently, if not more so, be vigilant in the protection of the rights of the
accused as mandated by the Constitution x x x who, because of excessive zeal on the part of the
law enforcers, may be unjustly accused and convicted."15 Fully aware of the gravity of the drug
menace that has beset our country and its direct link to certain crimes, the Court, within its sphere,
must do its part to assist in the all-out effort to lessen, if not totally eradicate, the continued presence
of drug lords, pushers and users.16

Bearing in mind the very important and pivotal issues raised in this petition, technical matters should
not deter Us from having to make the final and definitive pronouncement that everyone else depends
for enlightenment and guidance.17 When public interest requires, the Court may brush aside
procedural rules in order to resolve a constitutional issue.18
x x x [T]he Court is invested with the power to suspend the application of the rules of procedure as a
necessary complement of its power to promulgate the same. Barnes v. Hon. Quijano
Padilla discussed the rationale for this tenet, viz. :

Let it be emphasized that the rules of procedure should be viewed as mere tools designed to
facilitate the attainment of justice. Their strict and rigid application, which would result in
technicalities that tend to frustrate rather than promote substantial justice, must always be
eschewed. Even the Rules of Court reflect this principle. The power to suspend or even disregard
rules can be so pervasive and compelling as to alter even that which this Court itself has already
declared to be final, x x x.

The emerging trend in the rulings of this Court is to afford every party litigant the amplest opportunity
for the proper and just determination of his cause, free from the constraints of technicalities. Time
and again, this Court has consistently held that rules must not be applied rigidly so as not to override
substantial justice. 19

SUBSTANTIVE ISSUES

Rule-making power of the Supreme

Court under the 1987 Constitution

Section 5(5), A1iicle VIII of the 1987 Constitution explicitly provides:

Sec. 5. The Supreme Court shall have the following powers:

xxxx

(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading,
practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and
legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive
procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and
shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and
quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.

The power to promulgate rules of pleading, practice and procedure is now Our exclusive domain and
no longer shared with the Executive and Legislative departments.20 In Echegaray v. Secretary of
Justice, 21 then Associate Justice (later Chief Justice) Reynato S. Puno traced the history of the
Court's rule-making power and highlighted its evolution and development.

x x x It should be stressed that the power to promulgate rules of pleading, practice and procedure
was granted by our Constitutions to this Court to enhance its independence, for in the words of
Justice Isagani Cruz "without independence and integrity, courts will lose that popular trust so
essential to the maintenance of their vigor as champions of justice." Hence, our Constitutions
continuously vested this power to this Court for it enhances its independence. Under the 1935
Constitution, the power of this Court to promulgate rules concerning pleading, practice and
procedure was granted but it appeared to be co-existent with legislative power for it was subject to
the power of Congress to repeal, alter or supplement. Thus, its Section 13, Article VIII provides:

"Sec. 13. The Supreme Court shall have the power to promulgate rules concerning pleading,
practice and procedure in all courts, and the admission to the practice of law. Said rules shall be
uniform for all courts of the same grade and shall not diminish, increase, or modify substantive
rights. The existing laws on pleading, practice and procedure are hereby repealed as statutes, and
are declared Rules of Court, subject to the power of the Supreme Court to alter and modify the
same. The Congress shall have the power to repeal, alter or supplement the rules concerning
pleading, practice and procedure, and the admission to the practice of law in the Philippines."

The said power of Congress, however, is not as absolute as it may appear on its surface. In In re:
Cunanan Congress in the exercise of its power to amend rules of the Supreme Court regarding
admission to the practice of law, enacted the Bar Flunkers Act of 1953 which considered as a
passing grade, the average of 70% in the bar examinations after July 4, 1946 up to August 1951 and
71 % in the 1952 bar examinations. This Court struck down the law as unconstitutional. In
his ponencia, Mr. Justice Diokno held that "x x x the disputed law is not a legislation; it is a judgment
- a judgment promulgated by this Court during the aforecited years affecting the bar candidates
concerned; and although this Court certainly can revoke these judgments even now, for justifiable
reasons, it is no less certain that only this Court, and not the legislative nor executive department,
that may do so. Any attempt on the part of these departments would be a clear usurpation of its
function, as is the case with the law in question." The venerable jurist further ruled: "It is obvious,
therefore, that the ultimate power to grant license for the practice of law belongs exclusively to this
Court, and the law passed by Congress on the matter is of permissive character, or as other
authorities say, merely to fix the minimum conditions for the license." By its ruling, this Court
qualified the absolutist tone of the power of Congress to "repeal, alter or supplement the rules
concerning pleading, practice and procedure, and the admission to the practice of law in the
Philippines.

The ruling of this Court in In re Cunanan was not changed by the 1973 Constitution. For the 1973
Constitution reiterated the power of this Court "to promulgate rules concerning pleading, practice and
procedure in all courts, x x x which, however, may be repealed, altered or supplemented by the
Batasang Pambansa x x x." More completely, Section 5(2)5 of its Article X provided:

xxxx

"Sec. 5. The Supreme Court shall have the following powers.

xxxx

(5) Promulgate rules concerning pleading, practice, and procedure in all courts, the admission to the
practice of law, and the integration of the Bar, which, however, may be repealed, altered, or
supplemented by the Batasang Pambansa. Such rules shall provide a simplified and inexpensive
procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and
shall not diminish, increase, or modify substantive rights."

Well worth noting is that the 1973 Constitution further strengthened the independence of the
judiciary by giving to it the additional power to promulgate rules governing the integration of the Bar.

The 1987 Constitution molded an even stronger and more independent judiciary. Among others, it
enhanced the rule making power of this Court. Its Section 5(5), Article VIII provides:

xxxx

"Section 5. The Supreme Court shall have the following powers:

xxx
(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading,
practice and procedure in all courts, the admission to the practice of law, the Integrated Bar, and
legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive
procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and
shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and
quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. "

The rule making power of this Court was expanded. This Court for the first time was given the power
to promulgate rules concerning the protection and enforcement of constitutional rights. The Court
was also granted for the .first time the power to disapprove rules of procedure of special courts and
quasi-judicial bodies. But most importantly, the 1987 Constitution took away the power of Congress
to repeal, alter, or supplement rules concerning pleading, practice and procedure. In fine, the power
to promulgate rules of pleading, practice and procedure is no longer shared by this Court with
Congress, more so with the Executive. x x x.22

Just recently, Carpio-Morales v. Court of Appeals (Sixth Division)23 further elucidated:

While the power to define, prescribe, and apportion the jurisdiction of the various courts is, by
constitutional design, vested unto Congress, the power to promulgate rules concerning the
protection and enforcement of constitutional rights, pleading, practice, and procedure in all
courts belongs exclusively to this Court. Section 5 (5), Article VIII of the 1987 Constitution reads:

xxxx

In Echegaray v. Secretary of Justice (Echegaray), the Court traced the evolution of its rule-making
authority, which, under the 1935 and 1973 Constitutions, had been priorly subjected to a power-
sharing scheme with Congress. As it now stands, the 1987 Constitution textually altered the old
provisions by deleting the concurrent power of Congress to amend the rules, thus solidifying
in one body the Court's rule-making powers, in line with the Framers' vision of institutionalizing a
" [ s] tronger and more independent judiciary."

The records of the deliberations of the Constitutional Commission would show that the Framers
debated on whether or not the Court's rulemaking powers should be shared with Congress. There
was an initial suggestion to insert the sentence "The National Assembly may repeal, alter, or
supplement the said rules with the advice and concurrence of the Supreme Court," right after the
phrase "Promulgate rules concerning the protection and enforcement of constitutional rights,
pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated
bar, and legal assistance to the underprivileged[,]" in the enumeration of powers of the Supreme
Court. Later, Commissioner Felicitas S. Aquino proposed to delete the former sentence and, instead,
after the word "[under]privileged," place a comma(,) to be followed by "the phrase with the
concurrence of the National Assembly." Eventually, a compromise formulation was reached
wherein (a) the Committee members agreed to Commissioner Aquino's proposal to delete the
phrase "the National Assembly may repeal, alter, or supplement the said rules with the advice and
concurrence of the Supreme Court" and (b) in turn, Commissioner Aquino agreed to withdraw his
proposal to add "the phrase with the concurrence of the National Assembly." The changes were
approved, thereby leading to the present lack of textual reference to any form of
Congressional participation in Section 5 (5), Article VIII, supra. Theprevailing consideration
was that "both bodies, the Supreme Court and the Legislature, have their inherent powers."

Thus, as it now stands, Congress has no authority to repeal, alter, or supplement rules concerning
pleading, practice, and procedure.x x x.24
The separation of powers among the three co-equal branches of our government has erected an
impregnable wall that keeps the power to promulgate rules of pleading, practice and procedure
within the sole province of this Court.25 The other branches trespass upon this prerogative if they
enact laws or issue orders that effectively repeal, alter or modify any of the procedural rules
promulgated by the Court.26 Viewed from this perspective, We have rejected previous attempts on
the part of the Congress, in the exercise of its legislative power, to amend the Rules of
Court (Rules), to wit:

1. Fabian v. Desierto27 -Appeal from the decision of the Office of the Ombudsman in an
administrative disciplinary case should be taken to the Court of Appeals under the provisions of Rule
43 of the Rules instead of appeal by certiorari under Rule 45 as provided in Section 27 of R.A. No.
6770.

2. Cathay Metal Corporation v. Laguna West Multi-Purpose Cooperative, Inc. 28 - The Cooperative
Code provisions on notices cannot replace the rules on summons under Rule 14 of the Rules.

3. RE: Petition for Recognition of the Exemption of the GSIS from Payment of Legal Fees; 29 Baguio
Market Vendors Multi-Purpose Cooperative (BAMARVEMPCO) v. Hon. Judge Cabato-Cortes;30 In
Re: Exemption of the National Power Corporation from Payment of Filing/Docket Fees; 31 and Rep. of
the Phils. v. Hon. Mangotara, et al. 32 - Despite statutory provisions, the GSIS, BAMARVEMPCO, and
NPC are not exempt from the payment of legal fees imposed by Rule 141 of the Rules.

4. Carpio-Morales v. Court of Appeals (Sixth Division)33 - The first paragraph of Section 14 of R.A.
No. 6770, which prohibits courts except the Supreme Court from issuing temporary restraining order
and/or writ of preliminary injunction to enjoin an investigation conducted by the Ombudsman, is
unconstitutional as it contravenes Rule 58 of the Rules.

Considering that the aforesaid laws effectively modified the Rules, this Court asserted its discretion
to amend, repeal or even establish new rules of procedure, to the exclusion of the legislative and
executive branches of government. To reiterate, the Court's authority to promulgate rules on
pleading, practice, and procedure is exclusive and one of the safeguards of Our institutional
independence.34

Plea bargaining in criminal cases

Plea bargaining, as a rule and a practice, has been existing in our jurisdiction since July 1, 1940,
when the 1940 Rules took effect. Section 4, Rule 114 (Pleas) of which stated:

SEC. 4. Plea of guilty of lesser offense. - The defendant, with the consent of the court and of the
fiscal, may plead guilty of any lesser offense than that charged which is necessarily included in the
offense charged in the complaint or information.

When the 1964 Rules became effective on January 1, 1964, the same provision was retained under
Rule 118 (Pleas). Subsequently, with the effectivity of the 1985 Rules on January 1, 1985, the
1âwphi1

provision on plea of guilty to a lesser offense was amended. Section 2, Rule 116 provided:

SEC. 2. Plea of guilty to a lesser offense. - The accused with the consent of the offended party and
the fiscal, may be allowed by the trial court to plead guilty to a lesser offense, regardless of whether
or not it is necessarily included in the crime charged, or is cognizable by a court of lesser jurisdiction
than the trial court. No amendment of the complaint or information is necessary. (4a, R-118)
As well, the term "plea bargaining" was first mentioned and expressly required during pre-trial.
Section 2, Rule 118 mandated:

SEC. 2. Pre-trial conference; subjects. - The pre-trial conference shall consider the following:

(a) Plea bargaining;

(b) Stipulation of facts;

(c) Marking for identification of evidence of the parties;

(d) Waiver of objections to admissibility of evidence; and

(e) Such other matters as will promote a fair and expeditious trial. (n)

The 1985 Rules was later amended. While the wordings of Section 2, Rule 118 was retained,
Section 2, Rule 116 was modified in 1987. A second paragraph was added, stating that "[a]
conviction under this plea shall be equivalent to a conviction of the offense charged for purposes of
double jeopardy."

When R.A. No. 8493 ("Speedy Trial Act of 1998 ') was enacted,35 Section 2, Rule 118 of
the Rules was substantially adopted. Section 2 of the law required that plea bargaining and other
matters36 that will promote a fair and expeditious trial are to be considered during pre-trial conference
in all criminal cases cognizable by the Municipal Trial Court, Municipal Circuit Trial Court,
Metropolitan Trial Court, Regional Trial Court, and the Sandiganbayan.

Currently, the pertinent rules on plea bargaining under the 2000 Rules37 are quoted below:

RULE 116 (Arraignment and Plea):

SEC. 2. Plea of guilty to a lesser offense. - At arraignment, the accused, with the consent of the
offended party and the prosecutor, may be allowed by the trial court to plead guilty to a lesser
offense which is necessarily included in the offense charged. After arraignment but before trial, the
accused may still be allowed to plead guilty to said lesser offense after withdrawing his plea of not
guilty. No amendment of the complaint or information is necessary. (Sec. 4, Cir. 38-98)

RULE 118 (Pre-trial):

SEC. 1. Pre-trial; mandatory in criminal cases. - In all criminal cases cognizable by

the Sandiganbayan, Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court in Cities,
Municipal Trial Court and Municipal Circuit Trial Court, the court shall, after arraignment and within
thirty (30) days from the date the court acquires jurisdiction over the person of the accused, unless a
shorter period is provided for in special laws or circulars of the Supreme Court, order a pre-trial
conference to consider the following:

(a) plea bargaining;

(b) stipulation of facts;

(c) marking for identification of evidence of the parties;

(d) waiver of objections to admissibility of evidence;

(e) modification of the order of trial if the accused admits the charge but interposes a lawful defense;
and

(f) such matters as will promote a fair and expeditious trial of the criminal and civil aspects of the
case. (Sec. 2 & 3, Cir. 38-98)

Plea bargaining is a rule of procedure

The Supreme Court's sole prerogative to issue, amend, or repeal procedural rules is limited to the
preservation of substantive rights, i.e., the former should not diminish, increase or modify the
latter.38 "Substantive law is that part of the law which creates, defines and regulates rights, or which
regulates the right and duties which give rise to a cause of action; that part of the law which courts
are established to administer; as opposed to adjective or remedial law, which prescribes the method
of enforcing rights or obtain redress for their invasions."39 Fabian v. Hon. Desierto40 laid down the test
for determining whether a rule is substantive or procedural in nature.

It will be noted that no definitive line can be drawn between those rules or statutes which are
procedural, hence within the scope of this Court's rule-making power, and those which are
substantive. In fact, a particular rule may be procedural in one context and substantive in another. It
is admitted that what is procedural and what is substantive is frequently a question of great difficulty.
It is not, however, an insurmountable problem if a rational and pragmatic approach is taken within
the context of our own procedural and jurisdictional system.

In determining whether a rule prescribed by the Supreme Court, for the practice and procedure of
the lower courts, abridges, enlarges, or modifies any substantive right, the test is whether the rule
really regulates procedure, that is, the judicial process for enforcing rights and duties recognized by
substantive law and for justly administering remedy and redress for a disregard or infraction of them.
If the rule takes away a vested right, it is not procedural. If the rule creates a right such as the right to
appeal, it may be classified as a substantive matter; but if it operates as a means of implementing an
existing right then the rule deals merely with procedure.41

In several occasions, We dismissed the argument that a procedural rule violates substantive rights.
For example, in People v. Lacson, 42 Section 8, Rule 117 of the Rules on provisional dismissal was
held as a special procedural limitation qualifying the right of the State to prosecute, making the time-
bar an essence of the given right or as an inherent part thereof, so that its expiration operates to
extinguish the right of the State to prosecute the accused.43 Speaking through then Associate Justice
Romeo J. Callejo, Sr., the Court opined:

In the new rule in question, as now construed by the Court, it has fixed a time-bar of one year or two
years for the revival of criminal cases provisionally dismissed with the express consent of the
accused and with a priori notice to the offended party. The time-bar may appear, on first impression,
unreasonable compared to the periods under Article 90 of the Revised Penal Code. However, in
fixing the time-bar, the Court balanced the societal interests and those of the accused for the orderly
and speedy disposition of criminal cases with minimum prejudice to the State and the accused. It
took into account the substantial rights of both the State and of the accused to due process. The
Court believed that the time limit is a reasonable period for the State to revive provisionally
dismissed cases with the consent of the accused and notice to the offended parties. The time-bar
fixed by the Court must be respected unless it is shown that the period is manifestly short or
insufficient that the rule becomes a denial of justice. The petitioners failed to show a manifest
shortness or insufficiency of the time-bar.
The new rule was conceptualized by the Committee on the Revision of the Rules and approved by
the Court en banc primarily to enhance the administration of the criminal justice system and the
rights to due process of the State and the accused by eliminating the deleterious practice of trial
courts of provisionally dismissing criminal cases on motion of either the prosecution or the accused
or jointly, either with no time-bar for the revival thereof or with a specific or definite period for such
revival by the public prosecutor. There were times when such criminal cases were no longer revived
or refiled due to causes beyond the control of the public prosecutor or because of the indolence,
apathy or the lackadaisical attitude of public prosecutors to the prejudice of the State and the
accused despite the mandate to public prosecutors and trial judges to expedite criminal proceedings.

It is almost a universal experience that the accused welcomes delay as it usually operates in his
favor, especially if he greatly fears the consequences of his trial and conviction. He is hesitant to
disturb the hushed inaction by which dominant cases have been known to expire.

The inordinate delay in the revival or refiling of criminal cases may impair or reduce the capacity of
the State to prove its case with the disappearance or nonavailability of its witnesses. Physical
evidence may have been lost. Memories of witnesses may have grown dim or have faded. Passage
of time makes proof of any fact more difficult. The accused may become a fugitive from justice or
commit another crime. The longer the lapse of time from the dismissal of the case to the revival
thereof, the more difficult it is to prove the crime.

On the other side of the fulcrum, a mere provisional dismissal of a criminal case does not terminate
a criminal case. The possibility that the case may be revived at any time may disrupt or reduce, if not
derail, the chances of the accused for employment, curtail his association, subject him to public
obloquy and create anxiety in him and his family. He is unable to lead a normal life because of
community suspicion and his own anxiety. He continues to suffer those penalties and disabilities
incompatible with the presumption of innocence. He may also lose his witnesses or their memories
may fade with the passage of time. In the long run, it may diminish his capacity to defend himself
and thus eschew the fairness of the entire criminal justice system.

The time-bar under the new rule was fixed by the Court to excise the malaise that plagued the
administration of the criminal justice system for the benefit of the State and the accused; not for the
accused only.44

Also, We said in Jaylo, et al. v. Sandiganbayan, et al. 45 that Section 6, Rule 120 of the Rules, which
provides that an accused who failed to appear at the promulgation of the judgment of conviction
shall lose the remedies available against the judgment, does not take away substantive rights but
merely provides the manner through which an existing right may be implemented.

Section 6, Rule 120, of the Rules of Court, does not take away per se the right of the convicted
accused to avail of the remedies under the Rules. It is the failure of the accused to appear without
justifiable cause on the scheduled date of promulgation of the judgment of conviction that forfeits
their right to avail themselves of the remedies against the judgment.

It is not correct to say that Section 6, Rule 120, of the Rules of Court diminishes or modifies the
substantive rights of petitioners. It only works in pursuance of the power of the Supreme Court to
"provide a simplified and inexpensive procedure for the speedy disposition of cases." This provision
protects the courts from delay in the speedy disposition of criminal cases - delay arising from the
simple expediency of nonappearance of the accused on the scheduled promulgation of the judgment
of conviction.46
By the same token, it is towards the provision of a simplified and inexpensive procedure for the
speedy disposition of cases in all courts47 that the rules on plea bargaining was introduced. As a way
of disposing criminal charges by agreement of the parties, plea bargaining is considered to be an
"important," "essential," "highly desirable," and "legitimate" component of the administration of
justice.48 Some of its salutary effects include:

x x x For a defendant who sees slight possibility of acquittal, the advantages of pleading guilty and
limiting the probable penalty are obvious - his exposure is reduced, the correctional processes can
begin immediately, and the practical burdens of a trial are eliminated. For the State there are also
advantages - the more promptly imposed punishment after an admission of guilt may more
effectively attain the objectives of punishment; and with the avoidance of trial, scarce judicial and
prosecutorial resources are conserved for those cases in which there is a substantial issue of the
defendant's guilt or in which there is substantial doubt that the State can sustain its burden of
proof. (Brady v. United States, 397 U.S. 742, 752 [1970])

Disposition of charges after plea discussions x x x leads to prompt and largely final disposition of
most criminal cases; it avoids much of the corrosive impact of enforced idleness during pretrial
confinement for those who are denied release pending trial; it protects the public from those accused
persons who are prone to continue criminal conduct even while on pretrial release; and, by
shortening the time between charge and disposition, it enhances whatever may be the rehabilitative
prospects of the guilty when they are ultimately imprisoned. (Santobello v. New York, 404 U.S. 257,
261 [1971])

The defendant avoids extended pretrial incarceration and the anxieties and uncertainties of a trial;
he gains a speedy disposition of his case, the chance to acknowledge his guilt, and a prompt start in
realizing whatever potential there may be for rehabilitation. Judges and prosecutors conserve vital
and scarce resources. The public is protected from the risks posed by those charged with criminal
offenses who are at large on bail while awaiting completion of criminal proceedings. (Blackledge v.
Allison, 431 U.S. 63, 71 [1977])

In this jurisdiction, plea bargaining has been defined as "a process whereby the accused and the
prosecution work out a mutually satisfactory disposition of the case subject to court
approval."49 There is give-and-take negotiation common in plea bargaining.50 The essence of the
agreement is that both the prosecution and the defense make concessions to avoid potential
losses.51 Properly administered, plea bargaining is to be encouraged because the chief virtues of the
system - speed, economy, and finality - can benefit the accused, the offended party, the prosecution,
and the court.52

Considering the presence of mutuality of advantage,53 the rules on plea bargaining neither create a
right nor take away a vested right. Instead, it operates as a means to implement an existing right by
regulating the judicial process for enforcing rights and duties recognized by substantive law and for
justly administering remedy and redress for a disregard or infraction of them.

The decision to plead guilty is often heavily influenced by the defendant's appraisal of the
prosecution's case against him and by the apparent likelihood of securing leniency should a guilty
plea be offered and accepted.54 In any case, whether it be to the offense charged or to a lesser
crime, a guilty plea is a "serious and sobering occasion" inasmuch as it constitutes a waiver of the
fundamental rights to be presumed innocent until the contrary is proved, to be heard by himself and
counsel, to meet the witnesses face to face, to bail (except those charged with offenses punishable
by reclusion perpetua when evidence of guilt is strong), to be convicted by proof beyond reasonable
doubt, and not to be compelled to be a witness against himself.55
Yet a defendant has no constitutional right to plea bargain. No basic rights are infringed by trying him
rather than accepting a plea of guilty; the prosecutor need not do so if he prefers to go to
trial.56 Under the present Rules, the acceptance of an offer to plead guilty is not a demandable right
but depends on the consent of the offended party57 and the prosecutor, which is a condition
precedent to a valid plea of guilty to a lesser offense that is necessarily included in the offense
charged.58 The reason for this is that the prosecutor has full control of the prosecution of criminal
actions; his duty is to always prosecute the proper offense, not any lesser or graver one, based on
what the evidence on hand can sustain.59

[Courts] normally must defer to prosecutorial decisions as to whom to prosecute. The reasons for
judicial deference are well known. Prosecutorial charging decisions are rarely simple. In addition to
assessing the strength and importance of a case, prosecutors also must consider other tangible and
intangible factors, such as government enforcement priorities. Finally, they also must decide how
best to allocate the scarce resources of a criminal justice system that simply cannot accommodate
the litigation of every serious criminal charge. Because these decisions "are not readily susceptible
to the kind of analysis the courts are competent to undertake," we have been "properly hesitant to
examine the decision whether to prosecute. "60

The plea is further addressed to the sound discretion of the trial court, which may allow the accused
to plead guilty to a lesser offense which is necessarily included in the offense charged. The
word may denotes an exercise of discretion upon the trial court on whether to allow the accused to
make such plea.61 Trial courts are exhorted to keep in mind that a plea of guilty for a lighter offense
than that actually charged is not supposed to be allowed as a matter of bargaining or compromise
for the convenience of the accused.62

Plea bargaining is allowed during the arraignment, the pre-trial, or even up to the point when the
prosecution already rested its case.63 As regards plea bargaining during the pre-trial stage, the trial
court's exercise of discretion should not amount to a grave abuse thereof.64 "Grave abuse of
discretion" is a capricious and whimsical exercise of judgment so patent and gross as to amount to
an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, as where the
power is exercised in an arbitrary and despotic manner because of passion or hostility; it arises
when a court or tribunal violates the Constitution, the law or existing jurisprudence.65

If the accused moved to plead guilty to a lesser offense subsequent to a bail hearing or after the
prosecution rested its case, the rules allow such a plea only when the prosecution does not have
sufficient evidence to establish the guilt of the crime charged.66 The only basis on which the
prosecutor and the court could rightfully act in allowing change in the former plea of not guilty could
be nothing more and nothing less than the evidence on record. As soon as the prosecutor has
submitted a comment whether for or against said motion, it behooves the trial court to assiduously
study the prosecution's evidence as well as all the circumstances upon which the accused made his
change of plea to the end that the interests of justice and of the public will be served.67 The ruling on
the motion must disclose the strength or weakness of the prosecution's evidence.68 Absent any
finding on the weight of the evidence on hand, the judge's acceptance of the defendant's change of
plea is improper and irregular.69

On whether Section 23 of R.A. No.

9165 violates the equal protection
clause

At this point, We shall not resolve the issue of whether Section 23 of R.A. No. 9165 is contrary to the
constitutional right to equal protection of the law in order not to preempt any future discussion by the
Court on the policy considerations behind Section 23 of R.A. No. 9165. Pending deliberation on
whether or not to adopt the statutory provision in toto or a qualified version thereof, We deem it
proper to declare as invalid the prohibition against plea bargaining on drug cases until and unless it
is made part of the rules of procedure through an administrative circular duly issued for the purpose.

WHEREFORE, the petition for certiorari and prohibition is GRANTED. Section 23 of Republic Act
No. 9165 is declared unconstitutional for being contrary to the rule-making authority of the Supreme
Court under Section 5(5), Article VIII of the 1987 Constitution.

SO ORDERED.

A.M. No. SCC-13-18-J July 1, 2015

(Formerly A.M. OCA IPI No. 11-36-SCC)

BAGUAN M. MAMISCAL, Complainant,

vs.
CLERK OF COURT MACALINOG S. ABDULLAH, SHARI'A CIRCUIT COURT, MARAWI
CITY, Respondent.

DECISION

MENDOZA, J.:

This resolves the complaint1 of Baguan M. Mamiscal (Mamiscal) against respondent Macalinog S.
Abdullah (Abdullah), Clerk of Court, Shari'a Circuit Court, Marawi City, for partiality, violation of due
process, dishonesty, and conduct unbecoming of a court employee. Originally, the complaint also
charged Judge Aboali J. Cali (Judge Cali), Presiding Judge, Shari'a Circuit Court, Marawi City, for
his participation in the subject controversy. On January 9, 2013, the Court resolved to dismiss the
charges against Judge Cali for lack of merit.2

The Facts

In his complaint, Mamiscal averred that on September 26, 2010, he and his wife, Adelaidah
Lomondot (Adelaidah) had a heated argument. In a fit of anger, Mamiscal decided to divorce his wife
by repudiating her (talaq).3 The repudiation was embodied in an agreement4 (kapasadan) signed by
Mamiscal and Adelaidah.

The next day, Adelaidah left their conjugal dwelling in Iligan City and went back to her family’s home
in Marinaut, Marawi City. A few days later, during the obligatory period of waiting (‘iddah),5 Mamiscal
had a change of heart and decided to make peace with his wife. For the purpose, he sent their
common relatives to see Adelaidah and make peace with her on his behalf.6

Almost five (5) months later, however, on February 23, 2011, Adelaidah filed7 the Certificate of
Divorce (COD),8 dated September 26, 2010, with the office of Abdullah for registration. Although
unsigned, the certificate, purportedly executed by Mamiscal, certified that he had pronounced talaq
in the presence of two (2) witnesses and in accordance with Islamic Law for the purpose of effecting
divorce from Adelaidah. A notation on the certificate stated that it was being filed together with the
kapasadan.
On the same day, Abdullah, in the exercise of his duty as both Clerk of Court and Circuit Civil
Registrar,9 issued the Invitation10 notifying the couple and their representatives to appear before the
Shari’a Circuit Court on February 28, 2011, in order to constitute the Agama Arbitration Council
(AAC)that would explore the possibility of reconciling the spouses.11

On March 24, 2011, Abdullah issued the Certificate of Registration of Divorce12 (CRD)finalizing the
divorce between Mamiscal and Adelaidah.

Mamiscal sought the revocation of the CRD, questioning the validity of the kapasadan on which the
CRD was based. In his motion, Mamiscal contended that the kapasadan was invalid considering that
he did not prepare the same. Moreover, there wereno witnesses to its execution. He claimed that he
only signed the kapasadan because of Adelaidah’s threats.

Mamiscal also questioned the validity of the COD, denying that he had executed and filed the same
before the office of Abdullah. Insisting that he never really intended to divorce his wife, Mamiscal
pointed out the fact that on December 13, 2010, before the expiration of the ‘iddah, he wrote his
wife13 to inform her that he was revoking the repudiation he made on September 26, 2010 and the
kapasadan they entered into on the same day because he did it on the "spur of the moment."14

For Mamiscal, the CRD should be declared invalid considering that: a) he was deprived of due
process because the AAC, before which he and his children were supposed to express their
sentiments regarding the divorce, was yet to be constituted; b) three days before the issuance of the
CRD, Professor Mustafa Lomala M. Dimaro, appeared before Judge Cali to discuss the possibility of
reconciliation between the parties; and c) their children, Adelah Rima and Naim Mamiscal, prayed
that the trial court advise their mother not to proceed with the divorce.15 In addition to the revocation
of the CRD, Mamiscal also prayed that Abdullah order the reconvening of the AAC and, thereafter,
grant the restoration of his marital rights with Adelaidah.

On April 20, 2011, Abdullah denied Mamiscal’s motion.16 In sustaining the divorce between Mamiscal
and Abdullah, Abdullah opined that it was simply his ministerial duty to receive the COD and the
attached kapasadan filed by Adelaidah. Abdullah also noted that when the AAC was convened
during the February 28, 2010 hearing, only Mamiscal and his representatives appeared. Considering
the fact that Adelaidah manifested her opposition in writing to any reconciliation with her husband
and the fact that the 90-day period of ‘iddah had already lapsed, Abdullah ruled that any move to
reconstitute the AAC would have been futile because the divorce between Mamiscal and his wife
had already become final and irrevocable.

Contending that the issuance of the CRD was tainted with irregularity, Mamiscal comes to this Court,
through the subject complaint, charging Abdullah with partiality, violation of due process, dishonesty,
and conduct unbecoming of a court employee.

The Charge

In his complaint, Mamiscal averred that Abdullah should not have entertained or acted upon the
COD and the kapasadan filed by Adelaidah. He contended that under the Code of Muslim Personal
Laws, a divorce under talaq could only be filed and registered by the male spouse, considering that
female Muslims could do so only if the divorce was through tafwid.17 Moreover, Mamiscal alleged that
Abdullah "fabricated and twisted the facts"18 when he declared that only Mamiscal and his
representative appeared when the AAC was convened. Mamiscal insisted that Adelaidah and her
relatives were also present during the hearing of February 28, 2010, and that the AAC was never
convened because the parties agreed to reset the proceedings so that they could explore the
possibility of reconciling the differences between them. Notwithstanding the ongoing mediation
proceedings, Abdullah proceeded to act on the COD and finalized the divorce by issuing the CRD.

Finally, it was averred that Abdullah violated the Shari’a rules of procedure when he initially refused
to receive Mamiscal’s motion for reconsideration when it was first filed. Mamiscal also argued that
Abdullah should not have considered the opposition of Adelaidah when he denied his attempt to
seek reconsideration because he was never furnished a copy of Adelaidah’s opposition.

Abdullah’s Comment

In his comment,19 Abdullah countered that although he had the authority to process the registration of
the divorce as court registrar, he could not be held responsible for the contents of the COD and the
kapasadan because his functions were only ministerial. Nevertheless, Abdullah asserted that the
divorce between Mamiscal and Adelaidah had already attained finality, not only because of the lapse
of the required ‘iddah, but also because the kapasadan and Adelaidah’s opposition both proved that
there could be no reconciliation between the spouses. Abdullah also discounted any impropriety for
processing the unsigned COD, arguing that since it was accompanied by the kasapadan which bore
the signature of Mamiscal and his declaration that he was divorcing his wife by talaq– there was
nothing wrong with Adelaidah filing it with his office. Moreover, with the lapse of the ‘iddah, Abdullah
argued that the COD had remained to be nothing more than a formality for the purpose of registering
the divorce with the National Statistics Office (NSO)and its issuance using the NSO security paper.

As to the allegations pertaining to the February 28, 2010 hearing, Abdullah stated that he only
conducted the same because it was required under the Muslim Personal Code. Abdullah explained
that he did not convene the ACC anymore not only because Adelaidah or her representatives were
not present, but also because the divorcing couple’s own children wrote to him opposing the
convening of the council.

As to Mamiscal’s contention that he already revoked his repudiation of his wife, Abdullah pointed out
that his office was not informed of any revocation of the divorce. According to Abdullah, if Mamiscal
had indeed revoked his repudiation, he should have complied with the provisions of Rule II (1)(2) of
NSO Administrative Order No. 1, series of 2001, which required the husband to file five (5) copies of
his sworn statement attesting to the fact of revocation, together with the written consent of his wife.

In its report,20 the Office of the Court Administrator (OCA)found Abdullah guilty of gross ignorance of
the law and recommended that he be fined in the amount of 10,000.00 with a stern warning that a
repetition of the same offense shall be dealt with severely.

On January 30, 2014, Abdullah filed a motion,21 praying for the early resolution of the complaint filed
against him. Reiterating his plea for the dismissal of the said complaint, Abdullah claimed that he
was due for compulsory retirement on June 5, 2014.

The Court’s Ruling

At the outset, it must first be pointed out that while it may seem to be a related issue, the validity of
the divorce between Mamiscal and Adelaidah is not in issue here. Whether or not Mamiscal had
validly effected a divorce from his wife is a matter that must first be addressed by the Shari’a Circuit
Court which, under the Code of Muslim Personal Laws of the Philippines (Muslim Code),22 enjoys
exclusive original jurisdiction to resolve disputes relating to divorce.

Thus, Article 155 of the Muslim Code provides:

Article 155. Jurisdiction. The Shari'a Circuit Courts shall have exclusive original jurisdiction over;

(1) All cases involving offenses defined and punished under this Code.

(2) All civil actions and proceedings between parties who are Muslims or have been married
in accordance with Article 13 involving disputes relating to:

(a) Marriage;

(b) Divorce recognized under this Code;

(c) Betrothal or breach of contract to marry;

(d) Customary dower (mahr);

(e) Disposition and distribution of property upon divorce;

(f) Maintenance and support, and consolatory gifts, (mut'a); and

(g) Restitution of marital rights.

(3) All cases involving disputes relative to communal properties.

[Emphases Supplied]

Consequently, in resolving the subject complaint, the Court shall confine itself to the sole issue of
whether or not Abdullah should be held administratively liable for his actions in connection with the
registration of the divorce between Mamiscal and Adelaidah. A priori to the resolution of the
foregoing issue is the question of whether this Court has jurisdiction to impose administrative
sanction against Abdullah for his acts.

The Court rules in the negative.

The civil registrar is the person charged by law for the recording of vital events and other documents
affecting the civil status of persons. The Civil Registry Law embraces all acts of civil life affecting the
status of persons and is applicable to all persons residing in the Philippines.23

To ensure the proper registration of all facets of the civil life of Muslim Filipinos throughout the
country, Article 81 of the Muslim Code provides:

Article 81. District Registrar. The Clerk of Court of the Shari' a District Court shall, in addition to his
regular functions, act as District Registrar of Muslim Marriages, Divorces, Revocations of Divorces,
and Conversions within the territorial jurisdiction of said court. The Clerk of Court of the Shari'a
Circuit Court shall act as Circuit Registrar of Muslim Marriages, Divorces, Revocations of Divorces,
and Conversions within his jurisdiction.

[Emphasis Supplied]

In view of the above-quoted provision, it becomes apparent that the Clerk of Court of the Shari'a
Circuit Court enjoys the privilege of wearing two hats: first, as Clerk of Court of the Shari'a Circuit
Court, and second, as Circuit Registrar within his territorial jurisdiction. Although the Constitution
vests the Court with the power of administrative supervision over all courts and its personnel,24 this
power must be taken with due regard to other prevailing laws.

Thus, Article 185 of the Muslim Code provides:

Article 185. Neglect of duty by registrars. Any district registrar or circuit registrar who fails to perform
properly his duties in accordance with this Code shall be penalized in accordance with Section 18 of
Act 3753.

Commonwealth Act (C.A.) No. 375325 is the primary law that governs the registry of civil status of
persons. To ensure that civil registrars perform their duties under the law, Section 18 of C.A. No.
3753 provides:

Section 18. Neglect of duty with reference to the provisions of this Act. – Any local registrar who fails
to properly perform his duties in accordance with the provisions of this Act and of the regulations
issued hereunder, shall be punished for the first offense, by an administrative fine in a sum equal to
his salary for not less than fifteen days nor more than three months, and for a second or repeated
offense, by removal from the service.

[Emphasis Supplied]

The same Act provides:

Section 2. Civil Registrar-General his duties and powers. – The director of the National Library shall
be Civil Registrar-General and shall enforce the provisions of this Act. The Director of the National
Library, in his capacity as Civil Registrar-General, is hereby authorized to prepare and issue, with
the approval of the Secretary of Justice, regulations for carrying out the purposes of this Act, and to
prepare and order printed the necessary forms for its proper compliance. In the exercise of his
functions as Civil Registrar-General, the Director of the National Library shall have the power to give
orders and instructions to the local Civil registrars with reference to the performance of their duties
as such. It shall be the duty of the Director of the National Library to report any violation of the
provisions of this Act and all irregularities, negligence or incompetency on the part of the officers
designated as local civil registrars to the (Chief of the Executive Bureau or the Director of the Non-
Christian Tribes) Secretary of the Interior, as the case may be, who shall take the proper disciplinary
action against the offenders.

[Emphasis and Underscoring Supplied]

Prescinding from the foregoing, it becomes apparent that this Court does not have jurisdiction to
impose the proper disciplinary action against civil registrars. While he is undoubtedly a member of
the Judiciary as Clerk of Court of the Shari'a Circuit Court, a review of the subject complaint reveals
that Mamiscal seeks to hold Abdullah liable for registering the divorce and issuing the CRD pursuant
to his duties as Circuit Registrar of Muslim divorces. It has been said that the test of jurisdiction is
the nature of the offense and not the personality of the offender.26 The fact that the complaint
charges Abdullah for "conduct unbecoming of a court employee" is of no moment. Well-settled is the
rule that what controls is not the designation of the offense but the actual facts recited in the
complaint. Verily, unless jurisdiction has been conferred by some legislative act, no court or tribunal
can act on a matter submitted to it.27

It bears to stress at this point that this Court can resolve the foregoing jurisdictional issue even if the
matter of jurisdiction was never raised by any of the parties. Jurisprudence is replete with rulings that
jurisdiction, or the power and authority of a court to hear, try and decide a case must first be
acquired by the court or an adjudicative body over the subject matter and the parties in order to have
authority to dispose of the case on the merits.28 Elementary is the distinction between jurisdiction
over the subject matter and jurisdiction over the person. Jurisdiction over the subject matter is
conferred by the Constitution or by law. In contrast, jurisdiction over the person is acquired by the
court by virtue of the party's voluntary submission to the authority of the court or through the exercise
of its coercive processes. Jurisdiction over the person is waivable unlike jurisdiction over the subject
matter which is neither subject to agreement nor conferred by consent of the parties.29

Having settled the foregoing issue, the following question now confronts the Court: Who, among the
various agencies and instrumentalities of the government, is empowered with administrative
supervisory powers in order to impose disciplinary sanctions against erring civil registrars?

On this score, a recap of the legislative history surrounding our system of civil registration is in order.

The system of civil registration was first established in the Philippines by the revolutionary
government on June18, 1898 or barely six days after the declaration of the country’s independence
from Spain on June 12, 1898. Originally, the system was decentralized in the sense that civil
registration was purely a local government responsibility. It was only on February 27, 1931, when
C.A. No. 375330 took effect and centralized the system of civil registration in the country. Under this
law, the director of the National Library was made responsible as the Civil Registrar-General to
exercise technical supervision and ensure the proper establishment and maintenance of our civil
registry system.

Then, following C.A. No. 591,31 the duties exercised by the director of National Library with regard to
matters concerning the system of civil registration were transferred to the Bureau of Census and
Statistics. This bureau subsequently became the NSO,32 whose Administrator concurrently served as
the Civil Registrar-General.33 At present, the National Statistician is empowered by Republic Act
(R.A.) No. 10625, as Civil Registrar-General to exercise technical supervision of civil registrars.34

Due to the need to address the cultural peculiarities practiced by our Muslim brethren, however,
Congress saw the need to designate the Clerk of Court of the Shari'a Circuit Court to act as the
Circuit Registrar of Muslim marriages, divorces, revocations of divorces, and conversions to Islam
within his jurisdiction. As earlier cited, Article 181 of the Muslim Code provides that: The Clerk of
Court of the Shari'a Circuit Court shall act as Circuit Registrar of Muslim Marriages, Divorces,
Revocations of Divorces, and Conversions within his jurisdiction.

In order to ensure that Circuit Registrars remain faithful to their duties, Article 82 of the Muslim Code
tasks the Clerks of Court of the Shari'a District Court to act as District Registrars and exercise
technical supervision over Circuit Registrars by requiring them to keep a proper recording of all
matters pertaining to the personal lives of Muslims. Thus:

Article 82. Duties of District Registrar. Every District Registrar shall exercise supervision over Circuit
Registrars in every Shari'a District. He shall, in addition to an entry book, keep and bind copies of
certificates of Marriage, Divorce, Revocation of Divorce, and Conversion sent to him by the Circuit
Registrars in separate general registers. He shall send copies in accordance with Act. No. 3753, as
amended, to the office of the Civil Registrar-General.

All these notwithstanding, the power of administrative supervision over civil registrars remains with
the National Government. As Section 2 of CA No. 3753 provides:
1âwphi1
Section 2. Civil Registrar-General his duties and powers. – The director of the National Library shall
be Civil Registrar-General and shall enforce the provisions of this Act. The Director of the National
Library, in his capacity as Civil Registrar-General, is hereby authorized to prepare and issue, with
the approval of the Secretary of Justice, regulations for carrying out the purposes of this Act, and to
prepare and order printed the necessary forms for its proper compliance. In the exercise of his
functions as Civil Registrar-General, the Director of the National Library shall have the power to give
orders and instructions to the local Civil registrars with reference to the performance of their duties
as such. It shall be the duty of the Director of the National Library to report any violation of the
provisions of this Act and all irregularities, negligence or incompetency on the part of the officers
designated as local civil registrars to the (Chief of the Executive Bureau or the Director of the Non-
Christian Tribes) Secretary of the Interior, as the case may be, who shall take the proper disciplinary
action against the offenders.

[Emphasis Supplied]

It was only with the advent of the Local Government Code that the power of administrative
supervision over civil registrars was devolved to the municipal and city mayors of the respective local
government units. Under the "faithful execution clause" embodied in Section 455(b)(1)(x)35 and
Section 444(b)(1)(x)36 of the Local Government Code, in relation to Section 47937 under Article IX,
Title V38 of the same Code, the municipal and city mayors of the respective local government units, in
addition to their power to appoint city or municipal civil registrars are also given ample authority to
exercise administrative supervision over civil registrars. Thus, when Administrative Order No. 1,
Series of 1993 of the Office of the Civil Registrar-General (OCRG)was passed to implement CA No.
3753 it was declared:

Rule 1. Duties and Powers of the Civil Registrar-General. - The Civil Registrar-General shall have
the following duties and powers:

a) To enforce the provisions of Act No. 3753;

b) To prepare and issue regulations for carrying out the purposes of Act No. 3753 and other
laws relative to civil registration, and to prepare and order printed the necessary forms for its
proper compliance;

c) To give orders and instructions to the city/municipal civil registrars with reference to the
performance of their duties as such; and

d) To report any violation of the provisions of Act No. 3753 and other laws on civil
registration, and all irregularities, negligence or incompetency of city/municipal civil registrar
to the concerned mayor who shall take the proper disciplinary action against the offender.

This authority of the Mayor to exercise administrative jurisdiction over Circuit Registrars was also
recognized generally, under Section 47(2) of the Administrative Code of 1987,39 and specifically,
under Rule 11 of Administrative Order No. 2, Series of 199340 of the OCRG, and the more recent
Administrative Order No. 5, Series of 200541 of the same office, which applies specially to the
registration of acts and events concerning the civil status of Muslim Filipinos.

At this juncture, it should be remembered that the authority of the Mayor to exercise administrative
supervision over C/MCRs is not exclusive. The Civil Service Commission (CSC), as the central
personnel agency of the government, has the power to appoint and discipline its officials and
employees and to hear and decide administrative cases instituted by or brought before it directly or
on appeal.42 Under Section 9 of the Revised Uniform Rules on Administrative Cases in the Civil
Service, the CSC is granted original concurrent jurisdiction over administrative cases. Thus:

Section 9. Jurisdiction of Heads of Agencies. - The Secretaries and heads of agencies, and other
instrumentalities, provinces, cities and municipalities shall have original concurrent jurisdiction with
the Commission over their respective officers and employees. x x x

Consequently, it behooves the Court to also forward the subject complaint to the Office of the Mayor,
Marawi City and to the CSC for appropriate action.

WHEREFORE, the administrative matter against Macalinog S. Abdullah, Clerk of Court II, Shari' a
Circuit Court, Marawi City, for partiality, violation of due process, dishonesty, and conduct
unbecoming a court employee is DISMISSED for lack of jurisdiction, without prejudice. The
complaint of Baguan M. Mamiscal against Macalinog S. Abdullah is hereby REFERRED to the Office
of the Mayor, Marawi City and the Civil Service Commission for appropriate action.

SO ORDERED.

A.M. No. 10-4-20-SC

THE INTERNAL RULES OF THE SUPREME COURT

RESOLUTION

Acting on the recommendation of the Sub-committee on The Internal Rules of the Supreme Court
submitting for this Court’s consideration and approval the purposed Internal Rules of the Supreme
Court, the Court Resolved to APPROVE the same.

These Rules shall take effect fifteen (15) days after publication in a newspaper of general circulation
in the Philippines.

May 4, 2010

REYNATO S. PUNO
Chief Justice

ANTONIO T. CARPIO RENATO C. CORONA

Associate Justice Associate Justice

CONCHITA CARPIO MORALES PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

ANTONIO EDUARDO B. NACHURA TERESITA J. LEONARDO-DE CASTRO

Associate Justice Associate Justice
 ARTURO D. BRION DIOSDADO M. PERALTA
Associate Justice Associate Justice

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice

JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA

Associate Justice Associate Justice

The Lawphil Project - Arellano Law Foundation

THE INTERNAL RULES OF THE SUPREME COURT

PART I

RULE 1
THE INTERNAL RULES

Section 1. The Internal Rules. – These Rules shall govern the internal operations of the Supreme
Court and guide its exercise of judicial and administrative functions. They shall be cited as The
Internal Rules of the Supreme Court.

Section 2. Interpretation. – The Internal Rules of the Supreme Court shall be interpreted in
accordance with the mandates of the Supreme Court under the Constitution, applicable laws, and
the Rules of Court to ensure a just, fair and efficient administration of justice. Nothing in these Rules
shall be interpreted to procedure or limit the exercise of the power and authority of the Court as
provided in the Constitution, the applicable laws, and the Rules of Court.

Section 3. Committee on Internal Rules. –

(a) A permanent Committee on Internal Rules of the Supreme Court shall ensure, through
appropriate recommendation to the Court en banc, that these Rules are kept current and
responsive to the needs of the Court and the public it serves;

(b) The Committee, composed mainly to Members of the Court, shall include the Clerk of the
Supreme Court and the Chief Attorney as permanent members, and may include other court
officials as may needed;

(c) The Committee shall collate relevant materials from laws, the Rules of Court, and
Resolutions of the Court at the end of every year and submit to the Court en banc an update
of the Rules the following January. It shall likewise recommend to the Court en banc the
amendment, revision, or deletion of any of these Rules to reflect and achieve the objectives
of justice, fairness and efficiency;
 (d) These Rules shall be posted on the Supreme Court website.

Section 4. Amendment or suspension of the Rules. – In the interest of sound and efficient
administration of justice, and upon a majority vote of the Court en banc, any provision of these Rules
may be amended, revised, deleted, suspended or dispensed with in particular cases, upon such
terms as the Court en banc may decide to be just, fair and proper.

RULE 2
THE OPERATING STRUCTURES

Section 1. Exercise of judicial and administrative functions. – The Court exercises its judicial
functions and its powers of administrative supervision over all courts and their personnel through the
Court en banc or its Divisions. It administers its activities under the leadership of the Chief Justice,
who may, for this purpose, constitute supervisory or special committees headed by individual
Members of the Court or working committees of court officials and personnel.

Section 2. Quorum of the Court en banc. – Eight Members shall constitute a quorum of the Court. In
the absence of the Chief Justice, the most senior Associate Justice present shall chair the sessions
of the Court.

Section 3. Court en banc matters and cases. – The Court en banc shall act on the following matters
and cases:

(a) cases in which the constitutionality or validity of any treaty, international or executive
agreement, law, executive order, presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question;

(b) criminal cases in which the appealed decision imposes the death penalty or reclusion
perpetua;

(c) cases raising novel questions of law;

(d) cases affecting ambassadors, other public ministers, and consuls;

(e) cases involving decisions, resolutions, and orders of the Civil Service Commission, the
Commission on Elections, and the Commission on Audit;

(f) cases where the penalty recommended or imposed is the dismissal of a judge, the
disbarment of a lawyer, the suspension of any of them for a period of more than one year, or
a fine exceeding forty thousand pesos;

(g) cases covered by the preceding paragraph and involving the reinstatement in the
judiciary of a dismissed judge, the reinstatement of a lawyer in the roll of attorneys, or the
lifting of a judge’s suspension or a lawyer’s suspension from the practice of law;

(h) cases involving the discipline of a Member of the Court, or a Presiding Justice, or any
Associate Justice of the collegial appellate court;

(i) cases where a doctrine or principle laid down by the Court en banc or by a Division my be
modified or reversed;
 (j) cases involving conflicting decisions of two or more divisions;

(k) cases where three votes in a Division cannot be obtained;

(l) Division cases where the subject matter has a huge financial impact on businesses or
affects the welfare of a community;

(m) Subject to Section 11 (b) of this rule, other division cases that, in the opinion of at least
three Members of the Division who are voting and present, are appropriate for transfer to the
Court en banc;

(n) Cases that the Court en banc deems of sufficient importance to merit its attention; and

(o) all matters involving policy decisions in the administrative supervision of all courts and
their personnel.

Section 4. Division cases. – All cases and matters under the jurisdiction of the Court not otherwise
provided for by law, by the Rules of Court or by these Internal Rules to be cognizable by the
Court en banc shall be cognizable by the Divisions.

Section 5. Composition and quorum of a Division. – Unless the Court en banc decrees otherwise, a
quorum shall consist of a majority of all Members of the Division, and an absent or a non-
participating regular Member of a Division may be replaced at the request of the regular Members by
a Member designated from another Division in order to constitute a quorum.

Section 6. Resolutions of motions for reconsideration or clarification of an unsigned resolution or

minute resolution. – Motions for reconsideration or clarification of an unsigned resolution or a minute
resolution shall be acted upon by the regular Division to which the ponente belongs at the time of the
filling of the motion. The ponente is the Member to whom the Court, after its deliberation on the
merits of a case, assigns the writing of its decision or resolution in the case.

Section 7. Resolutions of motions for reconsideration or clarification of decisions or signed

resolutions; creation of a Special Division. – Motions for reconsideration or clarification of a decision
or of a signed resolution shall be acted upon by the ponente and the other Members of the Division
who participated in the rendition of the decision or signed resolution.

If the ponente or a Member of the Division who participated in the rendition of the decision or signed
resolution has retired, is no longer a Member of the Court, is disqualified, or has inhibited himself or
herself from acting on the motion for reconsideration, he or she shall be replaced through raffle by a
new ponente or Member. For this purpose, the Division that rendered the decision or signed
resolution, including the replacement Member, shall be constituted as a Special Division and shall
thereafter act on the motion for reconsideration and all other pleadings, motions, and incidents.

Section 8. Composition and reorganization of a division. – The composition of each Division shall be
based on seniority as follows:

(a) First Division – Chief Justice, the fourth in seniority as working chairperson, the seventh
in seniority, the tenth in seniority, and the thirteenth in seniority.

(b) Second Division – the second in seniority as Chairperson, the fifth in seniority, the eighth
in seniority; the eleventh in seniority, and the fourteenth in seniority.
 (c) Third Division – the third in seniority as Chairperson, the sixth in seniority, the ninth in
seniority, the twelfth in seniority, and the fifteenth in seniority.

The Chief Justice may, however, consider factors other than seniority in Division assignments. The
appointment of a new Member of the Court shall necessitate the reorganization of Divisions at the
call of the Chief Justice.

Section 9. Effect of reorganization of Divisions on assigned cases. – In the reorganization of the

membership of Divisions, cases already assigned to a Member-in-Charged shall be transferred to
the Division to which the Member-in-Charged moves, subject to the rule on the resolution of motions
for reconsideration under Section 7 of this Rule. The Member-in-Charged is the Member given the
responsibility of overseeing the progress and disposition of a case assigned by raffle.

Section 10. Formula for assigning cases to a new Member of the Court. – The following rules shall
be observed in assigning cases to a newly appointed Member of the Court:

(a) the average caseload of each Member shall be determined by dividing the total number
of pending cases of all fifteen Members by fifteen;

(b) the newly appointed Member of the Court shall inherit the caseload of the Member being
replaced, and the inherited caseload, if less than the average caseload as determined in (a),
shall be equalized with the average caseload by taking the difference from the caseload of
the incumbent Members divided among them in equal number;

(c) cases submitted for decision within the last twelve months preceding the appointment of
the new Member of the Court may be unloaded to him or her.

Section 11. Actions on cases referred to the Court en banc. – The referral of a Division case to the
Court en banc shall be subject to the following rules:

(a) the resolution of a Division denying a motion for referral to the Court en banc shall be
final and shall not be appealable to the Court en banc;

(b) the Court en banc may, in the absence of sufficiently important reasons, decline to take
cognizance of a case referred to it and return the case to the Division; and

(c) No motion for reconsideration of a resolution of the Court en banc declining cognizance of
a referral by a Division shall be entertained.

Section 12. Committees. – (a) The Court shall have the following permanent Committees, whose
members shall be designated by the Chief Justice:

(i) Committee on the Revision of the Rules of Court;

(ii) Committee on Computerization and Library;

(iii) Committee on Security;

(iv) Bids and Awards Committees;

(v) Committee on Administrative Concerns;

 (vi) Legislative-Executive Relations Committee;

(vii) Committee on Publication of the Court Systems Journal;

(viii) Committee on Legal Education and Bar Matters;

(ix) Committee on Retirement Program;

(x) Committee on Public Information;

(xi) Judicial Reform Support Project Management Committee;

(xii) Committee on Publication of the Advanced Syllabi;

(xiii) Committee on Foreign Travel;

(xiv) Committee on Justice on Wheels; and

(xv) Committee on Gender Responsiveness in the Judiciary.

The Court may create other Committees as may be necessary, with the Chief Justice
designating the Committee Chairperson and Members.

(b) Subcommittees may be created by the Chief Justice upon the recommendation of the
Committee Chairperson.

(c) Ad Hoc committees shall be created as the need arises.

Section 13. Ethics Committee. – In addition to the above, a permanent Committee on Ethics and
Ethical Standards shall be established and chaired by the Chief Justice, with the following
membership:

(a) a working Vice-Chair appointed by the Chief Justice;

(b) three (3) members chosen among themselves by the en banc by secret vote; and

(c) a retired Supreme Court Justice chosen by the Chief Justice as a non-voting observer-
consultant.

The Vice-Chair, the Members and the retired Supreme Court Justice shall serve for a term of one (1)
year, with the election in the case of elected Members to be held at the call of the Chief Justice. The
Committee shall have the task of preliminarily investigating all complaints involving graft and
corruption and violations of ethical standards, including anonymous complaints, filed against
Members of the Court, and of submitting findings and recommendations to the en banc. All
proceedings shall be completely confidential. The Committee shall also monitor and report to the
Court the progress of the investigation of similar complaints against Supreme Court officials and
employees, and handle the annual update of the Court’s ethical rules and standards for submission
to the en banc.
Section 14. Per curiam decisions. – Unless otherwise requested by the Member assigned to write
the opinion of the Court, the decision or resolution shall be rendered per curiam

(a) where the penalty imposed is dismissal from service, disbarment, or indefinite suspension
in administrative cases; or

(b) in any other case by agreement of the majority of the Members or upon request of a
Member.

Section 15. Form of resolution on motion for reconsideration in cases where the vote of Members of
the Court is divided. – The resolution of motions for reconsideration, in case the opinion of the
Court en banc or Division is divided, may be by minute resolution specifying the respective votes of
the Members.

Section 16. Filling up of Court positions in Senate and House Electoral Tribunals. – Positions for
Members of the Court in the Senate Electoral Tribunal and the House of Representatives Electoral
Tribunal shall be designated by the Chief Justice among the Members of the Court in the order of
seniority: The most senior Member shall serve as chairperson of the tribunal.

RULE 3
THE EXERCISE OF JUDICIAL FUNCTION

Section 1. The Supreme Court a court of law. – The Court is a court of law. Its primary task is to
resolve and decide cases and issues presented by litigants according to law. However, it may apply
equity where the court is unable to arrive at a conclusion or judgment strictly on the basis of law due
to a gap, silence, obscurity or vagueness of the law that the Court can still legitimately remedy, and
the special circumstances of the case.

Section 2. The Court not a trier of facts. – The Court is not a trier of facts its role is to decide cases
based on the findings of fact before it. Where the Constitution, the law or the Court itself, in the
exercise of its discretion, decides to receive evidence, the reception of evidence may be delegated
to a member of the Court, to either the Clerk of Court or one of the Division Clerks of Court, or to one
of the appellate courts or its justices who shall submit to the Court a report and recommendation on
the basis of the evidence presented.

Section 3. Advisory opinions proscribed. – The Court cannot issue advisory opinions on the state
and meaning of laws, or take cognizance of moot and academic questions, subject only to notable
exceptions involving constitutional issues.

Section 4. Cases when the Court may determine factual issues. – The Court shall respect factual
findings of lower courts, unless any of the following situations is present:

(a) the conclusion is a finding grounded entirely on speculation, surmise and conjecture;

(b) the inference made is manifestly mistaken;

(c) there is grave abuse of discretion;

(d) the judgment is based on a misapprehension of facts;

(e) the findings of fact are conflicting;

 (f) the collegial appellate courts went beyond the issues of the case, and their findings are
contrary to the admissions of both appellant and appellee;

(g) the findings of fact of the collegial appellate courts are contrary to those of the trial court;

(h) said findings of fact are conclusions without citation specific evidence on which they are
based;

(i) the facts set forth in the petition as well as in the petitioner’s main and reply briefs are not
disputed by the respondents;

(j) the findings of fact of the collegial appellate courts are premised on the supposed
evidence, but are contradicted by the evidence on record; and

(k) all other similar and exceptional cases warranting a review of the lower courts’ findings of
fact.

RULE 4
THE EXERCISE OF ADMINISTRATIVE FUNCTION

Section 1. Disciplinary cases against Court personnel. – Administrative supervision of courts and
court personnel shall be undertaken by the court en banc, provided that, in appropriate cases, such
function may be undertaken by the Divisions.

Section 2. Assisting officers in the exercise of administrative function. – In the discharge of its
administrative functions, the Court shall be assisted by the Office of the Clerk of Court in
administrative matters and cases involving the Court and the collegial appellate courts, and by the
Office of the Court Administrative matters and cases involving the lower courts.

Section 3. Administrative functions of the Court. – The administrative functions of the Court en
banc consist of , but are not limited to, the following:

(a) the discipline of justices, judges and court personnel, whether by en banc or by Division,
subject to matters assignable to the Divisions, disciplinary matters involving justices, judges
and court personnel;

(b) the temporary assignment of judges to other stations as public interest may require;

(c) the transfer of cases, from one court, administrative area or judicial region, to another, or
the transfer of venue of the trial of cases to avoid miscarriage of justice;

(d) the amendment, modification or revocation of administrative orders and circulars issued
by the Court;

(e) the policy consideration and determination of matters and issues; and

(f) matters involving the Judicial and Bar Council (JBC) or the Philippine Judicial Academy
(PHILJA) in the exercise of the Court’s supervisory authority over them.

RULE 5
PRECEDENCE AND PROTOCOL
Section 1. Concept. – The Chief Justice enjoys precedence over all the other Members of the Court
in all official functions. The Associate Justices shall have precedence according to the order of their
appointments as officially transmitted to the Supreme Court.

Section 2. When rule on precedence is applicable. – The rule on precedence shall be applied in the
following instances:

(a) in the determination of the Chairpersonship of the Division;

(b) in the seating arrangement of the Justices in all official functions; and

(c) in the choice of office space, facilities, equipment, transportation, and cottages.

Section 3. When rule on precedence is not applicable. – Precedence in rank shall not beobserved in
social and other non-official functions or be used to justify discrimination in the assignment of cases,
amount of compensation, allowance or other forms of remuneration.

PART II

RULE 6
FILING, RECEIVING, AND PROCESSING OF INITIATORY PLEADINGS AND APPEALS

Section 1. Governing rules of procedure in appeals or petitions filed in the Supreme Court. – All
appeals or petitions and pleadings that initiate an application for relief shall be filed with the Court
only in accordance with the procedure provided by the Rules of Court and other issuances of the
Court.

Section 2. Reception of pleadings and other documents. – All appeals and petitions in all types of
cases, and original records in criminal cases shall be filed with and received by the Receiving
Section of the Docket Division of the Judicial Records Office during office hours.

Section 3. Assessment and payment. – An initiatory pleading shall be processed pursuant to the
pertinent provisions of the Rules of Court and issuances of the Court. The corresponding legal fees
shall then be assessed and paid.

Section 4. Docket number and entry in logbook. – An initiatory pleading properly filed shall be
assigned a docket or G.R. (General Register) number, which shall identify the case for record
purposes until its termination under the Rules of Court. Any case for which no docket fee has been
paid shall be assigned an undocketed or UDK number. All initiatory pleadings shall be entered in the
logbook of the Receiving Section.

Section 5. Case Administration System. – Pleadings, letters, resolutions, decisions, entry of

judgment, and all the relevant information regarding any particular case identified by a G.R. number
or a UDK number shall be encoded in the Case Administration System (CAS).

Section 6. Indexing and transmittal to Docket Division. – After the recording in the logbook and
encoding in the CAS by the Receiving Section, the initiatory pleading shall be indexed on a card that
shall indicates such information as court of origin, the lower court case number(s), the nature of the
case, the names of the counsel(s) for the litigants, and the date and time of transmittal to the Docket
Division of the Judicial Records Office. The indexing of cases shall serve as a backup record of the
receipt of a case by the Court. Thereafter, the initiatory pleading shall be transmitted to the Docket
Division.

Section 7. Classification of cases. – A court attorney in the Docket Division shall preliminarily
classify the petitions and appeals filed as en banc or as Division cases in accordance with law.

Section 8. Recording of cases in the main docket book. – The case shall be recorded in the main
docket book of the Docket Division, where all pleadings, motions, communications, resolutions, the
decision, the entry of judgment, and all relevant information on a particular case shall be recorded by
handwriting. The personnel charged with making entries in the main docket book of the said
pleadings and other said pleadings and other information shall affix his or her initials after such
entries.

Section 9. The rollo for each case. – All original pleadings and other documents filed under the
same docket number shall be encased in a folder or rollo with a Court en banc-approved, color-
coded cartolina cover indicating the G.R. or UDK number, the title of the case, the date of filing, the
date of submission for decision, and the nature of the case. The pages of the pleadings and other
documents shall be consecutively numbered and attached to the rollo preferably by stitching or any
method that ensures the integrity of the contents of the rollo.

Section 10. Processing. – A court attorney at the Docket Division of the Judicial Records Office shall
accomplish the processing slips for all initiatory pleadings, including motions for extension of time to
file petition. The processing slip shall serve as the checklist of the requirements of the Rules of Court
for filing a case, and shall inform the Court of compliance or non-compliance by the appellant or
petitioner with such requirements, as gathered from the initiatory pleading filed. Information provided
by the processing slip shall be reported in the initial agenda item on the case.

Section 11. Transmittal of rollo from the Receiving Section to the Office of the Clerk of Court or the
Division Clerk of Court. – The Judicial Records Office shall transmit all rollos to the Office of the
Clerk of Court or Division Clerk of Court within forty-eight hours from receipt of pleadings,
documents or papers attached to them, unless immediate transmittal is demanded by the nature of
the case. Copies of pleadings, documents, or papers not attached to the rollo shall be distributed by
said Offices to all Members of the Court en banc or of the Division.

RULE 7
RAFFLE OF CASES

Section 1. Raffle of cases. – Every initiatory pleading already identified by a G.R. or a UDK number
shall be raffled among the Members of the Court. The Member-in-Charge to whom a case is raffled,
whether such case is to be taken up by the Court en banc or by a Division, shall oversee its progress
and disposition unless for valid reason, such as inhibition, the case has to be re-raffled, unloaded or
assigned to another Member.

Section 2. Raffle Committee. – Two Raffle Committees – one for the en banc and the other for
Division cases, each to be composed of a Chairperson and two members – shall be designated by
the Chief Justice from among the Members of the Court on the basis of seniority.

Section 3. Raffle Committee Secretariat. – The Clerk of Court shall serve as the Secretary of the
Raffle Committee. He or she shall be assisted by a court attorney, duly designated by the Chief
Justice from either the Office of the Chief Justice or the Office of the Clerk of Court, who shall be
responsible for (a) recording the raffle proceedings and (b) submitting the minutes thereon to the
Chief Justice. The Clerk of Court shall make the result of the raffle available to the parties and their
counsels or to their duly authorized representatives, except the raffle of (a) bar matters; (b)
administrative cases; and (c) criminal cases where the penalty imposed by the lower court is life
imprisonment, and which shall be treated with strict confidentiality.

Section 4. Classification of cases for raffle. – The initiatory pleadings duly docketed at the Judicial
Records Office shall be classified into en banc and Division cases for purposes of the raffle. The
Clerk of Court shall forthwith make a report on the classified cases to the Chief Justice. 1avvphi1

Section 5. Schedule of regular raffle. – Regular raffle of en banc and Division cases shall be held on
Mondays and Wednesdays, respectively.

Section 6. Special raffle of cases. – Should an initiatory pleading pray for the issuance of a
temporary restraining order or an urgent and extraordinary writ such as the writ of habeas corpus or
of amparo, and the case cannot be included in the regular raffle, the Clerk of Court shall immediately
call the attention of the Chief Justice or, in the latter’s absence, the most senior Member of the Court
present. The Chief Justice or the Senior Member of the Court may direct the conduct of a special
raffle, in accordance with the following procedure:

(a) Upon receipt of an initiatory pleading containing a motion for the conduct of a special
raffle, the Judicial Records Office shall immediately (I) process the pleading and (ii) transmit
a copy of it to the Office of the Clerk of Court.

(b) The Judicial Records Office shall inform the Clerk of Court in writing of the motion for
special raffle, and the Clerk of Court shall forthwith seek authority to conduct the special
raffle from the Chief Justice or substitute Senior Member, as the case may be.

(c) The special raffle shall be conducted immediately.

(d) The Clerk of Court shall furnish the Member-in-Charge to whom the case is raffled, the
Judicial Records Office, and the Rollo Room at the Office of the Chief Justice, copies of the
result of the special raffle in an envelope marked "RUSH". The Member-in-Charge shall also
be furnished a copy of the pleading. If the case is classified as a Division case, the Clerk of
Court shall furnish the same copies to the Office of the Clerk of Court of the Division to which
the same Member-in-Charge belongs and to the Division Chairperson.

(e) Upon receipt of the special raffle result, the Judicial Records Office shall immediately
forward the rollo to the Division concerned, with the word "RUSH" clearly indicated on
the rollo cover.

(f) Upon receipt of the rollo, the Clerk of Court – or, should the case be classified as a
Division case, the Division Clerk of Court – shall immediately (i) prepare the Agenda item on
the specially raffled case; and (ii) forward the rollo and a copy of the Special Agenda to
the Rollo Room, which shall transmit the rollo to the Member-in-Charge and distribute the
Special Agenda to the Chief Justice and the Members of the Court or to the Chairperson and
Members of the Division, as the case may be.

(g) When the Court in recess and the urgency of the case requires immediate action, the
Clerk of Court or the Division Clerk of Court shall personally transmit the rollo to the Chief
Justice or the Division Chairperson for his or her action.
Section 7. Conduct of the raffle. – The cases included in a previously prepared list shall beraffled
using a reasonably acceptable random raffle device under a system that shall ensure the fair and
equitable distribution of case load among all Members of the Court.

Section 8. Transfer of rollos of raffled cases. – The rollos of all raffled cases shall bedelivered to the
Officers of the respective Clerks of Court, for inclusion in the next agenda of the Court en banc or
the Division.

RULE 8
INHIBITION AND SUBSTITUTE OF MEMBERS OF THE COURT

Section 1. Grounds for inhibition. – A Member of the Court shall inhibit himself or herself from
participating in the resolution of the case for any of these and similar reasons:

(a) the Member of the Court was the ponente of the decision or participated in the
proceedings in the appellate or trial court;

(b) the Member of the Court was counsel, partner or member of law firm that is or was the
counsel in the case subject to Section 3(c) of this rule;

(c) the Member of the Court or his or her spouse, parent or child is pecuniarily interested in
the case;

(d) the Member of the Court is related to either party in the case within the sixth degree of
consanguinity or affinity, or to an attorney or any member of a law firm who is counsel of
record in the case within the fourth degree of consanguinity or affinity;

(e) the Member of the Court was executor, administrator, guardian or trustee in the case; and

(f) the Member of the Court was an official or is the spouse of an official or former official of a
government agency or private entity that is a party to the case, and the Justice or his or her
spouse has reviewed or acted on any matter relating to the case.

A Member of the Court may in the exercise of his or her sound discretion, inhibit himself or herself
for a just or valid reason other than any of those mentioned above.

The inhibiting Member must state the precise reason for the inhibition.

Section 2. Motion to inhibit a Division or a Member of the Court. – A motion for inhibition must be in
writing and under oath and shall state the grounds therefor.

A motion for inhibition of a Division or a Member of the Court must be acted upon by the Division or
the Member of the Court concerned, as the case may be, within ten working days from receipt
thereof except when there is an application for a temporary restraining order, in which case the
motion must be acted upon immediately.

No motion for inhibition of a Division or a Member of the Court shall be granted after a decision on
the merits or substance of the case has been rendered or issued by an Division, except for a valid or
just reason such as an allegation of a graft and corrupt practice or ground not earlier apparent.
Section 3. Effects of inhibition. – The consequences of an inhibition of a Member of the Court shall
be governed by these rules:

(a) Whenever a Member-in-Charge of a case in a Division inhibits himself for a just and valid
reason, the case shall be returned to the Raffle Committee for re-raffling among the
Members of the same Division other than the Member-in-Charge of a case, and the fifth
Member of the Division chosen by raffle among the Members of the Divisions shall act in
place of the inhibiting Member.

(b) Whenever a Member of the Division, other than the Member-in-Charge of a case, inhibits
on any of the grounds specified in Section 1, except paragraph (b), the case shall be decided
by the four remaining Members of the Division and another Member of the two other
Divisions chosen by raffle to act on the case.

(c) When a Member of the Division, other than the Member-in-Charge of a case, was
counsel or partner or member of a law firm that is or was counsel in the case before the
Division, such Member shall inhibit himself or herself, unless the Member was no longer a
partner or member of the law firm when it was engaged as counsel in the case and the
Member votes against the client of such firm. In any event, the mandatory inhibition shall
case after the lapse of ten years from the resignation or withdrawal of the Member from the
law firm, unless the Member personally handled the case when he or she was a partner or
member of the law firm.

(d) Whenever two or more Members o the Division, other than the Member-in-Charge of a
case, inhibit themselves from a case, they shall be replaced by raffle by Members of the
other Divisions.

(e) A Member of the Court who inhibits, on the grounds specified in Section 1, shall be
assigned an additional case at the next raffle of Division cases.

Section 4. Substitution of Member. – When a Member of the Court is on leave or a vacancyoccurs

in a Division, another Member from the other Divisions shall be designated by the Chief Justice by
rotation, according to a reverse order of seniority, to act as Member of the Division until the regular
Member reports back to work or a newly appointed Member assumes office, as the case may be.

RULE 9
FOLDER OF PLEADINGS, COMMUNICATIONS, DOCUMENTS AND OTHER PAPERS IN A
CASE

Section 1. The rollo of a case. – The original of all pleadings, communications, documents, and
other papers filed by the parties shall be encased in a rollo, which shall serve as their official
repository for purposes of the case. The rollo shall be properly and sequentially paginated by the
Docket Division of the Judicial Records Office to prevent intercalation or detachment of a page.

Section 2. Repository of rollos. – All rollos shall be kept in the Rollo Room in the Office of the Chief
Justice. No rollo shall be taken out except for delivery to any following: (1) the Judicial Records
Office for attachment of a pleading, communication, document or other papers filed; (2) the Office of
the Clerk of Court or the Office of the Division Clerk of Court, for the preparation of the Agenda and
to the Minutes of a Court session, as well for the attachment of the decisions or resolutions to
the rollo; (3) the Office of the Member-in-Charge or the Office of the ponente or writer of the decision
or resolution; (4) any Office or official charged with the study of the case.
All personnel charged with the safekeeping and distribution of rollos shall be bound by strict
confidentiality on the identity of the Member-in-Charge or the ponente, as well as on the integrity of
the rollos, under pain of administrative sanction and criminal prosecution for any breach thereof.

Section 3. The expediente. - The Office of the Clerk of Court of the Division Clerk of Court shall
provide copies of all pleadings, communications, documents, and other papers of a case to the
Offices of the Members of the Court for the constitution of an expediente to facilitate access and
easy reference to a case.

Section 4. Confidentiality of identify of Member-in-Charge or ponente and of Court actions. –

Personnel assigned to the Rollo Room and all other Court personnel handling documents relating to
the raffling of cases are bound by strict confidentiality on the identify of the Member-in-Charge or
ponente and on the actions taken on the case.

Rollo Room personnel may release a rollo only upon an official written request from the Chief
Judicial Staff Head or the Chief of Office of the requesting Office. The rollo room personnel may
release a rollo only to an authorized personnel named in the official written request. All personnel
handling the rollos are bound by the same strict confidentiality rules.

Section 5. Consolidation of cases. – The Court may order the consolidation of cases involving
common questions of law or of act. The Chief Justice shall assign the consolidated cases to he
Member-in-Charge to whom the case having the lower or lowest docket number has been raffled,
subject to equalization of case load by raffle. The Judicial Records Office shall see to it that (a)
the rollos of the consolidated cases are joined together to prevent the loss, misplacement or
detachment of any of them; and (b) the cover of each rollo indicates the G.R. or UDK number of the
case with which the former is consolidated.

The Member-in-Charge who finds after study that the cases do not involve common questions of law
or of fact may request the Court to have the case or cases returned to the original Member-in-
Charge.

Section 6. Reconstitution of lost rollo. – When a rollo is lost and a diligent search for it proves futile,
the personnel-in-charge of the Rollo Room shall immediately inform the Chief Justice or the proper
Chairperson of the Division of such loss. Without prejudice to any administrative or criminal liability
of the personnel responsible for the loss, the Chief Justice or the Chairperson of the Division
concerned shall direct the Judicial Records Office to reconstitute the rollo and request the counsel
and the parties to personally appear and submit, on a specified date, legible copies of the pleadings,
communications, documents, and other papers filed in the case, and to authenticate their respective
submissions.

The same procedure shall be observed when the loss of a rollo occurs in the office of a Member of
the Court. The Judicial Staff Head concerned shall immediately report the loss.

Entries in the main docket book of the Judicial Records Office, as well as in the Case4
Administration System, shall be used for verification purposes.

RULE 10
COURT SESSIONS AND HEARINGS

Section 1. Court sessions. – The Court en banc shall hold sessions every Tuesday. The Divisions
may meet on Monday s and Wednesdays. Special sessions may be held whenever necessary. In
every session, proceedings shall follow the agenda of cases and matters to be taken up. Actions
taken during sessions shall be duly reflected in the minutes of the proceedings.

Section 2. Confidentiality of court sessions. – Court sessions are executive in character, with only
the Members of the Court present. Court deliberations are confidential and shall not be disclosed to
outside parties, except as may be provided herein or as authorized by the Court.

The Chief Justice or the Division Chairperson shall record the action or actions taken in each case
for transmittal to the Clerk of Court or Division Clerk of Court after each session. The notes of the
Chief Justice and the Division Chairperson, which the Clerk of Court and the Division Clerks of Court
must treat with strict confidentiality, shall be the bases of the minutes of the sessions.

Section 3. Oral arguments. – The Court may hear any case on oral arguments upon defined issues.
The petitioner shall argue first, followed by the respondent and the amicus curiae, if any. Rebuttal
arguments may be allowed by the Chief Justice or the Chairperson. If necessary, the Court may
invite amicus curiae.

Section 4. Transcripts of hearings, recording of oral arguments. – Oral arguments shall be recorded
by at least two stenographers, alternately taking stenographic notes of the proceedings. The
stenographers shall transcribe their notes and submit the consolidated transcripts to the Clerk of
Court or the Division Clerk of Court within twenty-four hours from the termination of the oral
arguments. The Clerk of Court or the Division Clerk of Court shall review the transcripts of
stenographic notes, using the tape or electronic of the hearing for verification purposes.

RULE 11
AGENDA AND MINUTES OF COURT SESSIONS

Section 1. Agenda. – The Clerk o9f Court and the Division Clerks of Court shall ensure that all
pleadings, communications, documents, and other papers duly filed in a case shall be reported in
the Agenda for consideration by the Court en banc or the Division. The Agenda items for each case
shall adequately apprise the Court of relevant matters for its consideration.

Section 2. Periods for inclusion of pleadings, motions, and other matters in the agenda. – The Clerk
of Court and the Division Clerks of Court shall observe the following periods for the inclusion of
pleadings, motions, and other matters in the agenda counted from receipt:

(a) motions for extension of time to file petitions – immediately calendared;

(b) appeals in criminal cases under Article 47 of the Revised Penal Code, as amended, or
under Rule 122 of the Rules of Court – within fifteen days;

(c) petitions under Rules 45, 64 and 65 – within ten days, unless a party asks for the
issuance of a temporary restraining order or an extraordinary writ, immediate inclusion of the
case in the Agenda; and

(d) other pleadings – within ten days.

The foregoing notwithstanding, the Chief Justice may direct the immediate inclusion ofany matter in
the agenda.
Section 3. Minutes of proceedings. – The Chief Justice or the Chairperson of the Divisionshall
provide the Clerk of Court or the Division Clerk of Court his or her notes on the actions taken by the
Court. The copy of the Agenda containing the handwritten notes of the Chief Justice or Division
Chairperson shall serve as the basis for the preparation of the minutes of the session by the Office
of the Clerk of Court or of the Division Clerks of Court.

Section 4. Preparation of minutes of proceedings. – Within forty-eight hours from the time the copy
of the Agenda containing the handwritten actions of the Court is transmitted to him or her, the Clerk
of Court or the Division Clerk of Court shall submit the draft of the minutes of the session for the
approval by the Chief Justice or the Division Chairperson. The draft of the minutes of a Court
session shall follow the chronological sequence of the cases in the Agenda. Excerpts of the minutes
pertaining to a particular case quoted in a letter of the Clerk of Court or the Division Clerk of Court to
the parties, and extended resolutions showing the actions of the Court on the cases on agenda shall
be released to the parties only after the Chief Justice or the Division Chairperson has approved the
minutes in writing.

Section 5. Confidentiality of minutes prior to release. – The Offices of the Clerk of Court and of the
Division Clerks of Court are bound by strict confidentiality on the action or actions taken by the Court
prior to the release of the resolutions embodying the Court action or actions.

A resolution is considered officially released once the envelope containing a final copy of it
addressed to the parties has been transmitted to the process server for personal service or to the
mailing section of the Judicial Records Office. Only after its official release may a resolution be made
available to the public.

Section 6. Preparation of minute resolutions and unsigned extended resolutions. – A minute

resolution quoting an excerpt of the minutes of Court sessions pertinent to a case shall be prepared
by the court attorneys in the Office of the Clerk of Court or the Division Clerk of Court and personally
reviewed, approved, and initialled by the Clerk of Court or the Division Clerk of Court before
submission for final approval by the Chief Justice or the Division Chairperson. An unsigned extended
resolution may be prepared by the Office of the Member-in-Charge or by the Office of the Clerk of
Court or Division Clerk of Court, upon instructions of either the Chief Justice or the Division
Chairperson, who shall approve the resolution. The Chief Justice and the Division Chairperson shall
order the Clerk of Court or the Division of Clerk of Court to release duly approved minute and
unsigned extended resolutions.

Section 7. Form of notice of a minute resolution. – A notice of a minute resolution shall be embodied
in a letter of the Clerk of Court or the Division Clerk of Court notifying the parties of the action or
actions taken in their case in the following form:

(SUPREME COURT Seal)

REPUBLIC OF THE PHILIPPINES

SUPREME COURT
Manila

EN BANC/_____ DIVISION

NOTICE

Sirs/Mesdames:
Please take notice that the Court en banc/_____ Division issued a Resolution dated
______________, which reads as follows:

"G.R./UDK/A.M./A.C. NO. _________ (TITLE). – (QUOTE RESOLUTION")

Very truly yours,

(Sgd.)

CLERK OF COURT/Division Clerk of Court

Section 8. Release of resolutions. – All resolutions shall be released within forty-eight hours from
approval of the Minutes of any session by the Chief Justice or the Division Chairperson. Resolutions
with the following actions shall be released immediately to the parties:

(a) directing the issuance of extraordinary writs;

(b) granting or denying motions for extension of time to file petitions or subsequent
pleadings, or other motions of urgent nature;

(c) granting applications for a temporary restraining order/status quo order/writ of preliminary
injunction;

(d) preventively suspending judges or court personnel; and

(e) directing any party, the Office of the Court Administrator, or any other official or agency to
submit a comment, a report or a recommendation within a non-extendible period.

RULE 12
VOTING REQUIREMENTS

Section 1. Voting requirements. – (a) All decisions and actions in Court en banc cases shall be
made up upon the concurrence of the majority of the Members of the Court who actually took part in
the deliberation on the issues or issues involved and voted on them.

(b) All decisions and actions in Division cases shall be made upon the concurrence of at
least three Members of the Division who actually took part in the deliberations on the issue or
issues involved and voted on them.1

Section 2. Tie voting in the Court en banc. – (a) In civil cases, including special proceedings and
special civil actions, where the Court en banc is equally divided in option or the necessary majority
vote cannot be had, the Court shall deliberate on it anew. If after such deliberation still no decision is
reached, the Court shall, in an original action filed with it, dismiss the case; in appealed cases, it
shall affirm the judgment or order appealed from.

(b) In criminal cases, when the Court en banc is equally divided in option of the necessary
majority cannot be had, the Court shall deliberate on it anew. If after such deliberation still no
decision is reached, the Court shall reverse the judgement of conviction of the lower court
and acquit the accused.
 (c) When, in an administrative case against any of the Justices of the appealed courts or any
of the Judges of the trial Courts, the impossible penalty is dismissal and the Court en banc is
equally divided in opinion or the majority vote required by the Constitution for dismissal
cannot be had, the Court shall deliberate on the case anew. If after such deliberation still no
decision is reached, the Court shall dismiss the administrative case, unless a majority vote
decides to impose a lesser penalty.

(d) Where the Court en banc is equally divided in opinion of the majority vote required by the
Constitution for annulling any treaty, international or executive agreement, law, presidential
decree, proclamation, order, instruction, ordinance, or regulation cannot be had, the Court
shall deliberate on the case anew. If such deliberation still no decision is reached, the Court
shall deny the challenge to the constitutionally of the act.

(e) In all matters incidental to the main action where the Court en banc is equally divided in
opinion, the relief sought shall be denied.

Section 3. Failure to obtain required votes in Division. – Where the necessary majority of three
votes is not obtained in a case in a Division, the case shall be elevated to the Court en banc.

Section 4. Leaving a vote. – A Member who goes on leave or is unable to attend the voting on nay
decision, resolution, or matter may leave his or her vote in writing, addressed to the Chief Justice or
the Division Chairperson, and the vote shall be counted, provided that he or she took part in the
deliberation.

RULE 13
DECISION-MAKING PROCESS

Section 1. Period for deciding or resolving cases. – The Court shall decide or resolve all cases
within twenty-four months from the date of submission for resolution. A case shall be deemed
submitted for decision or resolution upon the filling of the last pleading, brief, or memorandum that
the Court or its Rules require.

The Member-in-charge, assigned to oversee the progress and disposition of a case, who is unable
to decide or resolve the oldest cases within that period shall request the Court en banc for an
extension of the period, stating the ground for the request. The Court shall act on the request as it
sees fit, according to the circumstances of the case.

Should a Member object to the request, the Court shall grant a final extension of thirty days within
the Member-in-Charge shall report the case for deliberation, falling which, the case shall be re-
raffled to another Member who shall submit the report within thirty days from assignment.

Section 2. List of cases submitted for decision or resolution. – The Clerk of Court and the Division
Clerks of Court shall maintain a system for apprising the Court periodically, at least six months
before the last day of the twenty-four-month period for deciding or resolving a case, of the approach
of such cut off date.

Section 3. Actions and decisions, how reached. – The actions and decisions of the Court
whether en banc or through a Division, shall be arrived at as follows:

(a) Initial action on the petition or complaint. – After a petition or complaint has been placed
on the agenda for the first time, the Member-in-Charge shall except in urgent cases, submit
 to the other Members at least three days before the initial deliberation in such case, a
summary of facts, the issue or issues involved, and the arguments that the petitioner
presents in support of his or her case. The Court shall, in consultation with its Members,
decide on what action it will take.

(b) Action on incidents. – The Member-in-Charge shall recommend to the Court the action to
be taken on any incident during the pendency of the case.

(c) Decision or Resolution. – When a case is submitted for decision or resolution, the
Member-in-Charge shall have the same placed in the agenda of the Court for deliberation.
He or she shall submit to the other Members of the Court, at least seven days in advance, a
report that shall contain the facts, the issue or issues involved, the arguments of the
contending parties, and the laws and jurisprudence that can aid the Court in deciding or
resolving the case. In consultation, the Members of the Court shall agree on the conclusion
or conclusions in the case, unless the said Member requests a continuance and the Court
grants it.

Section 4. Continuance in deliberations. – The deliberation on a case may be adjourned to another

date to enable the Member who requested it to further study the case; provided, however, that the
total period of continuances shall not exceed three months from the date was first adjourned. This
rule shall likewise apply to actions on months for reconsideration of the decisions and resolutions of
the Court, unless a Member, whose vote in the original decision of a divided Court matters, is about
to retire. In such a situation, the action on the motion for reconsideration submitted for resolution
shall be made before his or her retirement.

Section 5. Ponente or Opinion writer. – Immediately upon arriving at a conclusion regarding the
issue or issues in the case, the Court shall assign2 a Member to write the opinion of the Court.
Should the majority vote of the court on such conclusion be different from or contrary to the
conclusion arrived at by the ponente, the writing of the new opinion shall be assigned to a ponente
chosen by the majority.

Section 6. Manner of adjudication. – The Court shall adjudicate cases as follows:

(a) By decision, when the Court disposes of the case on its merits and its rulings have
significant doctrinal values; resolve novel issues; or impact on the social, political, and
economic life of the nation. The decision shall state clearly and distinctly the facts and the
law on which it is based. It shall bear the signatures of the members who took part in the
deliberation.

(b) By signed resolution, when the Court comprehensively resolves the motion for
reconsideration filed in the case or when a dissenting opinion is registered against such
resolution. The signed resolution shall no longer discuss issues resolved in the decision and
need not repeat the facts and the law stated in it. It shall also bear the signatures of the
Members who took part in the deliberation.

(c) By unsigned resolution when the Court disposes of the case on the merits, but its ruling is
essentially meaningful only to the parties; has no significant doctrinal value; or is minimal
interest to the law profession, the academe, or the public. The resolution shall state clearly
and distinctly the facts and the law on which it is based.

(d) By minute resolution when the Court (1) dismisses a petition filed under Rule 64 or 65 of
the Rules of Court, citing as legal basis the failure of the petition to show that the tribunal,
 board or officer exercising or quasi-judicial functions has acted without or in excess of
jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction; (2)
denies petition filed under Rule 45 of the said Rules, citing as legal basis the absence of
reversible error committed in the challenged decision, resolution, or order of the court below;
(3) Dismisses an administrative complaint, citing as legal basis failure to show a prima facie
case against the respondent; (4) denies a motion for reconsideration, citing as legal basis the
absence of a compelling or cogent reason to grant the motion, or the failure to raise any
substantial argument to support such motion; and (5) dismisses a petition on technical
grounds or deficiencies.

Section 7. Dissenting separate or concurring opinion. – A Member who disagrees with the majority
opinion, its conclusions, and the disposition of the case may submit to the Chief Justice or Division
Chairperson a dissenting opinion, setting forth the reason for such dissent. A Member who agrees
with the result of the case, but based on different reason or reasons may submit a separate opinion;
a concurrence "in the result" should state the reason for the qualified concurrence. A Member who
agrees with the main opinion, but opts to express other reasons for concurrence may submit a
concurring opinion. The dissenting, separate, or concurring opinion must be within one week from
the date the writer of the majority opinion presents the decision for the signature of the Members.

Section 8. Attestations and certifications on consultations held. – In cases decided by a Division, the
Division Chairperson shall issue an attestation regarding the conduct of consultation among its
Members and the assignment of the writing of the decision to a Member after such consultation. In
all decided cases, whether by the Court en banc or by a Division, the Chief shall issue a certification
regarding the conduct of consultant among the Members of the Court and the assignment of the
writing of the decision to a Member after such consultation.

Section 9. Submission of decisions and resolutions. – The original of all decisions and resolutions
as well as separate, concurring, or dissenting opinions shall be submitted to the Chief Justice,
accompanied by electronic copies. The Judicial Staff Head of the Office of the ponente or the writer
of the majority opinion shall certify, in writing, the authenticity of the electronic copies, which shall be
placed in a separately marked, dated, and signed envelop.

Section 10. Promulgation of decisions and resolutions. – The Clerk of Court or the Division Clerk of
Court shall promulgated every decision or resolution within forty-eight hours from receipt of the same
from the Office of the Chief Justice, indicating the date and hour of promulgation and affixing his or
her signature underneath such date and hour. In the absence of the Clerk of Court, the First Division
Clerk of Court shall promulgated the decisions of the Court en banc.

Section 11. Authentication of decisions and resolutions. – All decisions, resolutions, and other Court
issuances shall be released to the parties concerned only after these shall have been authenticated
by the Clerk of Court of Division Clerk of Court through a bar code at the bottom of each page, which
he or she shall personally affix, or by other means to protect the authenticity and integrity of such
document. They shall also initial every page of per curiam decisions, minute resolutions, and
unsigned extended resolutions.

RULE 14
HANDLING AND DISSEMINATION OF DECISIONS AND RESOLUTIONS

Section 1. Promulgation. – A decision or resolution shall deemed promulgated on the date it is

received and acknowledged by the Clerk of Court or Division Clerk of Court from the Office of the
Chief Justice or the Division Chairperson.
Section 2. Report of promulgation. – Within twenty-four hours from the promulgation of a decision or
resolution, the Clerk of Court or the Division Clerk of Court shall formally inform the Chief Justice or
the Division Chairperson of such promulgation.

Section 3. Electronic dissemination of decision or resolution. – Upon receipt of the report of

promulgation, the Chief Justice shall direct the Chief Justice’s Staff Head to deliver immediately the
magnetic or electronic copy of the decision or resolution to the Management Information Systems
Office (MISO).

Section 4. Responsibilities of the MISO. – Upon receipt of a copy of a promulgated decision or

resolution, the MISO shall

(a) log the date and time of receipt;

(b) format the decision or resolution in such a way as to make it readable on the Supreme
Court website;

(c) scan any handwritten notes on the signature page, such as "In the result," and include
signature page with the same handwritten notes for posting;

(d) take note of any typographical error in the magnetic or electronic file of the decision or
resolution, and immediately bring it to the attention of the writer of the decision or resolution,
or the Chief Justice in case of a per curiam decision or when the writer has ceased to serve
the Court;

(e) immediately furnish the Library with soft copies of all decisions and resolutions for
archival purposes.

Section 5. Service and dissemination of decisions and signed resolutions. – The Clerk of Court or
the Division Clerk of Court shall see to the service of authenticated copies of the promulgated
decision or signed resolution upon the parties in accordance with the provisions of the Rules of
Court. The Clerk of Court of the Division Clerk of Court shall also immediately provide hard copies of
the same to the Public Information Office, Office of the Court Administrator, Office of the Chief
Attorney, Philippine Judicial Academy, and the Library.

Section 6. Safekeeping of original hard copy of decision and drafting of syllabus of each
promulgated decision. – As soon as hard copies of the decision or resolution shall have been served
on the parties and disseminated in accordance with these Rules, the Clerk of Court or the Division
Clerk of Court shall deliver to the Office of the Reporter (a) the original hard copy of each signed
decision or resolution for safekeeping, and (b) a reproduction of such hard copy for the preparation
of the concise synopsis and syllabus of each decision or resolution duly approved by the writer of the
decision or by the Chief Justice if the writer has retired or is no longer in the judicial service, prior to
publication in the Philippine Reports. The Office of the Reporter shall (a) see to the secured
safekeeping of original decisions that shall be collated and bound on a monthly basis, and (b) be
responsible for the updated publication of the Philippine Reports.

Section 7. Publication of decisions and resolutions. – A decision and signed resolution of the Court
shall be published in the Philippine Reports, with the synopsis and syllabus prepared by the Office of
the Reporter. Other decisions and signed resolutions not so published may also be published in the
Philippine Reports in the form of memoranda prepared by the Office of the Reporter. The Public
Information (PIO) may choose and submit significant decisions and resolutions for publication in the
Official Gazette.
 RULE 15
FINALITY OF DECISION AND RESOLUTIONS

Section 1. Finality of decisions and resolutions. – A decision or resolution of the Court may be
deemed final after the lapse of fifteen days from receipt by the parties of a copy of the same subject
to the following:

(a) the date of receipt indicated on the registry return card signed by the party-or, in case he
or she is represented by counsel, by such counselor his or her representative- shall be the
reckoning date for counting the fifteen-day period; and

(b) if the Judgement Division is unable to retrieve the registry return card within fifteen days
from mailing, it shall immediately inquire from the receiving post office on (i) the date when
the addressee received the mailed decision or resolution; and (ii) who received the same,
with the information provided by authorized personnel of the said post office serving as the
basis for the computation of the fifteen-day period.

Section 2. Motion for reconsideration. – A motion for reconsideration filed within the fifteen-day
period from receipt of a copy of the decision or resolution shall stay the execution of such decision or
resolution unless, for good reasons shown, the Court directs otherwise.

Section 3. Second motion for reconsideration. – The Court shall not entertain a second motion for
reconsideration, and any exception to this rule can only be granted in the higher interest of justice by
the Court en banc upon a vote of at least two-thirds of its actual membership. There is
reconsideration "in the higher interest of justice" when the assailed decision is not only legally
erroneous, but is likewise patently unjust and potentially capable of causing unwarranted and
irremediable injury or damage to the parties. A second motion for reconsideration can only be
entertained before the ruling sought to be reconsidered becomes final by operation of law or by the
Court’s declaration.1avvph!1

In the Division, a vote of three Members shall be required to elevate a second motion for
reconsideration to the Court En Banc.

RULE 16
ENTRY OF JUDGEMENT

Section 1. Entry of judgement. – The entry of judgement covering the final decisions and resolutions
of the Court shall be made in accordance with the Rules of Court. The date of entry of judgement
shall be the date such decision or resolution becomes executory, unless the Court directs its
immediate execution.

Section 2. How entry of judgement is made. – The entry of judgement shall be in the form of a
certification indicating the date when the final decision or resolution of the Court has become
executory and entered in the book of judgements. The entry shall restate the dispositive portion of
the judgement of final resolution, and be duly signed by the Chief of the Judicial Records Office as
the Deputy Clerk of Court. The Judicial Records Office shall furnish the parties with a photocopy of
the entry of judgement, which shall be authenticated by the Chief of the Judicial Records Office in
the same manner that decisions and resolutions are authenticated.

Section 3. Time frame for entry of judgement. – Unless the Court requires an immediate entry of
judgement, the Judicial records Office shall enter judgement within fifteen days from the expiration of
the fifteen-day reglementary period for filling a motion for reconsideration.
Section 4. Return of case records to lower court. – The records of every decided case shall be
returned to the court where it originated for execution of judgement on the same day that entry of
judgement is made.

RULE 17
CORRECTION OF TYPOGRAPHICAL ERRORS IN DECISIONS AND RESOLUTIONS

Section 1. Correction of typographical errors in decisions and resolutions. – Typographical errors

discovered after the promulgation or even after the publication of a decision or signed resolution may
be corrected as follows:

(a) The Reporter and the MISO shall, with the authority of the writer of the decision or
resolution, make the necessary correction of typographical errors. In per curiam decisions
and in unsigned resolutions, or when the ponente has retired, resigned or is no longer in the
judicial service, the authority shall be given by the Chief Justice.

(b) The correction of typographical errors shall be made by crossing out the incorrect word
and inserting by hand the appropriate correction immediately above the corrected or
cancelled word. The writer of the decision of the Chief Justice, as the case may be, shall
authenticate the correction by affixing his or her initials and the date or correction
immediately below the correction.

Section 2. Report of corrections made. – The Reporter and the MISO Chief shall submit to the
Court, through the Clerk of Court, a quarterly report of cases where the decisions and resolutions
have been corrected. The Clerk of Court shall thereafter include the report in the Agenda of the
Court en banc for confirmation of the correction.

RULE 18
EFFECTIVITY

Section 1. Effectivity. – These Rules shall take effect fifteen (15) days after publication in a
newspaper of general circulation in the Philippines.

xxx

Footnotes

1 Art. VIII of the Constitution states:

Section 4. (1) The Supreme Court shall be composed of the Chief Justice and
fourteen Associate Justices. It may sit en banc or in its discretion, in divisions of
three, five, or seven Members. Any vacancy shall be filled within ninety days from the
occurrence thereof.

(2) All cases involving the constitutionality of a treaty, international or

executive agreement, or law, which shall be heard by the Supreme Court en
banc, and all other cases which under the Rules of Court are required to be
heard en banc, including those involving the constitutionally, application, or
 operation of presidential decrees, proclamations, orders, instructions,
ordinances, and other regulations, shall be decided with the concurrence of a
majority of the Members who actually took part in the deliberations on the
issues in the case and voted thereon.

(3) Cases of matters heard by a division shall be decided or resolved with the
concurrence of a majority of the Members who actually took part in the
deliberation on the issues in the case and voted thereon, and in no case,
without concurrence of at least three of such members. When the required
number is not obtained, the case shall be decided en banc: Provided, that no
doctrine or principle of law laid down by the court in a decision rendered en
banc or in division may be modified or reversed except by the \court sitting en
banc.

2 Art. VIII of the Constitution provides:

Section 13. The conclusions of the Supreme Court in any case submitted to it for
decision en banc or in division shall be reached in consultation before the case is
assigned to a Member for the writing of the opinion of the Court. A certification to this
effect signed by the Chief Justice shall be issued and a copy thereof attached to the
record of the case and served upon the parties. Any Member who took no part, or
dissented, or abstained from a decision or resolution must state the reason thereof.
The same requirements shall be observed by all lower collegiate courts.

SPECIAL THIRD DIVISION

G.R. No. 203655, September 07, 2015

SM LAND, INC., Petitioner, v. BASES CONVERSION AND DEVELOPMENT AUTHORITY AND ARNEL
PACIANO D. CASANOVA, ESQ., IN HIS OFFICIAL CAPACITY AS PRESIDENT AND CEO OF
BCDA, Respondents.

RESOLUTION

VELASCO JR., J.:

Once again, respondent-movants Bases Conversion Development Authority (BCDA) and Arnel Paciano D.
Casanova, Esq. (Casanova) urge this Court to reconsider its August 13, 2014 Decision1 in the case at bar. In
their Motion for Leave to file Second Motion for Reconsideration and to Admit the Attached Second Motion
for Reconsideration (With Motion for the Court en banc to Take Cognizance of this Case and/to Set the Case
for Oral Argument Before the Court en banc),2 respondent-movants remain adamant in claiming that the
assailed rulings of the Court would cause unwarranted and irremediable injury to the government,
specifically to its major beneficiaries, the Department of National Defense (DND) and the Armed Forces of
the Philippines (AFP).3

The motion fails to persuade.

The instant recourse partakes the nature of a second motion for reconsideration, a prohibited
pleading under Section 2, Rule 56,4 in relation to Sec. 2, Rule 52 of the Rules of Court. The rule
categorically states: "no second motion for reconsideration of a judgment or final resolution by the same
party shall be entertained." The rationale behind the rule is explained in Manila Electric Company v.
Barlis, thusly:

The propriety or acceptability of such a second motion for reconsideration is not contingent upon the
averment of "new" grounds to assail the judgment, i.e.. grounds other than those theretofore presented and
rejected. Otherwise, attainment of finality of a judgment might be staved off indefinitely, depending on the
party's ingeniousness or cleverness in conceiving and formulating "additional flaws" or "newly discovered
errors'" therein, or thinking up some injury or prejudice to the rights of the movant for reconsideration.
"Piece-meal1" impugnation of a judgment by successive motions for reconsideration is anathema, being
precluded by the salutary axiom that a party seeking the setting aside of a judgment, act or proceeding
must set out in his motion all the grounds therefor, and those not so included are deemed waived and cease
to be available for subsequent motions.

For all litigation must come to an end at some point, in accordance with established rules of procedure and
jurisprudence. As a matter of practice and policy, courts must dispose of every case as promptly as possible;
and in fulfillment of their role in the administration of justice, they should brook no delay in the termination
of cases by stratagems or maneuverings of parties or their lawyers...5

Indeed, all cases are to eventually reach a binding conclusion and must not remain indefinitely afloat in
limbo. Otherwise, the exercise of judicial power would be for naught if court decisions can effectively be
thwarted at every turn by dilatory tactics that prevent the said rulings from attaining finality. Hence, the
Court has taken a conservative stance when entertaining second motions for reconsideration, allowing only
those grounded on extraordinarily persuasive reasons and, even then, only upon express leave first
obtained.6 As proscribed under Sec. 3, Rule 15 of the Internal Rules of the Supreme Court:

SEC. 3. Second motion for reconsideration. - The Court shall not entertain a second motion for
reconsideration, and any exception to this rule can only be granted in the higher interest of
justice by the Court en banc upon a vote of at least two-thirds of its actual membership. There is
reconsideration "in the higher interest of justice" when the assailed decision is not only legally erroneous,
but is likewise patently unjust and potentially capable of causing unwarranted and irremediable injury or
damage to the parties. A second motion for reconsideration can only be entertained before the ruling sought
to be considered becomes final by operation of law or by the Court's declaration.

In the Division, a vote of three Members shall be required to elevate a second motion for
reconsideration to the Court En Banc.7
(emphasis added) ChanRobles Vi rtua lawlib rary

Succinctly put, the concurrence of the following elements are required for a second motion for
reconsideration to be entertained: chanRob lesvi rtual Lawl ibra ry

1. The motion should satisfactorily explain why granting the same would be in the higher
interest of justice; c ralawlawl ib rary

2. The motion must be made before the ruling sought to be reconsidered attains finality; cralawlaw lib rary

3. If the ruling sought to be reconsidered was rendered by the Court through one of its
Divisions, at least three (3) members of the said Division should vote to elevate the case to
the Court En Banc; and
4. The favorable vote of at least two-thirds of the Court En Banc's actual membership must be
mustered for the second motion for reconsideration to be granted.

Unfortunately for respondent-movants, the foregoing requirements do not obtain in the case at bench. To
begin with, there are no extraordinarily persuasive reasons "in the higher interest of justice" on which the
instant second motion for reconsideration is anchored on. The enumerated grounds for the second motion
for reconsideration say as much:

GROUNDS8

I
THE AGREEMENT BETWEEN SMLI AND BCDA WAS NEVER PERFECTED TO COMPEL BCDA TO COMPLETE THE
COMPETITIVE CHALLENGE AS THERE WAS NO MEETING OF THE MINDS.

II

THE GOVERNMENT RESERVATION TO CANCEL THE COMPETITIVE CHALLENGE IS A POLICY DECISION AND
REMAINS ELECTIVE IN THE ENTIRE PROCEEDINGS AND BINDING TO ALL PRIVATE SECTOR ENTITIES
INCLUDING SMLI.

III

THE DECISION TO TERMINATE THE COMPETITIVE CHALLENGE IS A POLICY AND ECONOMIC DECISION.
MANDAMUS WILL THEREFORE NOT LIE.

IV

ESTOPPEL CANNOT OPERATE TO PREJUDICE THE GOVERNMENT.

THE PERCEIVED GOVERNMENT LOSSES IS NOT IMAGINED BUT REAL.

Based on the records, the second motion for reconsideration is a mere rehash, if not a reiteration, of
respondent-movants' previous arguments and submissions, which have amply been addressed by the Court
in its August 13, 2014 Decision, and effectively affirmed at length in its March 18, 2015 Resolution.9

To recapitulate, there exists between SMLI and BCDA a perfected agreement, embodied in the Certification
of Successful Negotiations, upon which certain rights and obligations spring forth, including the
commencement of activities for the solicitation for comparative proposals.10 As evinced in the Certification of
Successful Negotiation:

NOW, THEREFORE, for and in consideration of the foregoing, BCDA and SMLI have, after successful
negotiations pursuant to Stage II of Annex C x x x. reached an agreement on the purpose, terms and
conditions on the JV development of the subject property, which shall become the terms for the Competitive
Challenge pursuant to Annex C of the Guidelines, x x x.11

xxxx

BCDA and SMLI have agreed to subject SMLI's Original Proposal to Competitive
Challenge pursuant to Annex C - Detailed Guidelines for Competitive Challenge Procedure for Public-Private
Joint Ventures of the NEDA .TV guidelines, which competitive challenge process shall be immediately
implemented following the Terms of Reference (TOR) Volumes 1 and 2.12 (emphasis added)

Under the agreement and the National Economic Development Authority Joint Venture Guidelines (NEDA JV
Guidelines), the BCDA is duty-bound to proceed with and complete the competitive challenge after the
detailed negotiations proved successful. Thus, the Court found that BCDA gravely abused its discretion for
having acted arbitrarily and contrary to its contractual commitment to SMLI, to the damage and prejudice of
the latter, when it cancelled the competitive challenge prior to its completion.13

Respondent-movants' reliance on the Terms of Reference (TOR) provision on Qualifications and Waivers14 to
cancel the Swiss Challenge is misplaced for the provision, as couched, focuses only on the eligibility
requirements for Private Sector Entities (PSEs) who wish to challenge SMLI's proposal, and not to the Swiss
Challenge in its entirety.15 To rule otherwise - that the TOR allows the BCDA to cancel the competitive
challenge at any time - would contravene the NEDA JV Guidelines, which has the force and effect of law.16

Respondent-movants cannot also find solace in the dictum that the State is never be barred by estoppel by
the perceived mistakes or errors of its officials or agents.17 As jurisprudence elucidates, the doctrine is
subject to exceptions, viz:
Estoppels against the public are little favored. They should not be invoked except in a rare and unusual
circumstances, and may not be invoked where they would operate to defeat the effective operation of a
policy adopted to protect the public. They must be applied with circumspection and should be applied only in
those special cases where the interests of justice clearly require it. Nevertheless, the government must not
be allowed to deal dishonorably or capriciously with its citizens, and must not play an ignoble part or do a
shabby thing; and subject to limitations x x x, the doctrine of equitable estoppel may be invoked against
public authorities as well as against private individuals.18

Here, despite BCDA's repeated assurances that it would respect SMLFs rights as an original proponent, and
after putting the latter to considerable trouble and expense, BCDA went back on its word and instead
ultimately cancelled its agreement with SMLI.19 BCDA's capriciousness became all the more evident in its
conflicting statements as regards whether or not SMLI's proposal would be advantageous to the
government.20 The alleged dubiousness of the proceeding that led to the perfection of the agreement cannot
also be invoked as a ground to cancel the contract for to rule that irregularities marred the actions of BCDA's
former board and officers, as respondent-movant would have us to believe, would be tantamount to
prematurely exposing them, who are non-parties to this case, to potential administrative liability without
due process of law.21

Respondent-movants would then asseverate that to proceed with the competitive challenge starting at the
floor price of P38,500.00 per square meter is patently unjust and grossly disadvantageous to the
government since the property in issue is allegedly appraised at P78,000.00 per square meter.22 However,
this alleged adverse economic impact on the government, in finding for SMLI, remains speculative. To
clarify, Our ruling did not award the project in petitioner's favor but merely ordered that SMLI's proposal be
subjected to a competitive challenge. And lest it be misunderstood, the perceived low floor price for the
project, based on SMLI's proposal, remains just that - a floor price. Without first subjecting SMLI's proposal
to a competitive challenge, no bid can yet be obtained from private sector entities and, corollarily, no
determination can be made at present as to whether or not the final bid price for the project is indeed below
the property's fair market value.23

Overall, the foregoing goes to show that the BCDA failed to establish a justifiable reason for its refusal to
proceed with the competitive challenge.24 We are left to believe that the cancellation of the competitive
challenge, in violation not only of the agreement between the parties but also of the NEDA JV Guidelines,
was only due to BCDA's whims and caprices, and is correctible by the extraordinary writ of certiorari .

With the foregoing disquisitions, respondent-movants' second motion for reconsideration, as its first, is
totally bereft of merit. There exists no argument "in the higher interest of justice" that would convincingly
compel this Court to even admit the prohibited pleading. It also then goes without saying that this Division
does not find cogent reason to elevate the matter to the Court en banc.

Furthermore, it is well to note that the Court's ruling in this case has already attained finality and an Entry
of Judgment25 has correspondingly been issued. The Court, therefore, no longer has jurisdiction to modify
the Decision granting SMLI's petition for its finality and executoriness consequently rendered it immutable
and unalterable.26 As elucidated in Mocorro, Jr. v. Ramirez:

This quality of immutability precludes the modification of a final judgment, even if the modification is meant
to correct erroneous conclusions of fact and law. And this postulate holds true whether the modification is
made by the court that rendered it or by the highest court in the land. The orderly administration of justice
requires that, at the risk of occasional errors, the judgments/resolutions of a court must reach a point of
finality set by the law. The noble purpose is to write finis to dispute once and for all. This is a fundamental
principle in our justice system, without which there would be no end to litigations. Utmost respect and
adherence to this principle must always be maintained by those who exercise the power of adjudication. Any
act, which violates such principle, must immediately be struck down. Indeed, the principle of conclusiveness
of prior adjudications is not confined in its operation to the judgments of what are ordinarily known as
courts, but extends to all bodies upon which judicial powers had been conferred.27

The only exceptions to the rule on the immutability of final judgments are (1) the correction of clerical
errors, (2) the so-called nunc pro tunc entries which cause no prejudice to any party, and (3) void
judgments.28 Respondent-movants, therefore, question the validity of the Court's Third Division's rulings and
postulate that a deliberation of the case by the Court en banc is warranted under Sec. 4(2), Article VIII, of
the 1987 Constitution, which reads:
SECTION 4. x x x x

(2) All cases involving the constitutionality of a treaty, international or executive agreement, or law, which
shall be heard by the Supreme Court en banc, and all other cases which under the Rules of Court
are required to be heard en banc, including those involving the constitutionality, application,
or operation of presidential decrees, proclamations, orders, instructions, ordinances, and other
regulations, shall be decided with the concurrence of a majority of the Members who actually took part in
the deliberations on the issues in the case and voted thereon, (emphasis added)

In support of their contention, respondent-movants cite the 1953 case of Ykalina v. Oricio, which held that a
presidential order may either be in a written memorandum or merely verbal.29 They then argue that the
issuance of Supplemental Notice No. 5, effectively cancelling the Swiss Challenge of petitioner's duly
accepted suo moto proposal, was pursuant to a verbal presidential order or instruction. And pursuant to the
constitutional provision, the challenge against this presidential directive, so respondent-movants insist, is
within the jurisdiction of Court en banc, not with its divisions.30

We disagree.

Respondent-movants' interpretation of the antiquated 1953 doctrine in Ykalina is highly distorted. In the
said case, the Court, finding for respondent Ananias Oricio (Oricio), sustained his appointment in spite of
having been merely verbally made. As held:

While the appointment of an officer is usually evidenced by a Commission, as a general rule it is not
essential to the validity of an appointment that a commission issue, and an appointment may be made
by an oral announcement of his determination by the appointing power.31 (emphasis added, citation
omitted)

Based on the Court's reasoning, the presidential order that "may either be in a written memorandum or
merely verbal " adverted to in Ykalina should therefore be understood as limited specifically to those
pertaining to appointments. Current jurisprudence, however, no longer recognizes the validity of oral
appointments and, in fact, requires the transmission and receipt of the necessary appointment papers for
their completion.32

To further distinguish Ykalina with the extant case, it was observed in the former that Oricio's verbal
appointment was established in evidence by a communication duly signed by the then Acting Executive
Secretary "by order of the President."33 Applied in modern day scenarios, the limited application of the
Ykalina doctrine should only govern those that were similarly verbally given by the president but were,
nevertheless, attested to by the Executive Secretary. This is in hew with Section 27 (10) of Book III, Title
III, Chapter 9-B of Executive Order No. 292 (EO 292),34 otherwise known as the Administrative Code of
1987, which empowers the Executive Secretary to attest executive orders and other presidential issuances
"by authority of the President." These "executive orders and presidential issuances," in turn, relate to the
enumeration under Book III, Title I, Chapter 2 of EO 292.35

Here, it is well to recall that the President did not issue any said executive order or presidential issuance in
intimating to the BCDA that he wishes for the competitive challenge to be cancelled. There was no document
offered that was signed by either the Chief Executive or the Executive Secretary, for the President, to that
effect. The situation, therefore, does not involve a presidential order or instruction within the contemplation
of Sec. 4(2), Article VIII of the Constitution, and, consequently, does not fall within the jurisdiction of the
Court en banc. Given the glaring differences in context, the doctrine in Ykalina cannot find application
herein, and cannot operate to divest the Court's division of its jurisdiction over the instant case.

Anent the joint motion for intervention36 filed by the DND and AFP, both agencies claimed therein that they
are the statutory beneficiaries of the proceeds from the conversion, development, and disposal of the camps
transferred to BCDA, which include the subject property. These expected proceeds that would redound to
their benefit are to be applied in funding the AFP Modernization Program as per Republic Act No. (RA)
7227,37 as amended by RA 10349.38 As such, so the applicants claim, they have legal and financial interests
and stakes in the outcome of the subject matter, and should, therefore, be allowed to intervene.

The argument does not hold merit.

Intervention is not a matter of absolute right but may be permitted by the Court when the applicant shows
facts which satisfy the requirements of the statute authorizing intervention."39 Under the Rules of
Court,40 what qualifies a person to intervene is his possession of a legal interest in the case - be it in the
subject matter of litigation itself, in the success of the parties, or in the resultant distribution of property
in custodia legis. The Court has further expounded on this concept of legal interest and set the parameters
for granting intervention as follows:41

xxx As regards the legal interest as qualifying factor, this Court has ruled that such interest must be of a
direct and immediate character so that the intervenor will either gain or lose by the direct legal operation of
the judgment. The interest must be actual and material, a concern which is more than mere curiosity,
or academic or sentimental desire; it must not be indirect and contingent, indirect and remote,
conjectural, consequential or collateral. However, notwithstanding the presence of a legal interest,
permission to intervene is subject to the sound discretion of the court, the exercise of which is limited by
considering "whether or not the intervention will unduly delay or prejudice the adjudication of the rights of
the original parties and whether or not the intervenor's rights may be fully protected in a separate
proceeding, (emphasis added) ChanRobles Vi rtua lawlib rary

In the case at bar, the DND and AFP moved for intervention on the ground that they are the beneficiaries of
the proceeds from the project to be undertaken by the BCDA. Obviously, this "right to the proceeds" is far
from actual as it veritably rests on the success of the bidding process, such that there will be no proceeds
that will accrue to their benefit to speak of if the project does not push through. All the applicants have
then, at best, is an inchoate right to the proceeds of the development of the property in litigation. Said
inchoate right, contradistinguished with vested rights that have become fixed and established, are still
expectant and contingent and, thus, open to doubt or controversy.42 Consequently, the said right does not
constitute sufficient legal interest that would qualify the DND and AFP, in this case, to intervene. And in any
event, regardless of the presence or absence of sufficient legal interest, the Comment in Intervention43 filed
does not contain any new issue that has not yet been resolved by the Court in its Decision and Resolution.
Hence, there is no cogent reason to grant the motion for intervention and to admit DND and AFP's comment.

As a final note, the Rule of Law allows the citizenry to reasonably assume that future conduct will be in
observance of government regulations, and to conceivably expect that any deviation therefrom will not be
countenanced.44 The Judiciary, therefore, undertakes to strengthen the Rule of Law by embedding a sense
of predictability in the jurisprudence it builds.

To allow the government to trample on the very rules it itself issued and to renege on its contractual and
legal obligations by invoking the all too familiar mantra of public interest, at any time it pleases, will only
result in uncertainty in the application of laws, a trait inimical to the Rule of Law. The Court, therefore, steps
in to send a strong signal that the government will be honorable in its dealings and that it can be trusted in
the partnerships it forges with the private sector. In holding respondent-movants accountable for the
representations they made during the long drawn-out negotiation process and during the times the
competitive challenge repeatedly encountered roadblocks in the form of constant delays and
postponements, the Court endeavors to concretize into a norm the government's strict adherence to its
statutory enactments, and its fulfilment in good faith of the commitments it made and of the covenants it
entered into. By granting SMLI's petition, We ruled that this is the conduct the public should reasonably
expect of the government. This is what strengthening the Rule of Law exacts.

Nevertheless, We underscore Our finding that "the government is not without protection for it is not
precluded from availing of safeguards and remedies it is entitled to after soliciting comparative
proposals, as provided under the TOR and the NEDA JV Guidelines".45 Indeed, there are sufficient
safeguards installed in the guidelines to ensure that the government will not be in the losing end of the
agreement; enough, in fact, to avoid the dreaded "unwarranted, irreparable injury" that it will allegedly
sustain. If only respondent-movants devoted sufficient time in perusing and reviewing the NEDA JV
guidelines, they would have identified the remedies BCDA, and ultimately the Philippine government, is
entitled to that would have dispelled any apprehension towards conducting the competitive challenge, and
any fear of the government ending up with a low price for the lot.

WHEREFORE, in view of the foregoing, the instant Motion for Leave to file Second Motion for
Reconsideration and to Admit the Attached Second Motion for Reconsideration (With Motion for the Court en
banc to Take Cognizance of this Case and/to Set the Case for Oral Argument Before the Court en banc), filed
by the respondent-movants Bases Conversion Development Authority and Arnel Paciano D. Casanova, is
hereby DENIED for lack of merit. Likewise, the Motion for Leave to File Comment-in-Intervention and to
Admit Attached Comment-in-Intervention, jointly filed by the Department of National Defense and the
Armed Forces of the Philippines, is hereby DENIED.
No further pleadings, motions, letters, or other communications shall be entertained in this case.

SO ORDERED. chanroblesvi rtua llawl

G.R. No. 161390 April 16, 2008

RAUL H. SESBREÑO, petitioner,

vs.
HON. COURT OF APPEALS, PROVINCE OF CEBU, GOV. EDUARDO R. GULLAS, THE
PROVINCIAL TREASURER, THE PROVINCIAL AUDITOR, THE PROVINCIAL ENGINEER
PATROCINIO BACAY (sued both in their official and personal capacities), respondents.

DECISION

NACHURA, J.:

For review is the Decision1 of the Court of Appeals (CA) dated July 23, 2003 and its
Resolution2 dated January 12, 2004 in CA-G.R. CV No. 43287. The assailed decision reversed the
decision3 of the Regional Trial Court (RTC), Branch 6, Cebu City in Civil Case R-19022 insofar as
the RTC held the Province of Cebu liable for damages to petitioner Raul H. Sesbreño. The assailed
resolution denied petitioner’s motion for reconsideration.

On January 26, 1970, Mrs. Rosario Sen and other camineros4 hired the petitioner to prosecute Civil
Cases Nos. R-109335 and R-11214,6 evidenced by an Agreement,7 the terms of which read as
follows:

AGREEMENT

WE, the undersigned, hereby agree to pay Atty. Raul H. Sesbreño, thirty (30%) percent of
whatever back salaries, damages, etc. that we may recover in the mandamus and other
cases that we are filing or have filed against the Province of Cebu, the Provincial Governor,
etc., whether or not the said cases will be amicably settled or decided by the courts by final
judgment. We shall take care of all expenses in connection with the said cases.8

During the pendency of the aforesaid cases or on April 17, 1979, petitioner registered his
charging/retaining lien based on the Agreement.9

The camineros obtained favorable judgment when the Court of First Instance (now RTC) of Cebu
ordered that they be reinstated to their original positions with back salaries, together with all
privileges and salary adjustments or increases.10 Aggrieved, the Commissioner of Public Highways
and the District Engineer filed certiorari cases before this Court where the petitioner willingly
rendered further legal assistance and represented the camineros.

When respondent Eduardo R. Gullas (Gov. Gullas) assumed the position of governor of Cebu, he
proposed the compromise settlement of all mandamus cases then pending against the province
which included Civil Cases Nos. R-10933 and R-11214 handled by the petitioner.
On April 21, 1979, the camineros, represented by the petitioner, and the province of Cebu, through
then Gov. Gullas, forged a Compromise Agreement,11 with the following terms and conditions:

1. The respondent Province of Cebu represented in this act by Gov. Eduardo R. Gullas, duly
authorized by proper resolution of the Sanguniang Panlalawigan, hereby agrees to
immediately appropriate and pay full backwages and salaries as awarded by the trial court in
its decision to all the private respondents-employees from and after July 1, 1968, the date of
their termination, up to the date of the approval of the herein Compromise Agreement by the
Honorable Supreme Court, except for those who are qualified for compulsory retirement
whose back salaries and wages shall be limited up to the effective date of their retirement.

xxxx

9. That the amounts payable to the employees concerned represented by Atty. Raul H.
Sesbreño is subject to said lawyer’s charging and retaining liens as registered in the trial
court and in the Honorable Court of Appeals.

xxxx

11. That upon request of the employees concerned, most of whom are in dire actual financial
straits, the Province of Cebu is agreeable to paying an advance of P5,000.00 to each
employee payable through their counsel, Atty. Raul H. Sesbreño, deductible from the total
amount that each will receive from the Province of Cebu, effective upon confirmation by the
Honorable Solicitor General, the Supreme Court and the Philippine National Bank where the
JJ (now infrastructure funds) are now in deposit under trust.12

Apparently, the camineros waived their right to reinstatement embodied in the CFI decision and the
province agreed that it immediately pay them their back salaries and other claims. This Court
adopted said compromise agreement in our decision13 dated December 18, 1979.14

In view of the finality of the above decision, the camineros, through their new counsel (who
substituted for the petitioner), moved for its execution. The court then ordered the issuance of a
partial writ of execution directing the payment of only 45% of the amount due them based on the
computation of the provincial engineering office as audited by the authority concerned.15 The court
did not release the remaining 55%, thus holding in abeyance the payment of the lawyer’s fees
pending the determination of the final amount of such fees.16 However, instead of complying with the
court order directing partial payment, the province of Cebu directly paid the camineros the full
amount of their adjudicated claims.17

Thus, petitioner filed the complaint for Damages (Thru Breach of Contract) and Attorney’s
Fees against the Province of Cebu, the provincial governor, treasurer, auditor, and engineer in their
official and personal capacities, as well as against his former clients (the camineros).18

Petitioner anchored his claim on the provision of the Civil Code, specifically Article 1919 thereof. He
alleged that by directly paying the camineros the amounts due them, the respondents induced
the camineros to violate their written contract for attorney’s fees.20 He likewise claimed that they
violated the compromise agreement approved by the Court by computing the camineros’ money
claims based on the provincial instead of the national wage rate which, consequently, yielded a
lower amount.21 Petitioner went on to say that although he was not a party to the above contracts, by
virtue of the registration of his charging lien, he was a quasi-party and thus, had legal standing to
institute the case below.22
On August 23, 1982, petitioner moved to dismiss the case against the camineros after he had
entered into an agreement with them and settled their differences.23 The case, however, proceeded
against the respondents.

On October 18, 1992, the RTC rendered a decision in favor of the petitioner and against the
respondent province of Cebu, the pertinent portion of which reads:

Wherefore, for all the foregoing, judgment is rendered, ordering the defendant Province of
Cebu to pay the plaintiff the following sums:

(a) P669,336.51 in actual damages; with interest of 12% per annum from date of demand
until fully paid;

(b) P20,000.00 in moral damages;

(c) P5,000.00 in litigation expenses; and

(d) To pay the costs.24

While maintaining the validity of the compromise agreement, the trial court found that the petitioner’s
money claims should have been computed based on the national and not the provincial rate of
wages paid the camineros. Accordingly, the court declared that the petitioner was prejudiced to the
extent of the difference between these two rates. The court further upheld the petitioner’s status as a
quasi-party considering that he had a registered charging lien. However, it did not give credence to
the petitioner’s claim that the respondent public officials induced the camineros to violate their
contract, and thus, absolved them from liability.

On appeal, the CA reversed the trial court’s decision and dismissed the complaint.25 The appellate
court concluded that petitioner failed to sufficiently establish his allegation that the respondents
induced the camineros to violate the agreement for attorney’s fees and the compromise agreement,
and that he suffered damage due to respondents’ act of directly paying the camineros the amounts
due them.26

Hence, the instant petition. In his Memorandum, petitioner raises the following issues:

1. RESPONDENT COURT OF APPEALS ERRED IN NOT AFFIRMING THE TRIAL COURT

DECISION DUE TO LONG DELAY IN DECIDING CA-G.R. CV NO. 43287.

2. RESPONDENT COURT OF APPEALS ERRED IN NOT DISMISSING THE APPEAL IN

CA-G.R. CV NO. 43287 FOR FAILURE TO PROSECUTE AND DUE TO THE FATALLY-
DEFECTIVE APPELLANT’S BRIEF.

3. RESPONDENT COURT OF APPEALS ERRED IN REVERSING THE TRIAL COURT

DECISION BY DECLARING THAT THE TRIAL COURT SHOULD NOT FIX THE
ATTORNEY’S FEES OF PETITIONER DESPITE THE FACT THAT THE TRIAL COURT
DECISION IS CLEAR THAT WHAT WAS ADJUDGED WAS THE DECLARATION THAT
THERE WAS BREACH OF THE COMPROMISE CONTRACT AND DAMAGES ARE TO BE
AWARDED THE PETITIONER.

4. RESPONDENT COURT OF APPEALS ERRED IN NOT DECLARING RESPONDENTS

GULLAS, RESENTES, SANCHEZ AND BACAY AS PERSONALLY LIABLE AND THAT
 THEIR PERSONAL LIABILITY IS SOLIDARY WITH THAT OF RESPONDENT PROVINCE
OF CEBU.

5. RESPONDENT COURT OF APPEALS ERRED IN NOT DECLARING THAT PRIVATE

RESPONDENTS ARE SOLIDARILY LIABLE TO PAY TO PETITIONER ACTUAL OR
COMPENSATORY, MORAL, EXEMPLARY, NOMINAL, TEMPERATE DAMAGES,
LITIGATION EXPENSES AND LOSS OF EARNINGS AND INTERESTS.27

The petition is bereft of merit.

Petitioner insists that the CA should have affirmed the trial court’s decision in view of the delay in
resolving the case, and should have denied the appeal because of the formal defects in the
appellant’s brief.28 Petitioner cites the cases of Malacora v. Court of Appeals29 and Flora v.
Pajarillaga30 where this Court held that an appealed case which had been pending beyond the time
fixed by the Constitution should be "deemed affirmed."

We cannot apply the cited cases to the one at bench because they were decided on the basis of
Section 11 (2), Article X of the 1973 Constitution, which reads:

SEC. 11. x x x

(2) With respect to the Supreme Court and other collegiate appellate courts, when the
applicable maximum period shall have lapsed without the rendition of the corresponding
decision or resolution because the necessary vote cannot be had, the judgment, order, or
resolution appealed from shall be deemed affirmed x x x.

That provision is not found in the present Constitution. The court, under the 1987 Constitution, is
now mandated to decide or resolve the case or matter submitted to it for determination within
specified periods.31 Even when there is delay and no decision or resolution is made within the
prescribed period, there is no automatic affirmance of the appealed decision. The appellate court,
therefore, cannot be faulted in not affirming the RTC’s decision. While we do not tolerate delay in the
disposition of cases, we cannot dismiss appealed cases solely because they had been pending in
court for a long period, especially when the appeal is highly meritorious as in the present case.

Likewise, we cannot agree with the petitioner that the appealed case be dismissed on account of the
formal defects in respondent’s appellant’s brief filed before the CA. The requirements laid down by
the Rules of Court on the contents of the brief are intended to aid the appellate court in arriving at a
just and proper conclusion of the case.32 However, despite its deficiencies, respondent’s appellant’s
brief is sufficient in form and substance as to apprise the appellate court of the essential facts and
nature of the case, as well as the issues raised and the laws necessary for the disposition of the
same.33 Thus, we sustain the CA’s decision to rule on the merits of the appeal instead of dismissing
it on mere technicality.

Now, on the main issue of whether or not respondents are liable for damages for breach of contract.

Petitioner clarifies that he instituted the instant case for breach of the compromise agreement and
not for violation of the agreement for attorney’s fees as mistakenly concluded by the appellate court.
He also cites Calalang v. De Borja34 in support of his right to collect the amounts due him against the
judgment debtor (the respondents).35 Lastly, petitioner argues that the respondent public officials
acted beyond the scope of their authority when they directly paid the camineros their money claims
and failed to withhold the petitioner’s fees. There is, according to the petitioner, a showing of bad
faith on the part of the province and the public officials concerned.
After a careful scrutiny of the record of the case, we find no compelling reason to disturb the
appellate court’s conclusion. We would like to stress at this point that the compromise agreement
had been validly entered into by the respondents and the camineros and the same became the basis
of the judgment rendered by this Court. Its validity, therefore, had been laid to rest as early as 1979
when the Court promulgated its decision in Commissioner of Public Highways v. Burgos.36 In fact,
the judgment had already been fully satisfied by the respondents. It was precisely this full
satisfaction of judgment that gave rise to the instant controversy, based primarily on the petitioner’s
claim that he was prejudiced because of the following: 1) the wrong computation in the camineros’
money claims by using the provincial and not the national wage rate; and 2) the mode of satisfying
the judgment through direct payment which impaired his registered charging lien.

Petitioner’s claim for attorney’s fees was evidenced by an agreement for attorney’s fees voluntarily
executed by the camineros where the latter agreed to pay the former "thirty (30%) percent
of whatever back salaries, damages, etc. that they might recover in the mandamus and other cases
that they were filing or have filed." Clearly, no fixed amount was specifically provided for in their
contract nor was a specified rate agreed upon on how the money claims were to be computed. The
use of the word "whatever" shows that the basis for the computation would be the amount that the
court would award in favor of the camineros. Considering that the parties agreed to a compromise,
the payment would have to be based on the amount agreed upon by them in the compromise
agreement approved by the court. And since the compromise agreement had assumed finality, this
Court can no longer delve into its substance, especially at this time when the judgment had already
been fully satisfied. We cannot allow the petitioner to question anew the compromise agreement on
the pretext that he suffered damage. As long as he was given the agreed percentage of the amount
received by the camineros, then, the agreement is deemed complied with, and petitioner cannot
claim to have suffered damage.

Petitioner likewise claims that he was prejudiced by respondents’ act in directly paying
the camineros the amounts due them, as it rendered inutile the charging lien duly registered for his
protection.

To insure payment of his professional fees and reimbursement of his lawful disbursements in
keeping with his dignity as an officer of the court, the law creates in favor of a lawyer a lien, not only
upon the funds, documents and papers of his client which have lawfully come into his possession
until what is due him has been paid, but also a lien upon all judgments for the payment of money
and executions issued pursuant to such judgments rendered in the case wherein his services have
been retained by the client.37 Section 37, Rule 138 of the Rules of Court specifically provides:

Section 37. Attorney’s liens. – An attorney shall have a lien upon the funds, documents and
papers of his client, which have lawfully come into his possession and may retain the same
until his lawful fees and disbursements have been paid, and may apply such funds to the
satisfaction thereof. He shall also have a lien to the same extent upon all judgments for the
payment of money, and executions issued in pursuance of such judgments, which he has
secured in a litigation of his client, from and after the time when he shall have caused a
statement of his claim of such lien to be entered upon the records of the court rendering such
judgment, or issuing such execution, and shall have caused written notice thereof to be
delivered to his client and to the adverse party; and he shall have the same right and power
over such judgments and executions as his client would have to enforce his lien and secure
the payment of his just fees and disbursements.

A charging lien is an equitable right to have the fees and costs due to the lawyer for services in a suit
secured to him out of the judgment or recovery in that particular suit. It is based on the natural equity
that the plaintiff should not be allowed to appropriate the whole of a judgment in his favor without
paying thereout for the services of his attorney in obtaining such judgment.38

In this case, the existence of petitioner’s charging lien is undisputed since it was properly registered
in the records. The parties even acknowledged its existence in their compromise agreement.
However, a problem arose when the respondents directly paid in full the camineros’ money claims
and did not withhold that portion which corresponds to petitioner’s fees.

When the judgment debt was fully satisfied, petitioner could have enforced his lien either against his
clients (the camineros herein) or against the judgment debtor (the respondents herein). The clients,
upon receiving satisfaction of their claims without paying their lawyer, should have held the proceeds
in trust for him to the extent of the amount of his recorded lien, because after the charging lien had
attached, the attorney is, to the extent of said lien, regarded as an equitable assignee of the
judgment or funds produced by his efforts.39 The judgment debtors may likewise be held responsible
for their failure to withhold from the camineros the amount of attorney’s fees due the petitioner.

In the instant case, the petitioner rightly commenced an action against both his clients and the
judgment debtors. However, at the instance of the petitioner himself, the complaint against his
clients was withdrawn on the ground that he had settled his differences with them. He maintained
the case against respondents because, according to him, the computation of the camineros’ money
claims should have been based on the national and not the provincial wage rate. Thus, petitioner
insists that the respondents should be made liable for the difference.

While the respondents may have impaired the petitioner’s charging lien by satisfying the judgment
without regard for the lawyer’s right to attorney’s fees, we cannot apply the doctrine enunciated
in Calalang v. Judge de Borja,40 because of the peculiar circumstances obtaining in this case. In
Calalang, this Court stressed that the judgment debtor may be held responsible for his failure to
withhold the amount of attorney’s fees in accordance with the duly registered charging
lien.41 However, there is a disparity between the two cases, because, in this case, the petitioner had
withdrawn his complaint against the camineros with whom he had a contract for legal services. The
withdrawal was premised on a settlement, which indicates that his former clients already paid their
obligations. This is bolstered by the certification of the clerk of court that his former clients had
deposited their passbooks to ensure payment of the agreed fees. Having been paid by his clients in
accordance with the agreement, his claim against the respondents, therefore, has no leg to stand
on.

Neither can the petitioner rely on Bacolod Murcia Milling Co., Inc. v. Henares, etc.42 where this court
declared that satisfaction of the judgment, in general, does not by itself bar or extinguish the
attorney’s liens, as the court may even vacate such satisfaction and enforce judgment for the
amount of the lien.43 However, the satisfaction of the judgment extinguishes the lien if there has been
a waiver, as shown either by the attorney’s conduct or by his passive omission.44 In the instant case,
petitioner’s act in withdrawing the case against the camineros and agreeing to settle their dispute
may be considered a waiver of his right to the lien. No rule will allow a lawyer to collect from his
client and then collect anew from the judgment debtor except, perhaps, on a claim for a bigger
amount which, as earlier discussed, is baseless.

Lawyering is not a moneymaking venture and lawyers are not merchants. Law advocacy is not
capital that yields profits. The returns it births are simple rewards for a job done or service rendered.
It is a calling that, unlike mercantile pursuits which enjoy a greater deal of freedom from
governmental interference, is impressed with a public interest, for which it is subject to state
regulation.45
Considering that petitioner’s claim of higher attorney’s fees is baseless and considering further that
he had settled his case as against his former clients, we cannot sustain his right to damages for
breach of contract against the respondents, even on the basis of Articles 119146 or 1311.47 Although
we sustain his status to institute the instant case, we cannot render a favorable judgment because
there was no breach of contract. Even if there was such a breach, he had waived his right to claim
against the respondents by accepting payment and/or absolving from liability those who were
primarily liable to him. Thus, no liability can be imputed to the province of Cebu or to the respondent
public officials, either in their personal or official capacities.

Lastly, we cannot ascribe bad faith to the respondents who directly paid the camineros the amounts
due them. The records do not show that when they did so, they induced the camineros to violate
their contract with the petitioner; nor do the records show that they paid their obligation in order to
cause prejudice to the petitioner. The attendant circumstances, in fact, show that
the camineros acknowledged their liability to the petitioner and they willingly fulfilled their obligation.
It would be contrary to human nature for the petitioner to have acceded to the withdrawal of the case
against them, without receiving the agreed attorney’s fees.

WHEREFORE, premises considered, the petition is hereby DENIED. The Decision of the Court of
Appeals dated July 23, 2003 and its Resolution dated January 12, 2004 in CA-G.R. CV No. 43287
are AFFIRMED.

SO ORDERED.

A. M. No. 00-8-05-SC November 28, 2001

RE: PROBLEM OF DELAYS IN CASES BEFORE THE SANDIGANBAYAN

RESOLUTION

PARDO, J.:

The Case

Submitted to the Court for consideration is a resolution of the Board of Governors, Integrated Bar of
the Philippines (hereafter, the IBP) recommending an inquiry into the causes of delays in the
resolution of incidents and motions and in the decision of cases pending before the Sandiganbayan.

The Antecedents

On July 31, 2000, the IBP, through its National President, Arthur D. Lim, transmitted to the Court a
Resolution1 addressing the problem of delays in cases pending before the Sandiganbayan
(hereafter, the Resolution).2 We quote the Resolution in full:3

"WHEREAS, Section 16, Article III of the Constitution guarantees that, "[a]ll persons shall
have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or
administrative bodies,"
 "WHEREAS, Canon 12 of the Code of Professional Responsibility for Lawyers mandates
that "[a] lawyer shall exert every effort and consider it his duty to assist in the speedy and
efficient administration of justice;"

"WHEREAS, it is the duty of the Integrated Bar of the Philippines to undertake measures to
assist in the speedy disposition of cases pending before the various courts and tribunals;

"WHEREAS, the Integrated Bar of the Philippines has received numerous complaints from
its members about serious delays in the decision of cases and in the resolution of motions
and other pending incidents before the different divisions of the Sandiganbayan;

"WHEREAS, Supreme Court Administrative Circular No. 10-94 requires all Regional Trial
Courts, Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts to
submit to the Supreme Court a bi-annual report indicating the title of the case, its date of
filing, the date of pre-trial in civil cases and arraignment in criminal cases, the date of initial
trial, the date of last hearing and the date that the case is submitted for decision, and to post,
in a conspicuous place within its premises, a monthly list of cases submitted for decision;

"WHEREAS, Supreme Court Administrative Circular No. 10-94 has not been made
applicable to the Sandiganbayan;

"WHEREAS, considering that the Sandiganbayan is also a trial court, the requirements
imposed upon trial courts by Supreme Court Administrative Circular No. 10-94 should also
be imposed upon the Sandiganbayan;

"NOW, THEREFORE, in view of the foregoing, the Board of Governors of the Integrated Bar
of the Philippines hereby resolves as follows:

"1. To recommend to the Supreme Court that Supreme Court Administrative Circular No. 10-
94 be made applicable to the Sandiganbayan in regard cases over which the Sandiganbayan
has original jurisdiction; and

"2. To recommend to the Supreme Court an inquiry into the causes of delay in the resolution
of incidents and motions and in the decision of cases before the Sandiganbayan for the
purpose of enacting measures intended at avoiding such delays.

"Done in Los Baños, Laguna, this 29th day of July, 2000."

On August 8, 2000, the Court required Sandiganbayan Presiding Justice Francis E. Garchitorena to
comment on the letter of the IBP and to submit a list of all Sandiganbayan cases pending decision,
or with motion for reconsideration pending resolution, indicating the dates they were deemed
submitted for decision or resolution.4

On September 27, 2000, complying with the order, Presiding Justice Francis E. Garchitorena
submitted a report5 (hereafter, the compliance) admitting a number of cases submitted for decision
and motion for reconsideration pending resolution before its divisions. We quote:

"Cases
W/ Motions For
Submitted
Reconsideration
"For Decision
"1st Division 341 None
 "2nd Division 5 None
"3rd Division 12 None
"4th Division 5 None
"5th Division 52 1
"Total 415" 6

Thus, the Sandiganbayan has a total of four hundred fifteen (415) cases for decision remaining
undecided long beyond the reglementary period to decide, with one case submitted as early as May
24, 1990,7 and motion for reconsideration which has remained unresolved over thirty days from
submission.8

On October 20, 2000, Sandiganbayan Presiding Justice Francis E. Garchitorena submitted a

"schedule of cases submitted for decision, the schedule indicating the number of detained prisoners,
of which there are (were) none."9

On October 26, 2000, the IBP submitted its reply to the compliance stating: First, that it was not in a
position to comment on the accuracy of the compliance; nonetheless, it showed that there was much
to be desired with regard to the expeditious disposition of cases, particularly in the Sandiganbayan's
First Division, where cases submitted for decision since 1990 remained unresolved. Second, the
compliance did not include pending motions, and it is a fact that motions not resolved over a long
period of time would suspend and delay the disposition of a case. Third, since the Sandiganbayan is
a trial court, it is required to submit the same reports required of Regional Trial Courts. Fourth, the
Constitution10states that, "all lower collegiate courts" must decide or resolve cases or matters before
it within twelve (12) months "from date of submission"; however, the Sandiganbayan, as a trial court,
is required to resolve and decide cases within a reduced period of three (3) months like regional trial
courts, or at the most, six (6) months from date of submission.11

On November 21, 2000, the Court resolved to direct then Court Administrator Alfredo L. Benipayo
(hereafter, the OCA) "to conduct a judicial audit of the Sandiganbayan, especially on the cases
subject of this administrative matter, and to submit a report thereon not later than 31 December
2000."12

On December 4, 2000, in a letter addressed to the Chief Justice, Presiding Justice Francis E.
Garchitorena admitted that the First Division of the Sandiganbayan13 has a backlog of cases; that
one case14 alone made the backlog of the First Division so large, involving 156 cases but the same
has been set for promulgation of decision on December 8, 2000, which would reduce the backlog by
at least fifty percent (50%).15

On January 26, 2001, the Court Administrator submitted a memorandum to the Court16 stating that
the causes of delay in the disposition of cases before the Sandiganbayan are:17

(1) Failure of the Office of the Special Prosecutor to submit reinvestigation report despite the
lapse of several years;

(2) Filing of numerous incidents such as Motion to Dismiss, Motion to Quash, Demurrer to
Evidence, etc. that remain unresolved for years;

(3) Suspension of proceedings because of a pending petition for certiorari and prohibition
with the Supreme Court;
 (4) Cases remain unacted upon or have no further settings despite the lapse of considerable
length of time; and

(5) Unloading of cases already submitted for decision even if the ponente is still in service.

We consider ex mero motu the Resolution of the Integrated Bar of the Philippines (IBP) as an
administrative complaint against Presiding Justice Francis E. Garchitorena for "serious delays in the
decision of cases and in the resolution of motions and other pending incidents before the different
divisions of the Sandiganbayan," amounting to incompetence, inefficiency, gross neglect of duty and
misconduct in office.

We find no need to conduct a formal investigation of the charges in view of the admission of Justice
Francis E. Garchitorena in his compliance of October 20, 2000, that there are indeed hundreds of
cases pending decision beyond the reglementary period of ninety (90) days from their submission. In
one case, he not only admitted the delay in deciding the case but took sole responsibility for such
inaction for more than ten (10) years that constrained this Court to grant mandamus to dismiss the
case against an accused to give substance and meaning to his constitutional right to speedy trial.18

The Issues

The issues presented are the following: (1) What is the reglementary period within which the
Sandiganbayan must decide/resolve cases falling within its jurisdiction? (2) Are there cases
submitted for decision remaining undecided by the Sandiganbayan or any of its divisions beyond the
afore-stated reglementary period? (3) Is Supreme Court Administrative Circular No. 1094 applicable
to the Sandiganbayan?19

The Court's Ruling

We resolve the issues presented in seriatim.

1. Period To Decide/Resolve Cases.-- There are two views. The first view is that from the time a
case is submitted for decision or resolution, the Sandiganbayan has twelve (12) months to decide or
resolve it.20 The second view is that as a court with trial function, the Sandiganbayan has three (3)
months to decide the case from the date of submission for decision.21

Article VIII, Section 15 (1) and (2), of the 1987 Constitution provides:

"Sec. 15. (1) All cases or matters filed after the effectivity of this Constitution must be
decided or resolved within twenty-four months from date of submission to the Supreme
Court, and, unless reduced by the Supreme Court, twelve months for all lower collegiate
courts, and three months for all other lower courts.

"(2) A case or matter shall be deemed submitted for decision or resolution upon the filing of
the last pleading, brief or memorandum required by the Rules of Court or by the court
itself."22

The above provision does not apply to the Sandiganbayan. The provision refers to regular courts of
lower collegiate level that in the present hierarchy applies only to the Court of Appeals.23

The Sandiganbayan is a special court of the same level as the Court of Appeals and possessing all
the inherent powers of a court of justice,24 with functions of a trial court.25
Thus, the Sandiganbayan is not a regular court but a special one.26 The Sandiganbayan was
originally empowered to promulgate its own rules of procedure.27 However, on March 30, 1995,
Congress repealed the Sandiganbayan's power to promulgate its own rules of procedure28 and
instead prescribed that the Rules of Court promulgated by the Supreme Court shall apply to all
cases and proceedings filed with the Sandiganbayan.29

"Special courts are judicial tribunals exercising limited jurisdiction over particular or specialized
categories of actions. They are the Court of Tax Appeals, the Sandiganbayan, and the Shari'a
Courts."30

Under Article VIII, Section 5 (5) of the Constitution "Rules of procedure of special courts and quasi-
judicial bodies shall remain effective unless disapproved by the Supreme Court."

In his report, the Court Administrator would distinguish between cases which the Sandiganbayan
has cognizance of in its original jurisdiction,31 and cases which fall within the appellate jurisdiction of
the Sandiganbayan.32 The Court Administrator posits that since in the first class of cases, the
Sandiganbayan acts more as a trial court, then for that classification of cases, the three (3) month
reglementary period applies. For the second class of cases, the Sandiganbayan has the twelve-
month reglementary period for collegiate courts.33 We do not agree.

The law creating the Sandiganbayan, P.D. No. 160634 is clear on this issue.35 It provides:

"Sec. 6. Maximum period for termination of cases – As far as practicable, the trial of cases
before the Sandiganbayan once commenced shall be continuous until terminated and the
judgment shall be rendered within three (3) months from the date the case was submitted for
decision."

On September 18, 1984, the Sandiganbayan promulgated its own rules,36 thus:37

"Sec. 3 Maximum Period to Decide Cases – The judgment or final order of a division of the
Sandiganbayan shall be rendered within three (3) months from the date the case was
submitted for decision (italics ours)."

Given the clarity of the rule that does not distinguish, we hold that the three (3) month period, not the
twelve (12) month period, to decide cases applies to the Sandiganbayan. Furthermore, the
Sandiganbayan presently sitting in five (5) divisions,38 functions as a trial court. The term "trial" is
used in its broad sense, meaning, it allows introduction of evidence by the parties in the cases
before it.39 The Sandiganbayan, in original cases within its jurisdiction, conducts trials, has the
discretion to weigh the evidence of the parties, admit the evidence it regards as credible and reject
that which they consider perjurious or fabricated.40

Compliance with its Own Rules

In Department of Agrarian Reform Adjudication Board (DARAB) v. Court of Appeals,41 the Court
faulted the DARAB for violating its own rules of procedure. We reasoned that the DARAB does not
have unfettered discretion to suspend its own rules. We stated that the DARAB "should have set the
example of observance of orderly procedure." Otherwise, it would render its own Revised Rules of
Procedure uncertain and whose permanence would be dependent upon the instability of its own
whims and caprices.
Similarly, in Cabagnot v. Comelec,42 this Court held that the Commission on Elections ought to be
the first one to observe its own Rules. Its departure from its own rules constitutes "arrogance of
power" tantamount to abuse. Such inconsistency denigrates public trust in its objectivity and
dependability. The Court reminded the Comelec to be more judicious in its actions and decisions
and avoid imprudent volte-face moves that undermine the public's faith and confidence in it.

The ratio decidendi in the afore-cited cases applies mutatis mutandis to the Sandiganbayan. The
Sandiganbayan ought to be the first to observe its own rules. It cannot suspend its rules, or except a
case from its operation.

2. Undecided Cases Beyond the Reglementary Period.-- We find that the Sandiganbayan has
several cases undecided beyond the reglementary period set by the statutes and its own rules,
some as long as more than ten (10) years ago.

According to the compliance submitted by the Sandiganbayan, three hundred and forty one (341)
cases were submitted for decision but were undecided as of September 15, 2000. A number of the
cases were submitted for decision as far back as more than ten (10) years ago. As of September 15,
2000, the following cases43 had not been decided:44

First Division
Date Submitted for
Case Title Case No.
Decision
(1) People v. Pañares 12127 May 24, 1990
(2) People v. Gabriel Duero 11999 December 11, 1990
(3) People v. Rhiza Monterozo 133533 December 14, 1990
(4) People v. Zenon R. Perez 13353 January 7, 1991
(5) People v. Bernardo B. Dayao, Jr. 12305-12306 February 7, 1991
(6) People v. Melquiades Ribo 13521 May 7, 1991
(7) People v. Carlos Benitez 12102 June 19, 1991
(8) People v. Salvador P. Nopre, et. al. 11156-11160 August 9, 1991
(9) People v. Delfina A. Letegio 12289 August 28, 1991
(10) People v. Rodolfo A. Lasquite 13618 August 28, 1991
(11) People v. Potenciana Evangelista 13679-13680 September 3, 1991
(12) People v. Ramon N. Guico, Jr. et. 16516 December 2, 1991
al
(13) People v. Ruperto N. Solares 16239 January 10, 1992
(14) People v. Socorro Alto 13708 March 9, 1992
(15) People v. Tomas Baguio 130151 March 11, 1992
(16) People v. Felipa D. de Veyra 13672 April 13, 1992
(17) People v. Felicidad Tabang 12139 July 23, 1992
(18) People v. Jose S. Buguiña 14227 September 9, 1992
(19) People v. Eleno T. Regidor, et al. 13689-13695 January 6, 1993
(20) People v. Serafin Unilongo 14411 February 2, 1993
(21) People v. Manuel Parale, et al. 15168 June 21, 1993
(22) People v. Robert P. Wa-acon 14375 June 21, 1993
(23) People v. Linda J. Necessito 13668 July 13, 1993
(24) People v. Simon Flores 16946 August 4, 1993
(25) People v. Alejandro F. Buccat 14986 August 31, 1993
(26) People v. Irma Collera Monge 15301 March 9, 1994
(27) People v. Melencio F. Ilajas 9977 May 10, 1994
(28) People v. Buenaventura Q. 13747-13748 August 19, 1994
Sindac, et al.
(29) People v. Jesus A. Bravo 17514 August 24, 1994
(30) People v. Raul S. Tello 15006 November 15, 1994
(31) People v. Celso N. Jacinto 14975 January 10, 1995
(32) People v. Mayor Antonio Abad 17670 January 24, 1995
Santos, et al.
(33) People v. Lamberto R. Te 20588 February 14, 1995
(34) People v. Ale Francisco 21020 July 18, 1995
(35) People v. Dir. Felix R. Gonzales, 13563 July 25, 1995
et al.
(36) People v. Mayor Adelina Gabatan, 14324 January 3, 1996
et al.
(37) People v. Victoria Posadas-Adona 17202 January 4, 1996
(38) People v. Roberto Estanislao 16854 January 22, 1996
Chang, et al.
(39) People v. Godofredo Yambao, et 16927-16928 March 13, 1996
al.
(40) People v. Honesto G. Encina 13171 April 26, 1996
(41) People v. Pablito Rodriguez 13971 May 10, 1996
(42) People v. Leandro A. Suller 17759 June 28, 1996
(43) People v. Trinidad M. Valdez 16695 August 26, 1996
(44) People v. Vivencio B. Patagoc 19651 January 27, 1997
(45) People v. Engr. Antonio B. 14195 March 31, 1997
Laguador
(46) People v. Paterno C. Belciña, Jr. 16583-16585 March 31, 1997
(47) People v. SPO3 Serafin V. Reyes 21608 March 31, 1997
(48) People v. Mayor Samuel F. 22195-22196 March 31, 1997
Bueser, et al.
(49) People v. Romeo C. Monteclaro 14223 May 6, 1997
(50) People v. Rodolfo E. Aguinaldo 20948-20949 October 17, 1997
(51) People v. Aniceto M. Sobrepeña 23324 October 27, 1997
(52) People v. Marietta T. Caugma, et 17001 November 26, 1997
al.
(53) People v. Mayor Meliton 19708 February 23, 1998
Geronimo, et al.
(54) People v. Fernando Miguel, et al. 17600 April 7, 1998
(55) People v. Rogelio A. Aniversario 17601 April 7, 1998
(56) People v. Corazon Gammad 9812-9967 May 8, 1998
Leaño
(57) People v. Teresita S. Lazaro 17901 June 8, 1998
(58) People v. Brig. Gen. Raymundo 20688 October 19, 1998
Jarque, et al.
(59) People v. Pros. Filotea Estorninos 23509 October 19, 1998
(60) People v. Orlando Mina 19534-19545 October 20, 1998
(61) People v. Vice Gov. Milagros A. 23042 October 20, 1998
Balgos
(62) People v. Ceferino Paredes, Jr., et 18857 November 17, 1998
al.
(63) People v. Brig. Gen. Rayundo 18696 January 15, 1999
Jarque, et al.
(64) People v. Mayor Agustin R. 23336 January 15, 1999
Escaño, Jr.
(65) People v. Mayor Edgar V. Teves, 23374 January 15, 1999
et al.
(66) People v. C/Supt. Alfonso T. 22832 January 29, 1999
Clemente, et al.
(67) People v. Dominica Santos 19059-19063 February 18, 1999
(68) People v. Edith G. Tico 23273 April 20, 1999
(69) People v. Sec. Hilarion J. Ramiro, 23511 August 6, 1999
et al.
(70) People v. Timoteo A. Garcia, et al. 24042-24098 August 6, 1999
(71) People v. Mayor Jeceju L. Manaay 24402 August 6, 1999
(72) People v. Dir. Rosalinda Majarais, 24355 August 18, 1999
et al.
(73) People v. Victor S. Limlingan 24281 August 13, 1999
(74) People v. Nestor S. Castillo, et al. 24631 August 31, 1999
(75) People v. Apolinar Candelaria 22145 September 6, 1999
(76) People v. Bernardo Billote Resoso 19773-19779 October 11, 1999
(77) People v. Atty. Alfredo Fordan 24433-24434 October 11, 1999
Rellora, et al.
(78) People v. Faustino Balacuit 98 December 22, 1999
(79) People v. Mayor Bernardino 23418-23423 January 6, 2000
Alcaria, Jr., et al.
(80) People v. Joel R. Lachica, et al. 24319-24329 January 6, 2000
(81) People v. Jose Micabalo, et al. 24531-24534 April 27, 2000
(82) People v. Mayor Eduardo Alarilla 23069 May 29, 2000
(83) People v. Pros. Nilo M. Sarsaba, 23323 May 29, 2000
et al.
(84) People v. Philip G. Zamora 24150 May 29, 2000
Second Division*
Date Submitted for
Case Title Case No.
Decision
(1) People v. Marcelino Cordova, et al. 18435 August 11, 2000
(2) People v. Benjamin T. Damian 22858 August 11, 2000
(3)People v. Lino L. Labis, et al. 22398 July 18, 2000
(4)People v. Alfredo Sarmiento, et al. 24407-24408 August 11, 2000
Third Division**
Date Submitted for
Case Title Case No.
Decision
(1) People v. Sergia Zoleta A/R # 016 November 16, 1999
(2) People v. Manuel Solon Y A/R # 029 December 9, 1999
Tenchaves
(3) People v. Eliseo L. Ruiz 13861-13863 April 6, 2000
(4) People v. Manuel R. Galvez, et al. 13889 September 30,
1999
(5) People v. Tolentino Mendoza, et al. 16756 August 28, 1999
(6) People v. Rodrigo Villas 19563 April 6, 2000
(7) People v. Ernesto Vargas 19574 April 6, 2000
(8) People v. Ernesto, Vargas, et al. 20053 April 6, 2000
(9) People v. Marcelo T. Abrenica, et 23522 July 6, 2000
al.
(10) People v. Florencio Garay, et al. 25657 May 5, 2000
Fourth Division***
Date Submitted for
Case Title Case No.
Decision
(1) People v. Jaime Alos, et al. 17664 August 31, 1999
(2) People v. Antonio R. De Vera 23366 November 26, 1999
(3) People v. Aurora Mantele 24841-42 May 9, 2000
(4) People v. Olegario Clarin, Jr., et al. 25198 July 12, 2000
Fifth Division****
Date Submitted for
Case Title Case No.
Decision
(1) People v. Nestor A. Pablo 13344 January 16, 1998
(2) People v. Hernand D. Dabalus, et 14397 January 13, 1999
al.
(3) People v. Eduardo Pilapil 16672 March 23, 2000
 (4) People v. P/Sgt. Nazario 17030 April 16, 1998
Marifosque
(5) People v. Ignacio B. Bueno 17055 September 12,
1995
(6) People v. Corazon G. Garlit 17072 March 31, 1997
(7) People v. Mayor Rufo Pabelonia, et 17538 November 14, 1995
al.
(8) People v. Enrique B. Lenon, et al. 17617 March 13, 1996
(9) People v. Constancio Bonite, et al. 17618-17619 May 1, 1995
(10) People v. Jesus Villanueva 17884 January 9, 1996
(11) People v. Ricardo T. Liwanag, et 18008 March 9, 1998
al.
(12) People v. Ma. Lourdes L. Falcon 18036 January 18, 1995
(13) People v. Luis D. Montero, et al. 18684 July 24, 1998
(14) People v. Roel D. Morales 18699 December 22, 1995
(15) People v. Diosdado T. Gulle 18759 October 18, 1995
(16) People v. Benjamin Sapitula, et al. 18785 August 31, 1995
(17) People v. Danilo R. Santos, et al. 18932 November 4, 1997
(18) People v. Pat. Danilo Marañon 19039 May 24, 1995
(19) People v. Romeo Cabando, et al. 19378-19379 May 27, 1996
(20) People v. SPO2 Rodolfo Burbos 19593 July 6, 1998
(21) People v. Guillermo M. Viray, et 19614 August 31, 1998
al.
(22) People v. Mayor Bonifacio 20427 November 5, 1999
Balahay
(23) People v. Enrique Sy, et al. 20487 December 17, 1998
(24) People v. PO2 Manuel L. Bien 20648-20649 March 31, 1998
(25) People v. Felipe L. Laodenio 23066 September 28,
1999
(26) People v. Mayor Walfrido A. 23427 January 16, 1998
Siasico

The Sandiganbayan is a special court created "in an effort to maintain honesty and efficiency in the
bureaucracy, weed out misfits and undesirables in the government and eventually stamp out graft
and corruption."45 We have held consistently that a delay of three (3) years in deciding a single
case is inexcusably long.46 We can not accept the excuses of Presiding Justice Sandiganbayan
Francis E. Garchitorena that the court was reorganized in 1997; that the new justices had to undergo
an orientation and that the Sandiganbayan relocated to its present premises which required the
packing and crating of records; and that some boxes were still unopened.47

We likewise find unacceptable Presiding Justice Garchitorena's excuse that one case
alone48 comprises more that fifty percent (50%) of the First Division's backlog and that the same has
been set for promulgation on December 8, 2000.49 As we said, a delay in a single case cannot be
tolerated, "para muestra, basta un boton." (for an example, one button suffices). It is admitted that
there are several other cases submitted for decision as far back as ten (10) years ago that have
remained undecided by the First Division, of which Justice Garchitorena is presiding justice and
chairman. Indeed, there is even one case, which is a simple motion to withdraw the information filed
by the prosecutor. This has remained unresolved for more than seven (7) years (since 1994).50 The
compliance submitted by the Sandiganbayan presiding justice incriminates him. The memorandum
submitted by the Court Administrator likewise testifies to the unacceptable situation in the
Sandiganbayan. Indeed, there is a disparity in the reports submitted by the Sandiganbayan presiding
justice and the OCA. According to the Court Administrator, the cases submitted for decision that
were still pending promulgation51 before the five divisions of the Sandiganbayan are:52

First Division
Case Number Date Submitted Case Number Date Submitted
1. 11156 8/9/91 99. 23336 9/4/97
2. 11157 8/9/91 100. 23374 12/17/98
3. 11158 8/9/91 101. 23418 10/15/99
4. 11159 8/9/91 102. 23419 10/15/99
5. 11160 8/9/91 103. 23420 10/15/99
6. 11999 12/10/90 104. 23421 10/15/99
7. 12102 7/1/91 105. 23422 10/15/99
8. 12127 2/12/90 106. 23423 10/15/99
9. 12139 6/10/92 107. 23509 9/5/98
10. 12289 8/28/91 108. 23511 4/23/99
11. 12305 2/7/91 109. 23540 10/15/99
12. 12306 2/7/91 110. 24042 4/28/99
13. 13015 3/2/92 111. 24043 4/28/99
14. 13171 11/16/95 112. 24044 4/28/99
15. 13353 10/6/90 113. 24045 4/28/99
16. 13521 12/12/99 114. 24046 4/28/99
17. 13563 7/4/95 115. 24047 4/28/99
18. 13618 7/14/91 116. 24048 4/28/99
19. 13668 6/13/93 117. 24049 4/28/99
20. 13672 3/5/92 118. 24050 4/28/99
21. 13679 8/6/91 119. 24051 4/28/99
22. 13680 8/6/91 120. 24052 4/28/99
23. 13689 11/14/92 121. 24053 4/28/99
24. 13690 11/14/92 122. 24054 4/28/99
25. 13691 11/14/92 123. 24055 4/28/99
26. 13692 11/14/92 124. 24056 4/28/99
27. 13693 11/14/92 125. 24057 4/28/99
28. 13694 11/14/92 126. 24058 4/28/99
29. 13695 11/14/92 127. 24059 4/28/99
30. 13708 3/9/92 128. 24060 4/28/99
31. 13747 8/19/94 129. 24061 4/28/99
32. 13748 8/19/94 130. 24062 4/28/99
33. 13971 3/12/95 131. 24063 4/28/99
34. 14223 3/7/97 132. 24064 4/28/99
35. 14227 9/5/92 133. 24065 4/28/99
36. 14230 11/30/90 134. 24066 4/28/99
37. 14287 7/3/94 135. 24067 4/28/99
38. 14324 11/5/95 136. 24068 4/28/99
39. 14375 5/22/95 137. 24069 4/28/99
40. 14411 1/24/93 138. 24070 4/28/99
41. 14975 9/29/94 139. 24071 4/28/99
42. 14986 12/11/92 140. 24072 4/28/99
43. 15006 11/19/94 141. 24073 4/28/99
44. 15168 3/25/93 142. 24074 4/28/99
45. 15301 3/16/94 143. 24075 4/28/99
46. 16239 12/26/91 144. 24076 4/28/99
47. 16516 11/19/91 145. 24077 4/28/99
48. 16583 8/13/96 146. 24078 4/28/99
49. 16584 8/13/96 147. 24079 4/28/99
50. 16585 8/13/96 148. 24080 4/28/99
51. 16695 8/15/96 149. 24081 4/28/99
52. 16854 1/15/96 150. 24082 4/28/99
53. 16927 12/17/95 151. 24083 4/28/99
54. 16928 12/17/95 152. 24084 4/28/99
55. 16946 8/4/93 153. 24085 4/28/99
56. 17001 9/4/97 154. 24086 4/28/99
57. 17278 5/2/94 155. 24087 4/28/99
58. 17447 9/6/94 156. 24088 4/28/99
59. 17448 9/6/94 157. 24089 4/28/99
60. 17514 8/19/94 158. 24090 4/28/99
61. 17600 8/30/97 159. 24091 4/28/99
62. 17601 8/30/97 160. 24092 4/28/99
63. 17670 11/25/94 161. 24093 4/28/99
64. 17759 6/25/96 162. 24094 4/28/99
65. 17901 5/28/98 163. 24095 4/28/99
66. 18283 2/21/95 164. 24096 4/28/99
67. 18696 8/9/98 165. 24097 4/28/99
68. 18857 10/21/98 166. 24098 4/28/99
69. 19059 2/11/99 167. 24150 1/31/00
70. 19060 2/11/99 168. 24236 2/14/00
71. 19061 2/11/99 169. 24237 2/14/00
72. 19062 2/11/99 170. 24281 5/9/99
73. 19063 2/11/99 171. 24319 11/4/99
74. 19534 9/2/98 172. 24320 11/4/99
75. 19535 9/2/98 173. 24321 11/4/99
76. 19651 11/15/96 174. 24322 11/4/99
77. 19708 8/25/98 175. 24323 11/4/99
78. 19773 5/21/99 176. 24324 11/4/99
79. 19774 5/21/99 177. 24325 11/4/99
80. 19775 5/21/99 178. 24326 11/4/99
81. 19976 5/21/99 179. 24327 11/4/99
82. 19977 5/21/99 180. 24328 11/4/99
83. 19978 5/21/99 181. 24329 11/4/99
84. 19979 5/21/99 182. 24339 10/20/00
85. 20588 2/14/95 183. 24355 2/18/99
86. 20688 7/9/98 184. 24395 7/13/99
87. 20948 10/9/97 185. 24402 6/17/99
88. 20949 10/9/97 186. 24433 9/6/99
89. 21020 7/4/95 187. 24434 9/6/99
90. 22145 7/7/99 188. 24531 12/16/99
91. 22195 6/14/96 189. 24532 12/16/99
92. 22196 6/14/96 190. 24533 12/16/99
93. 22832 10/21/98 191. 24534 12/16/99
94. 23042 8/27/98 192. 24631 8/9/99
95. 23146 11/13/00 193. 24768 7/8/00
96. 23273 4/19/99 194. 6672 7/11/90
97. 23323 3/23/00 195. 9977 5/10/94
98. 23324 8/3/97
Civil Case
1. 0112 1/11/92
2. 0116 10/16/91
3. 0156 3/14/97
Second Division
Case No. Date Submitted
Criminal Case
1. 19542 4/16/99
2. 19004 9/10/96
3. 22934 10/14/00
4. 20483 8/28/96
5. 20484 8/28/96
6. 23529 10/23/00
7. 23530 10/23/00
8. 23338 12/2/99
9. 18786 11/28/00
10. 19686 07/2/97
11. 184403 12/4/98
12. 184404 12/4/98
13. 184405 12/4/98
14. 184406 12/4/98
15. 184407 12/4/98
16. 184408 12/4/98
17. 184409 12/4/98
18. 184410 12/4/98
19. 184411 12/4/98
20. 184412 12/4/98
21. 184413 12/4/98
22. 184414 12/4/98
23. 184415 12/4/98
24. 184416 12/4/98
25. 184417 12/4/98
26. 13827 8/30/00
27. 13828 8/30/00
28. 13829 8/30/00
29. 13830 8/30/00
30. 13831 8/30/00
31. 13832 8/30/00
32. 18965 11/30/00
33. 19848 3/28/96
34. 20765 8/30/96
35. 20816 3/11/98
36. 19692 8/27/00
37. 19693 8/27/00
38. 19694 8/27/00
39. 19695 8/27/00
40. 19696 8/27/00
41. 19697 8/27/00
42. 19698 8/27/00
43. 19699 8/27/00
44. 19700 8/27/00
45. 19701 8/27/00
46. 19702 8/27/00
47. 19703 8/27/00
48. 19704 8/27/00
49. 19705 8/27/00
50. 19706 8/27/00
51. 19707 8/27/00
52. 23262 10/11/00
53. AR#035 12/9/00
54. 24994 8/17/00
55. 21097 12/13/00
56. 20660 12/20/00
57. 23111 11/27/00
58. 24407 7/27/00
59. 24408 7/27/00
60. 18435 3/21/00
61. 22858 8/4/00
62. 22976 5/4/99

Civil Case
1. 0171 7/10/00
Third Division
Case Number Date Submitted
1. SCA/005 12/18/00
2. A/R 016 8/5/99
3. A/R 029 10/2/00
4. 487 4/8/98
5. 488 4/8/98
6.489 4/8/98
7.490 4/8/98
8.491 4/8/98
9.11794 6/10/00
10.13861 4/6/00
11. 13862 4/6/00
12. 13863 4/6/00
13. 13889 3/25/99
14. 16756 8/25/99
15. 17532 12/11/00
16. 18867 10/5/00
17. 18868 10/5/00
18. 18869 10/5/00
19. 18870 10/5/00
20. 18871 10/5/00
21. 18872 10/5/00
22. 19182 4/6/00
23. 19563 4/6/00
24. 19574 4/6/00
25. 19622 4/6/00
26. 19623 4/6/00
27. 19624 4/6/00
28. 20053 4/6/00
29. 20054 4/6/00
30. 20271 12/18/00
31. 22143 12/18/00
32. 23014 9/23/00
33. 23522 7/6/00
34. 23699 3/22/00
35. 23700 3/22/00
36. 23701 3/22/00
37. 23802 9/10/00
38. 23803 9/10/00
39. 24153 12/18/00
40. 24697 9/10/00
41. 24698 9/10/00
42. 24741 12/7/00
43. 24779 10/28/00
44. 24780 10/28/00
45. 24781 10/28/00
46. 25657 5/5/00
Fourth Division
Case No. Date Submitted
1. 11960 09/21/98
2. 17664 01/29/98
3. 13036 02/22/99
4. 13037 02/22/99
5. 13593 05/21/96
6. 13594 05/21/96
7. 13757 03/21/97
8. 14380 02/14/95
9. 16809 03/26/00
10. 17015 06/06/94
11. 17016 06/06/94
12. 17140 06/13/96
13. 17141 06/13/96
14. 17209 12/27/96
15. 17805 02/15/00
16. 17806 02/15/00
17. 17809 02/15/00
18. 17856 04/02/00
19. 18005 05/07/96
20. 18006 05/07/96
21. 18257 09/22/97
22. 18894 11/17/00
23. 18895 11/17/00
24. 18896 11/17/00
25. 18900 10/28/00
26. 18935 06/16/00
27. 18936 06/16/00
28. 18937 06/16/00
29. 19567 05/21/96
30. 20338 05/19/97
31. 20469 07/07/00
32. 20470 07/07/00
33. 20471 07/07/00
34. 20472 07/07/00
35. 20473 07/07/00
36. 20474 07/07/00
37. 20475 07/07/00
38. 20476 07/07/00
39. 20664 06/29/96
40. 20685 02/18/00
41. 20828 09/13/00
42. 21093 08/07/99
43. 21131 08/04/96
44. 21778 09/29/97
45. 21779 09/29/97
46. 21780 09/29/97
47. 22891 03/02/00
48. 22892 03/02/00
49. 23007 05/24/99
50. 23058 04/27/00
51. 23059 04/27/00
52. 23060 04/27/00
53. 23061 04/27/00
54. 23062 04/27/00
55. 23366 03/28/99
56. 23415 05/25/00
57. 23534 12/15/00
58. 23708 09/27/00
59. 24447 09/18/00
60. 24448 09/18/00
61. 24464 07/26/00
62. 24465 07/26/00
63. 24742 10/10/00
64. 24841 03/22/00
65. 24842 03/22/00
66. 24851 10/29/00
67. 25198 05/31/00
68. 25389 09/26/00
69. 25543 12/27/00
70. 25658 07/28/00
Fifth Division
Case Number Date Submitted
Criminal Cases
1. 14397 1/4/99
2. 16672 2/13/00
3. 17030 2/19/98
4. 17826 12/9/00
5. 17827 12/9/00
6. 18478 8/21/00
7. 18684 5/29/98
8. 18880 12/6/00
9. 19510 12/4/00
 10. 19511 12/4/00
11. 19512 12/4/00
12. 19593 6/5/98
13. 19614 7/31/98
14. 19668 7/26/98
15. 20194 1/8/01
16. 20427 11/3/99
17. 20648 1/4/98
18. 20649 1/4/98
19. 20694 3/11/98
20. 21882 8/12/00
21. 22184 12/16/00
22. 22873 12/4/99
23. 22926 11/13/00
24. 23066 8/16/99
25. 23319 9/30/00
26. 23450 9/16/00
27. 23515 1/29/00
28. 24155 11/30/00
29. 24379 8/27/00
30. 24759 5/5/00
31. 24858 12/28/00

We find that Presiding Justice Francis E. Garchitorena failed to devise an efficient recording and
filing system to enable him to monitor the flow of cases and to manage their speedy and timely
disposition. This is his duty on which he failed.53

Memorandum of the Court Administrator

On November 14, 2001, the Court required the Office of the Court Administrator54 to update its
report.55

On November 16, 2001, OCA Consultant Pedro A. Ramirez (Justice, Court of Appeals, Retired)
submitted a "compliance report" with the Court's order. The compliance report shows that to this day,
several cases that were reported pending by the Sandiganbayan on September 26, 2000, and
likewise reported undecided by the OCA on January 26, 2001, have not been decided/resolved. We
quote the compliance report:56

First Division
Case Number Date Ponente Reason for Not
Submitted Assigned Deciding Case
194. 11999 12/10/90 Garchitorena Under study, submitted
before the
reorganization
195. 12102 7/1/91 Garchitorena Under study, submitted
before the
reorganization
196. 12127 2/12/90 Not reported; unaccounted for by
Sandiganbayan report
197. 12139 6/10/92 Castaneda* Under study submitted
before the
reorganization
198. 12289 8/28/91 Castaneda Under study submitted
before the
reorganization
199. 12305-06 2/7/91 Castaneda Under study submitted
before the
reorganization
200. 13015 3/2/92 Garchitorena Under study submitted
before the
reorganization
201. 13171 11/16/95 Castaneda Under study submitted
before the
reorganization
202. 13353 10/6/90 Garchitorena Under study submitted
before the
reorganization
203. 13521 12/12/99 Garchitorena Under study submitted
before the
reorganization
204. 13563 7/4/95 Garchitorena Under study submitted
before the
reorganization
205. 13618 7/14/91 Castaneda Under study submitted
before the
reorganization
206. 13668 6/13/93 Castaneda Under study submitted
before the
reorganization
207. 13672 3/5/92 Castaneda Under study submitted
before the
reorganization
208. 13679-80 8/6/91 Castaneda Under study submitted
before the
reorganization
209. 13689-95 11/14/92 Castaneda Under study submitted
before the
reorganization
210. 13708 3/9/92 Castaneda Under study submitted
before the
reorganization
211. 13747-48 8/19/94 Castaneda Under study submitted
before the
reorganization
212. 13971 3/12/95 Castaneda Under study submitted
before the
reorganization
213. 14223 3/7/97 Death of accused is unconfirmed and
dismissal of the case was held in
abeyance. (Ong, J.)*
214. 14227 9/5/92 Castaneda Under study submitted
before the
reorganization
215. 14230 11/30/90 Castaneda Under study submitted
before the
reorganization
216. 14287 7/3/94 Castaneda Under study submitted
before the
reorganization
217. 14324 11/5/95 Castaneda Under study submitted
before the
reorganization
218. 14375 5/22/95 Castaneda Under study submitted
before the
reorganization
219. 14411 1/24/93 Castaneda Under study submitted
before the
reorganization
220. 14975 9/29/94 Castaneda Under study submitted
before the
reorganization
221. 14986 12/11/92 Castaneda Under study submitted
before the
reorganization
222. 15006 11/19/94 Castaneda Under study submitted
before the
reorganization
223. 15168 3/25/93 Castaneda Under study submitted
before the
reorganization
224. 15301 3/16/94 Castaneda Under study submitted
before the
reorganization
225. 16239 12/26/91 Castaneda Under study submitted
before the
reorganization
226. 16516 11/19/91 Castaneda Under study submitted
before the
reorganization
227. 16583-85 8/13/96 Castaneda Under study submitted
before the
reorganization
228. 16695 8/15/96 Castaneda Under study submitted
before the
reorganization
229. 16854 1/15/96 Castaneda Under study submitted
before the
reorganization
230. 16927-28 12/17/95 Castaneda Under study submitted
before the
reorganization
231. 16946 8/4/93 Castaneda Under study submitted
before the
reorganization
232. 17001 9/4/97 Not yet assigned
233. 17278 5/2/94 Death of accused is unconfirmed and
dismissal of the case was held in
abeyance. (Ong, J.)
234. 17600 8/30/97 Not yet assigned
235. 17601 8/30/97 Not yet assigned
236. 17759 6/25/96 Ong Decided and set for
promulgation
237. 17901 5/28/98 Not yet assigned
238. 18696 8/9/98 Not yet assigned
239. 18857 10/21/98 Not yet assigned
240. 19059-63 2/11/99 Not yet assigned
241. 19534-35 9/2/98 Not yet assigned
242. 19708 8/25/98 Not yet assigned
243. 19773-79 5/21/99 Not yet assigned
244. 20688 7/9/98 Not yet assigned
245. 20948 10/9/97 Not reported; unaccounted for by
Sandiganbayan report
246. 20949 10/9/97 Not reported; unaccounted for by
Sandiganbayan report
247. 21020 7/4/95 Ong Set for Promulgation
on November 27, 2001
248. 22145 7/7/99 Not yet assigned
249. 22195-96 6/14/96 Castaneda Under study, submitted
before the
reorganization
250. 22832 10/21/98 Not yet assigned
251. 23042 8/27/98 Not yet assigned
252. 23146 11/13/00 Not yet assigned
253. 23273 4/19/99 Not yet assigned
254. 23323 3/23/00 Not yet assigned
255. 23324 8/3/97 Not yet assigned
256. 23336 9/4/97 Not yet assigned
257. 23374 12/17/98 Not yet assigned
258. 23418-23 10/15/99 Not yet assigned
259. 23509 9/5/98 Not yet assigned
260. 23511 4/23/99 Not yet assigned
261. 23540 10/15/99 Not yet assigned
262. 24042-98 4/28/99 Ong Set for Promulgation
on November 27, 2001
263. 24150 1/31/00 Not yet assigned
264. 24236-37 2/14/00 Not yet assigned
265. 24281 5/9/99 Not yet assigned
266. 24319-29 11/4/99 Not yet assigned
267.24319-29 11/4/99 Not reported; unaccounted for by
Sandiganbayan report
268. 24355 2/18/99 Not yet assigned
269.24395 7/13/99 Not reported; unaccounted for by
Sandiganbayan report
270. 24402 6/17/99 Not yet assigned
271. 24433-34 9/6/99 Not yet assigned
272. 24531-34 12/16/99 Not yet assigned
273. 24631 8/9/99 Not yet assigned
274. 24768 7/8/00 Not yet assigned
275. 6672 7/11/90 Garchitorena Under Study, before
the reorganization
276. 9977 5/10/94 Garchitorena Under Study, before
the reorganization
277. 0112 1/11/92 Not reported; unaccounted for by
Sandiganbayan report
278. 0116 10/16/91 Not reported; unaccounted for by
Sandiganbayan report
279. 0156 3/14/97 Not reported; unaccounted for by
Sandiganbayan report
Summary/Tally
Cases Assigned to 9
Garchitorena, PJ.
Cases Assigned to Castaneda, 42
J.
Cases Assigned to Ong, J. 5
Cases not yet assigned 73
Cases not accounted for or 9
reported
Total 138
Second Division
Case Number Date Ponente Reason for Not
Submitted Assigned Deciding Case
63. 19542 4/16/99 For retaking of testimony due to
incomplete TSN
64. 13827-32 8/30/00 Victorino For promulgation
65. 18965 11/30/00 For retaking of testimony due to
incomplete TSN
Third Division
Case Number Date Ponente Reason for Not
Submitted Assigned Deciding Case
47. SCA/005 12/18/00 Ilarde --
48. A/R 029 10/2/00 Illarde
49. 487-491 4/8/98 With pending demurrer to evidence,
submitted, 01/26/01 re Submitted,
03/20/01
50. 11794 6/10/00 De Castro --
51. 17532 12/11/00 Ilarde --
52. 18867-72 10/5/00 Pending trial per order dated 08/17/00
53. 19182 4/6/00 Unloaded to the 5th Division, 10/13/97
54. 19563 4/6/00 No Assignment --
55. 19574 4/6/00 No Assignment --
56. 19622-24 4/6/00 Unloaded to the 5th Division, 10/13/97
57. 20053-54 4/6/00 Not with the 3rd Division
58. 20271 12/18/00 Illarde --
59. 22143 12/18/00 De Castro --
60. 23014 9/23/00 De Castro --
61. 23699-701 3/22/00 Ilarde --
62. 23802-03 9/10/00 No Assignment --
63. 24153 12/18/00 No Assignment --
64. 24697-98 9/10/00 Ilarde --
65. 24741 12/7/00 De Castro --
66. 24779-81 10/28/00 No Assignment --
67. 25657 5/5/00 With Defense pending motion for the re-
examination of the Information and the
parties' affidavits, etc. Order dated
08/31/01
Summary/Tally
Cases Assigned to Illarde, J. 9
Cases Assigned to De Castro, J. 4
Cases not yet assigned 8
Others 18
Total 39
Fourth Division**
Case Number Date Ponente Reason for Not
Submitted Assigned Deciding Case
71. 11960 09/21/98 Draft of decision penned by J. Nario in
view of the dissenting opinion of one
Justice was referred to a Division of five
(5) composed of Nario, Palattao, Ferrer,
Badoy, Jr. and De Castro, JJ.
72. 16809 03/26/00 Palattao --
73. 23058-62 04/27/00 Nario --
74. 25389 09/26/00 Nario --
Fifth Division
Case Number Date Ponente Reason for Not
Submitted Assigned Deciding Case
32. 14397 1/4/99 Badoy, Jr. Inherited case/lack of
personnel
33. 16672 2/13/00 Badoy, Jr. Inherited case/lack of
personnel
34. 17030 2/19/98 Badoy, Jr. Inherited case/lack of
personnel
35. 18478 8/21/00 Estrada Inherited case/lack of
personnel
36. 18684 5/29/98 Badoy, Jr. Inherited case/lack of
personnel
37. 18880 12/6/00 Badoy, Jr. Inherited case/lack of
personnel
38. 19510-12 12/4/00 Estrada Inherited case/lack of
personnel
39. 19593 6/5/98 Badoy, Jr. Inherited case/lack of
personnel
 40. 19614 7/31/98 Badoy, Jr. Inherited case/lack of
personnel
41. 20194 1/8/01 Chico-Nazario Complicated Issues
42. 20427 11/3/99 Badoy, Jr. Inherited case/lack of
personnel
43. 20648-49 1/4/98 Badoy, Jr. Inherited case/lack of
personnel
44. 20694 3/11/98 Estrada Inherited case/lack of
personnel
45. 22926 11/13/00 No report, Unaccounted for by the
Sandiganbayan report
46. 23066 8/16/99 Badoy, Jr. Not yet due
47. 24155 11/30/00 Estrada
48. 24379 8/27/00 Estrada Draft decision released
7/31/01
Summary/Tally
Cases Assigned to Badoy, J. *** 11
Cases Assigned to Estrada, J. 7
Cases Assigned to Chico- 1
Nazario, J.
No report/Unaccounted For 1
Total 20

3. Applicability of SC Adm. Circular No. 10-94.-- Supreme Court Circular No. 10-94 applies to the
Sandiganbayan.

Administrative Circular 10-9457 directs all trial judges to make a physical inventory of the cases in
their dockets. The docket inventory procedure is as follows:58

"a. Every trial judge shall submit not later than the last week of February and the last week of
August of each year a tabulation of all pending cases which shall indicate on a horizontal
column the following data:

"1. Title of the case

"2. Date of Filing

"3. Date arraignment in criminal cases of Pre-trial in civil cases and

"4. Date of initial trial

"5. Date of last hearing

"6. Date submitted for Decision

 "b. The tabulation shall end with a certification by the trial judge that he/she has personally
undertaken an inventory of the pending cases in his/her court; that he/she has examined
each case record and initialled the last page thereof. The judge shall indicate in his/her
certification the date when inventory was conducted.

"c. The Tabulation and Certification shall be in the following form.

Docket Inventory for the Period

January __ to June ___, ___/July

To December ___, ___

(Indicate Period)

Court and Station ________

Presiding Judge ________

Date of Date
Title of Date Initial
Pretrial/Arraignment Last submitted for
Case Filed Hearing
Hearing Decision

"CERTIFICATION:

"I hereby certify that on (Date/Dates___), I personally conducted a physical inventory of

pending cases in the docket of this court, that I personally examined the records of each
case and initialled the last page thereof, and I certify that the results of the inventory are
correctly reflected in the above tabulation.

_________. _____________________
Presiding Judge"

Given the rationale behind the Administrative Circular, we hold that it is applicable to the
Sandiganbayan with respect to cases within its original and appellate jurisdiction.

Mora Decidendi

We reiterate the admonition we issued in our resolution of October 10, 2000:59

"This Court has consistently impressed upon judges (which includes justices) to decide
cases promptly and expeditiously on the principle that justice delayed is justice
denied. Decision making is the primordial and most important duty of the member of the
bench.60 Hence, judges are enjoined to decide cases with dispatch. Their failure to do so
constitutes gross inefficiency61 that warrants disciplinary sanction, including
fine,62 suspension63 and even dismissal.64 The rule particularly applies to justices of the
Sandiganbayan. Delays in the disposition of cases erode the faith and confidence of our
 people in the judiciary, lower its standards, and bring it into disrepute.65 Delays cannot be
sanctioned or tolerated especially in the anti-graft court, the showcase of the nation's
determination to succeed in its war against graft (italics ours)."

In Yuchengco v. Republic,66 we urged the Sandiganbayan to promptly administer justice. We stated

that the Sandiganbayan has the inherent power to amend and control its processes and orders to
make them conformable to law and justice. The Sandiganbayan as the nation's anti-graft court must
be the first to avert opportunities for graft, uphold the right of all persons to a speedy disposition of
their cases and avert the precipitate loss of their rights.

Practice of Unloading Cases

According to the memorandum submitted by the OCA, there is a practice in the first and third
divisions of the Sandiganbayan of unloading cases to other divisions despite the fact that these
cases have been submitted for decision before them. We cite relevant portions of the
memorandum:67

Cases Submitted for Decision When Unloaded to the Fourth Division

Division Date
where Submitted
Case No. Title of the Case
case for
originated Decision
1) 17015 PP vs. Raul Zapatos 3rd 06/06/94
2) 17016 PP vs. Raul Zapatos 3rd 06/06/94
3) 14380 PP vs. Francisco Ramoran 3rd 02/14/95
4) 18005 PP vs. Panfilo Bongcac 3rd 05/07/96
5) 18006 PP vs. Panfilo Bongcac 3rd 05/07/96
6) 13593 PP vs. Dominador Meninguito 3rd 05/30/96
7) 13594 PP vs. Dominador Meninguito 3rd 05/30/96
8) 19567 PP vs. Dominador Meninguito 3rd 05/30/96
9) 17140 PP vs. Jose Café, et. al. 3rd 06/13/96
10) 17141 PP vs. Jose Café, et. al. 3rd 06/13/96
11) 20064 PP vs. Ben dela Pena 3rd 07/01/96
12) 21131 PP vs. Rufino Mamanguin 3rd 08/05/96
13) 17209 PP vs. Isidro Catapang 3rd 12/27/96
14) 13757 PP vs. Catalino Daganzo 3rd 03/21/97
15) 18257 PP vs. Zenaida Sazon 1st 09/22/97

Cases Submitted for Decision When Unloaded to the Fifth Division

Case Number Date Submitted

1. 10264 12/22/90
2. 13344 5/14/97
3. 16223 4/25/94
4. 16574 5/30/95
5. 16760 5/25/95
6. 16810 1/23/96
7. 17018 7/20/94
8. 17055 7/5/95
9. 17139 4/24/94
10. 17162 2/23/95
11. 17193 3/8/94
12. 17426 2/12/94
13. 17480 3/22/94
14. 17538 11/20/95
15. 17567 2/24/93
16. 17598 8/3/94
17. 17617 3/28/96
18. 17618 4/6/95
19. 17619 4/6/95
20. 17640 6/12/95
21. 17661 12/15/94
22. 17666 8/25/97
23. 17884 11/12/95
24. 17902 4/16/95
25. 18008 9/15/97
26. 18423 1/15/96
27. 18687 9/30/94
28. 18759 10/12/95
29. 18785 7/13/95
30. 18932 4/20/97
31. 18988 10/25/95
32. 18999 12/21/95
33. 19039 5/6/95
34. 19378 4/17/96
35. 19379 4/17/96
36. 19679 10/5/95
37. 19712 2/18/95
38. 19907 6/22/95
39. 20487 12/14/96
40. 20624 7/15/95
41. 23427 7/25/97
We suggest a review of the practice of unloading cases that greatly contributes to the backlog of
undecided cases. When a case has been heard and tried before a division of the Sandiganbayan, it
is ideal that the same division and no other must decide it as far as practicable.

We further note that several cases which were earlier reported as undecided by the Sandiganbayan
and the OCA have been decided since the reports of September 26, 2000 and January 26, 2001.
Nonetheless, the delay in deciding these cases is patent and merits reprobation. According to the
compliance report submitted by the OCA on November 16, 2001, there are several cases decided
way beyond the reglementary period prescribed by law, even assuming without granting, a
reglementary period of twelve months from the time a case is submitted for decision.68

In a case brought before this Court, Presiding Justice Garchitorena admitted fault and that the fault
is exclusively his own, in failing to decide the case, though submitted for decision as early as June
20, 1990.69 This case was not even included among pending cases in the Sandiganbayan report of
September 26, 2000.

The following cases were decided, though beyond the prescribed period:

First Division
Submitted for Date of
Case Number Ponente
Decision Promulgation
November 10,
14195 March 31, 1997 Ong
2000
November 15,
21608 March 31, 1997 Ong
2000
20588 February 14, 1998 January 12, 2001 Ong
19651 November 15, 1996 January 26, 2001 Ong
17670 November 25, 1994 January 26, 2001 Ong
17447-48 September 6, 1994 February 22, 2001 Ong
18283 February 21, 1995 February 23, 2001 Ong
17514 August 19, 1994 April 24, 2001 Ong
Second Division
Submitted for Date of
Case Number Ponente
Decision Promulgation
18403-18417 December 4, 1998 February 2, 2001 Victorino
18435 August 11, 2000 March 26, 2001 Victorino
18786 November 28, 2000 March 28, 2001 Legaspi
19004 September 10, 1996 March 16, 2001 Victorino
19692-19707 August 27, 2000 February 26, 2001 Sandoval
19848 March 28, 1996 January 29, 2001 Victorino
20483-20484 July 26, 1995 April 6, 2001 Victorino
20660 December 20, 2000 August 2, 2001 Legaspi
20765 August 30, 1996 February 23, 2001 Victorino
20816 March 11, 1998 January 25, 2001 Victorino
21097 December 13, 2000 June 15, 2001 Victorino
22858 August 11, 2000 January 31, 2001 Victorino
22934 October 14, 2000 February 15, 2001 Sandoval
22976 May 4, 1999 March 1, 2001 Sandoval
23111 November 27, 2000 March 14, 2001 Sandoval
23262 October 11, 2000 May 16, 2001 Victorino
December 14,
23338 December 2, 1999 Sandoval
2000
23529-23530 October 23, 2000 March 28, 2001 Victorino
24407-24408 August 11, 2000 January 24, 2001 Legaspi
24994 August 17, 2000 May 30, 2001 Sandoval
AR#035 December 9, 2000 August 28, 2001 Legaspi
Third Division
Submitted for Date of
Case Number Ponente
Decision Promulgation
A/R 016 November 16, 1999 January 26, 2001 Ilarde
December 22,
13861-13863 April 6, 2000 Del Rosario
2000
13889 September 30, 1999 May 10, 2001 Ilarde
December 11,
16756 August 28, 1999 Del Rosario
2000
23522 July 6, 2000 January 12, 2001 Del Rosario
Fourth Division
Submitted for Date of
Case Number Ponente
Decision Promulgation
17664 August 31, 1999 June 1, 2000 Pallatao
17016 June 6, 1994 March 27, 2001 Ferrer
17140-41 June 13, 1996 February 6, 2001 Nario
17209 December 27, 1996 April 30, 2001 Ferrer
17805-09;
February 15, 2000 October 10, 2001 Palattao
17814
17856 April 2, 2000 June 25, 2001 Palattao
18005-06 May 7, 1996 May 18, 2001 Ferrer
18257 September 22, 1997 July 26, 2001 Ferrer
18894-96 November 17, 2000 March 20, 2001 Palattao
18900 October 28, 2000 March 23, 2001 Ferrer
18935-37 June 16, 2000 January 18, 2001 Palattao
19567 May 21, 1996 January 15, 2001 Ferrer
20338 May 19, 1997 February 9, 2001 Ferrer
20469 July 7, 2000 June 25, 2001 Palattao
13036-37 February 22, 1999 February 28, 2001 Ferrer
13593-94 May 21, 1996 January 15, 2001 Ferrer
20470-76 July 7, 2000 June 25, 2001 Palattao
20664 June 29, 1996 February 20, 2001 Ferrer
20685 February 18, 2000 March 2, 2001 Palattao
20828 September 13, 2000 October 8, 2001 Palattao
21093 August 7, 1999 January 15, 2001 Palattao
21131 August 4, 1996 February 13, 2001 Ferrer
21778-80 September 29, 1997 June 21, 2001 Ferrer
December 13,
22891-92 March 2, 2000 Ferrer
2000
23007 May 24, 1999 March 14, 2000 Ferrer
13757 March 21, 1997 July 2, 2001 Ferrer
14380 February 14, 1995 April 23, 2001 Ferrer
17015 June 6, 1994 March 27, 2001 Ferrer
23366 November 26, 1999 October 29, 2001 Ferrer
23415 May 25, 2000 May 28, 2001 Palattao
23534 December 15, 2000 February 28, 2001 Palattao
September 10,
23708 September 27, 2000 Nario
2001
24464-65 July 26, 2000 June 26, 2001 Nario
24742 October 10, 2000 March 22, 2001 Ferrer
24841-42 May 9, 2000 March 7, 2001 Ferrer
25198 July 12, 2000 February 6, 2001 Nario
25543 December 27, 2000 February 26, 2001 Palattao
25658 July 28, 2000 July 20, 2001 Palattao
24447-48 September 18, 2000 December 7, 2001 Palattao
Fifth Division
Submitted for Date of
Case Number Ponente
Decision Promulgation
17826-17827 December 9, 2000 March 28, 2001 Chico-Nazario
19668 July 26, 1998 February 9, 2001 Badoy, Jr.
21882 August 12, 2000 July 25, 2001 Chico- Nazario
22184 December 16, 2000 May 21, 2001 Chico- Nazario
22873 December 4, 1999 May 31, 2001 Chico- Nazario
23319 September 30, 2000 April 23, 2001 Chico- Nazario
23450 September 16, 2000 March 16, 2001 Chico- Nazario
23515 January 29, 2000 May 28, 2001 Cortez-Estrada
24759 May 5, 2000 July 10, 2001 Cortez-Estrada
 24858 December 28, 2000 May 31, 2001 Chico-Nazario

Relief of Presiding Justice

At this juncture, the Court cites the case of Canson v. Garchitorena.70 In that case, we admonished
respondent Presiding Justice Francis E. Garchitorena. General Jewel F. Canson, Police Chief
Superintendent, National Capital Region Command Director, complained of deliberate delayed
action of the Presiding Justice on the transfer of Criminal Cases Nos. 23047-23057 to the Regional
Trial Court of Quezon City, depriving complainant of his right to a just and speedy trial. Due to a
finding of lack of bad faith on the part of respondent justice, we issued only a warning. However, the
dispositive portion of the decision cautioned respondent justice that "a repetition of the same or
similar act in the future shall be dealt with more severely."71

Presiding Justice Francis E. Garchitorena sits as the Chairman, First Division, with a backlog of
cases pending decision. At least seventy-three cases have been unassigned for the writing of the
extended opinion, though submitted for decision. It may be the thinking of the Presiding Justice,
Sandiganbayan that an unassigned case is not counted in its backlog of undecided cases. This is
not correct. It is the duty of the Presiding Justice and the Chairmen of divisions to assign
the ponente as soon as the case is declared submitted for decision, if not earlier. If he fails to make
the assignment, he shall be deemed to be the ponente.

The Constitution provides that a case shall be deemed submitted for decision or resolution upon the
filing of the last pleading, brief, or memorandum required by the Rules of Court or by the court
itself.72 In Administrative Circular No. 28, dated July 3, 1989, the Supreme Court provided that "A
case is considered submitted for decision upon the admission of the evidence of the parties at the
termination of the trial. The ninety (90) days period for deciding the case shall commence to run from
submission of the case for decision without memoranda; in case the court requires or allows its filing,
the case shall be considered submitted for decision upon the filing of the last memorandum or the
expiration of the period to do so, whichever is earlier. Lack of transcript of stenographic notes shall
not be a valid reason to interrupt or suspend the period for deciding the case unless the case was
previously heard by another judge not the deciding judge in which case the latter shall have the full
period of ninety (90) days from the completion of the transcripts within which to decide the
same."73 The designation of a ponente to a case is not a difficult administrative task.

Administrative sanctions must be imposed. "Mora reprobatur in lege."74 Again, we reiterate the
principle that decision-making is the most important of all judicial functions and responsibilities.75 In
this area, Presiding Justice Francis E. Garchitorena, as the ponente assigned to the cases submitted
for decision/resolution long ago, some as far back as more than ten (10) years ago, has been remiss
constituting gross neglect of duty and inefficiency.76 As we said in Canson,77 unreasonable delay of a
judge in resolving a case amounts to a denial of justice, bringing the Sandiganbayan into disrepute,
eroding the public faith and confidence in the judiciary.78

Consequently, Presiding Justice Francis E. Garchitorena should be relieved of all trial and
administrative work as Presiding Justice and as Chairman, First Division so that he can devote
himself full time to decision-making until his backlog is cleared. He shall finish this assignment not
later than six (6) months from the promulgation of this resolution.

We have, in cases where trial court judges failed to decide even a single case within the ninety (90)
day period, imposed a fine ranging from five thousand pesos (P5,000.00) to the equivalent of their
one month's salary.79 According to the report of the Sandiganbayan, as of September 26, 2000,
there were three hundred forty one (341) cases submitted for decision before its first division headed
by the Presiding Justice. In the memorandum of the OCA, there were one hundred ninety eight (198)
cases reported submitted for decision before the First Division.80 Even in the updated report, there
are one hundred thirty eight (138) cases still undecided in the First Division.

In fact, Presiding Justice Francis E. Garchitorena admitted that he has a backlog.81 He claimed that
one (1) case alone comprises fifty percent (50%) of the backlog. We find this claim exaggerated. We
cannot accept that a backlog of three hundred forty one (341) cases in the First Division could be
eliminated by the resolution of a single consolidated case of one hundred fifty six (156) counts. A
consolidated case is considered only as one case. The cases referred to were consolidated as
Criminal Case Nos. 9812-9967, People v. Corazon Gammad-Leaño, decided on December 8, 2000.
What about the one hundred eighty five (185) cases that unfortunately remained undecided to this
date? Worse, the motion for reconsideration of the decision in said cases, submitted as of January
11, 2001, has not been resolved to this date.82 The First Division has only thirty (30) days from
submission to resolve the same. It is now ten (10) months from submission. The expediente and the
motion were transmitted to the ponente, Presiding Justice Francis E. Garchitorena, on that date, but
to this day the case remains unresolved.83 Unfortunately, even other divisions of the Sandiganbayan
may be following his example.84

In the first report of the Court Administrator, he indicated a total of one hundred ninety five (195)
criminal cases and three (3) civil cases, or a total of one hundred ninety eight (198) cases submitted
for decision as of December 21, 2000.85 Almost a year later, as of November 16, 2001, there are still
one hundred thirty eight (138) cases undecided submitted long ago. For almost one year, not one
case was decided/resolved by the Presiding Justice himself.86

Directive

WHEREFORE, in view of all the foregoing, the Court resolves:

(1) To IMPOSE on Presiding Justice Francis E. Garchitorena a fine of twenty thousand

pesos (P20,000.00), for inefficiency and gross neglect of duty.

(2) Effective December 1, 2001, to RELIEVE Presiding Justice Francis E. Garchitorena of his
powers, functions and duties as the Presiding Justice, Sandiganbayan, and from presiding
over the trial of cases as a justice and Chairman, First Division, so that he may DEVOTE
himself exclusively to DECISION WRITING, until the backlog of cases assigned to him as
well as cases not assigned to any ponente, of which he shall be deemed the ponente in the
First Division, are finally decided. There shall be no unloading of cases to other divisions, or
to the First Division inter se.

In the interim, Associate Justice Minita V. Chico-Nazario, as the most senior associate
justice, shall TAKE OVER and exercise the powers, functions, and duties of the office of the
Presiding Justice, Sandiganbayan, until further orders from this Court.

(3) To DIRECT Presiding Justice Francis E. Garchitorena and the associate justices of the
Sandiganbayan to decide/resolve the undecided cases submitted for decision as of this date,
within three (3) months from their submission, and to resolve motions for new trial or
reconsiderations and petitions for review within thirty (30) days from their submission. With
respect to the backlog of cases, as hereinabove enumerated, the Sandiganbayan shall
decide/resolve all pending cases including incidents therein within six (6) months from notice
of this resolution.

(4) To ORDER the Sandiganbayan to comply with Supreme Court Administrative Circular 10-
94, effective immediately.
 (5) To DIRECT the Sandiganbayan en banc to adopt not later than December 31, 2001
internal rules to govern the allotment of cases among the divisions, the rotation of justices
among them and other matters leading to the internal operation of the court, and thereafter to
submit the said internal rules to the Supreme Court for its approval.87

This directive is immediately executory.

SO ORDERED.

A.M. No. 09-7-284-RTC February 16, 2011

RE: REPORT ON THE JUDICIAL AUDIT CONDUCTED IN THE REGIONAL TRIAL COURT -
BRANCH 56, MANDAUE CITY, CEBU.

DECISION

PERALTA, J.:

This administrative matter stemmed from the Report dated July 6, 2009 on the judicial audit and
physical inventory of cases conducted by the Audit Team of the Office of the Court Administrator
(OCA) in March 2007 in the Regional Trial Court of Mandaue City, Branch 56, Cebu, in anticipation
of the compulsory retirement of Judge Augustine A. Vestil (Judge Vestil), then presiding judge of the
same court.

The report disclosed that during the audit, the trial court has: (1) a total caseload of 1,431 cases
consisting of 555 civil cases and 876 criminal cases; (2) 15 cases submitted for decision, but were
already beyond the reglementary period;1 (3) two cases with pending incidents awaiting resolution,
which were beyond the reglementary period;2 and (4) 247 cases, which had remained dormant for a
considerable length of time.

It was further reported that Branch 56 did not observe an organized record management. No system
was being followed to facilitate the monitoring of the status of cases. The court records were found
to be in disarray as: (1) court records of terminated and archived cases were mixed with active
cases; (2) copies of orders, pleadings and other documents were not chronologically attached to the
case folders; (3) copies of the minutes of the hearings/proceedings were left unattached to the case
folders and were merely kept in a separate file; and (4) loose copies of orders, pleadings and other
documents were found merely inserted in the case folders.

Thus, on April 23, 2007, then Deputy Court Administrator Zenaida N. Elepaño issued a
Memorandum, directing Judge Vestil to: (1) submit an explanation of his failure to: [a] decide 15
cases submitted for decision within the reglementary period, [b] resolve the incidents for resolution in
two cases within the reglementary period, and [c] take further action on the 247 cases despite the
lapse of a considerable length of time; (2) decide the 15 cases submitted for decision and resolve
the incidents in two cases; and (3) take appropriate action on the 247 dormant cases within 45 days
from notice.
Likewise, in the same Memorandum, Atty. Emeline Bullever-Cabahug (Atty. Cabahug), Clerk of
Court of the same court, was directed to devise and adopt a records management system that will
ensure the immediate and orderly filing of court records, and effectively facilitate the monitoring of
the status of cases and supervise her staff members to ensure prompt delivery of their respective
assignments.

On June 20, 2007, in compliance with the Court's directives, Judge Vestil, without explaining the
reason for the delay, reported the subsequent actions taken in the cases referred to in the
Memorandum dated April 23, 2007, to wit:

As to directive no. 2:

1. Civil Case No. MAN-2910 - submitted for decision in May 2007 as the defendant's Formal
Offer of Exhibits was filed on February 12, 2007 and the exhibits were admitted on March 19,
2007;

2. Civil Case No. MAN-3084 – still pending trial and hearing was reset to June 28, 2007;

3. Civil Case No. MAN-4009 - decided on February 20, 2007, or 17 days before the lapse of
the reglementary period. But due to the absence of the typist-in-charge, the typing of the
decision was left unfinished;

4. LRC No. 638 – decided on March 8, 2007;

5. LRC (Fe Cortes Dabon, petitioner) – decided on December 7, 2006;

6. Criminal Case No. DU-3316 – decided on September 4, 2006 and was promulgated on
June 6, 2007;

7. Criminal Case No. DU-5308 - decided on September 21, 2004. Promulgated set on
December 5, 2006. Reset to May 28, 2007. Reset to April 26, 2007 and reset to May 21,
2007. Pre-trial of other accused was still set on May 21, 2007;

8. Criminal Case No. DU-7047 – decided on April 13, 2007; promulgated on March 26, 2007;

9. Criminal Case No. DU-7518 – decided on April 7, 2006; promulgated on April 3, 2007;

10. Criminal Case No. DU-7649 – decided on February 9, 2007; promulgated on May 28,
2007;

11. Criminal Case No. DU-9207 – decided on August 1, 2006 and promulgated on April 18,
2007;

12. Criminal Case No. DU-9650 – submitted for decision on March 1, 2007;

13. Criminal Case No. DU-11862 – decided per judgment dated October 16, 2006; set for
promulgation on March 1. 2007;

14. Criminal Case No. DU-12508 – originally set to be promulgated on December 6, 2006
but due to lack of judges, it was eventually promulgated only on May 11, 2007;
 15. Criminal Case No. DU-13453 – promulgated on April 2007;

16. Civil Case No. MAN-3762 (Motion to Dismiss) - counsels were required to submit their
respective memoranda with regard to the motion to dismiss only up to June 11, 2007, thus,
not yet submitted for decision;

17. Criminal Case No. DU-10480 (Demurrer to Evidence)- per order dated May 25, 2007,
demurrer to evidence was denied. Reception of Accused evidence was set to August 28,
2007.

With regard to the alleged dormant cases, Judge Vestil acted, although belatedly, on the two
hundred forty-seven (247) cases before he retired on August 8, 2007. Some of the cases were
ordered dismissed or archived; others were set for pre-marking of exhibits, deposition-taking,
arraignment, pre-trial or hearing; and, some were ordered submitted for decision. Judge Vestil,
however, offered no explanation why there was delay in the court's action in these cases.

For her part, Atty. Cabahug reported that:

(1) they have already conducted an inventory of court records in the storage room to properly
give space for cases which are archived, disposed or decided cases;

(2) they made a list in separate logbooks - of the cases: (a) forwarded to the Supreme Court,
and the Court of Appeals; (b) those placed in the bodega; (c) transmitted to the Office of the
Clerk of Court; (d) newly filed and transferred from other courts; and (e) already disposed of,
decided or archived;

(3) they already gave instructions to the court clerks to note in the Semi Annual Inventory
Report the last action of the court in all the cases assigned to them;

(4) issued a memorandum to her staff members to seek permission and enter in the logbook
the time whenever they go out of the office during office hours;

(5) and suggested to have a staff meeting every Monday of the month to monitor the
concerns of their staff.

In a Resolution dated March 26, 2008, the Court granted the request of Judge Vestil for the release
of his retirement benefits, "provided the amount of One Hundred Thousand Pesos (₱100,000.00)
shall be retained/withheld therefrom to answer for whatever adverse decision the Court may impose
on him in relation to the instant case.

The audit team maintained, however, that except for Civil Case No. MAN-3084 and Criminal Cases
Nos. DU-9650 and DU-11862 which were inadvertently included as submitted for decision but were
in fact already decided or still pending trial, all other cases reported in the audit report suffered
undue delay in its disposition. While, Judge Vestil claimed that certain cases were decided within the
reglementary period, he, however, also admitted that while he was able to prepare the decisions, the
same remained unpromulgated within the reglementary period. With regard to the 247 dormant
cases, while he immediately acted upon its resolution, he however, offered no explanation for the
delay in the resolution thereof.

On August 8, 2007, Judge Vestil compulsorily retired from service.

Later, on July 6, 2009, the OCA, in its Report, found Judge Vestil guilty of undue delay in deciding
cases and recommended that a fine of twenty thousand pesos (₱20,000.00) be deducted from the
one hundred thousand pesos (₱100,000.00) previously withheld from his retirement benefits.
However, in so far as Atty. Cabahug is concerned, the instant matter was recommended to be
considered as closed and terminated.

On August 19, 2009, the Court resolved to consider the instant complaint CLOSED and
TERMINATED in so far as Atty. Cabahug is concerned.

On October 12, 2009, Judge Vestil manifested that since his retirement in 2007, he had already
undergone several medical examinations and presently his continuous medication costs at least
₱500.00 daily. Judge Vestil, thus, prays for the resolution of the instant complaint against him and
the subsequent release of the ₱100,000.00 which was previously withheld from his retirement
benefits upon his retirement.

We sustain the findings and recommendation of the OCA.

A review of the records would show the undisputed delay in the disposition of numerous cases
assigned to Branch 56 which was then presided by Judge Vestil. There were at least 80 civil cases,
some were filed as early as 1997, which are still pending as of March 2007. Furthermore, at least
100 criminal cases are still pending beyond the 90-day reglementary period.

In his defense, Judge Vestil sought refuge from the fact that Branch 56 was saddled with a heavy
caseload. We are, however, unconvinced. The Court knew the heavy caseloads heaped on the
shoulders of every trial judge. But such cannot excuse him from doing his mandated duty to resolve
cases with diligence and dispatch. Judges burdened with heavy caseloads should request the Court
for an extension of the reglementary period within which to decide their cases if they think they
cannot comply with their judicial duty. This, Judge Vestil failed to do. Corollarily, a heavy caseload
may excuse a judge’s failure to decide cases within the reglementary period but not their failure to
request an extension of time within which to decide the case on time.3 Hence, all that respondent
judge needs to do is request for an extension of time over which the Court has, almost customarily,
been considerate.

Moreover, as correctly pointed out by the OCA, it is not enough that he pens his decision; it is
imperative to promulgate the same within the mandated period. The lack of staff that will prepare
and type the decision is equally inexcusable to justify the delay in the promulgation of the cases.

We cannot overemphasize the Court’s policy on prompt resolution of disputes. Justice delayed is
justice denied. Failure to resolve cases submitted for decision within the period fixed by law
constitutes a serious violation of Section 16,4 Article III of the Constitution.

The honor and integrity of the judicial system is measured not only by the fairness and correctness
of decisions rendered, but also by the efficiency with which disputes are resolved. Thus, judges must
perform their official duties with utmost diligence if public confidence in the judiciary is to be
preserved. There is no excuse for mediocrity in the performance of judicial functions. The position of
judge exacts nothing less than faithful observance of the law and the Constitution in the discharge of
official duties.5

Furthermore, the proper and efficient court management is the responsibility of the judge, and he is
the one directly responsible for the proper discharge of his official functions.6 What we emphasized
before bears repeating: "It is the duty of a judge to take note of the cases submitted for his decision
or resolution and to see to it that the same are decided within the 90-day period fixed by law, and
failure to resolve a case within the required period constitutes gross inefficiency." "A judge ought to
know the cases submitted to him for decision or resolution and is expected to keep his own record of
cases so that he may act on them promptly." "The public trust character of his office imposes upon
him the highest degree of responsibility and efficiency."7 Accordingly, it is incumbent upon him to
devise an efficient recording and filing system in his court, so that no disorderliness can affect the
flow of cases and their speedy disposition.

Failure to render decisions and orders within the mandated period constitutes a violation of Rule
3.05,8 Canon 3, of the Code of Judicial Conduct, which then makes Judge Vestil liable
administratively. Section 9, Rule 140 of the Revised Rules of Court classifies undue delay in
rendering a decision or order as a less serious charge punishable under Section 11 (B) of the same
Rule.1avv phi 1

Here, considering that Judge Vestil had been previously administratively sanctioned for dereliction of
duty,9 the imposition of fine amounting to ₱40,000.00 is, thus, proper.

WHEREFORE, in view of all the foregoing, Judge Augustine A. Vestil is adjudged administratively
liable for failure to decide cases within the reglementary period and is hereby FINED in the amount
of ₱40,000.00, to be deducted from the ₱100,000.00 previously retained from his retirement
benefits. The Fiscal Management Office is DIRECTED to immediately release the balance of Judge
Vestil’s retirement benefits after such fine has been deducted therefrom.

SO ORDERED.

G.R. No. 202242 April 16, 2013

FRANCISCO I. CHAVEZ, Petitioner,

vs.
JUDICIALAND BAR COUNCIL, SEN. FRANCIS JOSEPH G. ESCUDERO and REP. NIEL C.
TUPAS, JR., Respondents.

RESOLUTION

MENDOZA, J.:

This resolves the Motion for Reconsideration1 filed by the Office of the Solicitor General (OSG) on
behalf of the respondents, Senator Francis Joseph G. Escudero and Congressman Niel C. Tupas,
Jr. (respondents), duly opposed2 by the petitioner, former Solicitor General Francisco I. Chavez
(petitioner).

By way of recapitulation, the present action stemmed from the unexpected departure of former Chief
Justice Renato C. Corona on May 29, 2012, and the nomination of petitioner, as his potential
successor. In his initiatory pleading, petitioner asked the Court to determine 1] whether the first
paragraph of Section 8, Article VIII of the 1987 Constitution allows more than one (1) member of
Congress to sit in the JBC; and 2] if the practice of having two (2) representatives from each House
of Congress with one (1) vote each is sanctioned by the Constitution.

On July 17, 2012, the Court handed down the assailed subject decision, disposing the same in the
following manner:
WHEREFORE, the petition is GRANTED. The current numerical composition of the Judicial and Bar
Council is declared UNCONSTITUTIONAL. The Judicial and Bar Council is hereby enjoined to
reconstitute itself so that only one (1) member of Congress will sit as a representative in its
proceedings, in accordance with Section 8(1), Article VIII of the 1987 Constitution.

This disposition is immediately executory.

SO ORDERED.

On July 31, 2012, following respondents’ motion for reconsideration and with due regard to Senate
Resolution Nos. 111,3 112,4 113,5 and 114,6 the Court set the subject motion for oral arguments on
August 2, 2012.7 On August 3, 2012, the Court discussed the merits of the arguments and agreed, in
the meantime, to suspend the effects of the second paragraph of the dispositive portion of the July
17, 2012 Decision which decreed that it was immediately executory. The decretal portion of the
August 3, 2012 Resolution8 reads:

WHEREFORE, the parties are hereby directed to submit their respective MEMORANDA within ten
(10) days from notice. Until further orders, the Court hereby SUSPENDS the effect of the second
paragraph of the dispositive portion of the Court’s July 17, 2012 Decision, which reads: "This
disposition is immediately executory."9

Pursuant to the same resolution, petitioner and respondents filed their respective memoranda.10

Brief Statement of the Antecedents

In this disposition, it bears reiterating that from the birth of the Philippine Republic, the exercise of
appointing members of the Judiciary has always been the exclusive prerogative of the executive and
legislative branches of the government. Like their progenitor of American origins, both the Malolos
Constitution11 and the 1935 Constitution12 vested the power to appoint the members of the Judiciary
in the President, subject to confirmation by the Commission on Appointments. It was during these
times that the country became witness to the deplorable practice of aspirants seeking confirmation of
their appointment in the Judiciary to ingratiate themselves with the members of the legislative body.13

Then, under the 1973 Constitution,14 with the fusion of the executive and legislative powers in one
body, the appointment of judges and justices ceased to be subject of scrutiny by another body. The
power became exclusive and absolute to the Executive, subject only to the condition that the
appointees must have all the qualifications and none of the disqualifications.

Prompted by the clamor to rid the process of appointments to the Judiciary of the evils of political
pressure and partisan activities,15 the members of the Constitutional Commission saw it wise to
create a separate, competent and independent body to recommend nominees to the President.

Thus, it conceived of a body, representative of all the stakeholders in the judicial appointment
process, and called it the Judicial and Bar Council (JBC). The Framers carefully worded Section 8,
Article VIII of the 1987 Constitution in this wise:

Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme
Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a
representative of the Congress as ex officio Members, a representative of the Integrated Bar, a
professor of law, a retired Member of the Supreme Court, and a representative of the private sector.
From the moment of the creation of the JBC, Congress designated one (1) representative to sit in
the JBC to act as one of the ex-officio members.16 Pursuant to the constitutional provision that
Congress is entitled to one (1) representative, each House sent a representative to the JBC, not
together, but alternately or by rotation.

In 1994, the seven-member composition of the JBC was substantially altered. An eighth member
1âwphi1

was added to the JBC as the two (2) representatives from Congress began sitting simultaneously in
the JBC, with each having one-half (1/2) of a vote.17

In 2001, the JBC En Banc decided to allow the representatives from the Senate and the House of
Representatives one full vote each.18 It has been the situation since then.

Grounds relied upon by Respondents

Through the subject motion, respondents pray that the Court reconsider its decision and dismiss the
petition on the following grounds: 1] that allowing only one representative from Congress in the JBC
would lead to absurdity considering its bicameral nature; 2] that the failure of the Framers to make
the proper adjustment when there was a shift from unilateralism to bicameralism was a plain
oversight; 3] that two representatives from Congress would not subvert the intention of the Framers
to insulate the JBC from political partisanship; and 4] that the rationale of the Court in declaring a
seven-member composition would provide a solution should there be a stalemate is not exactly
correct.

While the Court may find some sense in the reasoning in amplification of the third and fourth
grounds listed by respondents, still, it finds itself unable to reverse the assailed decision on the
principal issues covered by the first and second grounds for lack of merit. Significantly, the
conclusion arrived at, with respect to the first and second grounds, carries greater bearing in the final
resolution of this case.

As these two issues are interrelated, the Court shall discuss them jointly.

Ruling of the Court

The Constitution evinces the direct action of the Filipino people by which the fundamental powers of
government are established, limited and defined and by which those powers are distributed among
the several departments for their safe and useful exercise for the benefit of the body politic.19 The
Framers reposed their wisdom and vision on one suprema lex to be the ultimate expression of the
principles and the framework upon which government and society were to operate. Thus, in the
interpretation of the constitutional provisions, the Court firmly relies on the basic postulate that the
Framers mean what they say. The language used in the Constitution must be taken to have been
deliberately chosen for a definite purpose. Every word employed in the Constitution must be
interpreted to exude its deliberate intent which must be maintained inviolate against disobedience
and defiance. What the Constitution clearly says, according to its text, compels acceptance and bars
modification even by the branch tasked to interpret it.

For this reason, the Court cannot accede to the argument of plain oversight in order to justify
constitutional construction. As stated in the July 17, 2012 Decision, in opting to use the singular
letter "a" to describe "representative of Congress," the Filipino people through the Framers intended
that Congress be entitled to only one (1) seat in the JBC. Had the intention been otherwise, the
Constitution could have, in no uncertain terms, so provided, as can be read in its other provisions.
A reading of the 1987 Constitution would reveal that several provisions were indeed adjusted as to
be in tune with the shift to bicameralism. One example is Section 4, Article VII, which provides that a
tie in the presidential election shall be broken "by a majority of all the Members of both Houses of the
Congress, voting separately."20 Another is Section 8 thereof which requires the nominee to replace
the Vice-President to be confirmed "by a majority of all the Members of both Houses of the
Congress, voting separately."21 Similarly, under Section 18, the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus may be revoked or continued by the
Congress, voting separately, by a vote of at least a majority of all its Members."22 In all these
provisions, the bicameral nature of Congress was recognized and, clearly, the corresponding
adjustments were made as to how a matter would be handled and voted upon by its two Houses.

Thus, to say that the Framers simply failed to adjust Section 8, Article VIII, by sheer inadvertence, to
their decision to shift to a bicameral form of the legislature, is not persuasive enough. Respondents
cannot just lean on plain oversight to justify a conclusion favorable to them. It is very clear that the
Framers were not keen on adjusting the provision on congressional representation in the JBC
because it was not in the exercise of its primary function – to legislate. JBC was created to support
the executive power to appoint, and Congress, as one whole body, was merely assigned a
contributory non-legislative function.

The underlying reason for such a limited participation can easily be discerned. Congress has two (2)
Houses. The need to recognize the existence and the role of each House is essential considering
that the Constitution employs precise language in laying down the functions which particular House
plays, regardless of whether the two Houses consummate an official act by voting jointly or
separately. Whether in the exercise of its legislative23 or its non-legislative functions such as inter
alia, the power of appropriation,24 the declaration of an existence of a state of war,25 canvassing of
electoral returns for the President and Vice-President,26 and impeachment,27 the dichotomy of each
House must be acknowledged and recognized considering the interplay between these two Houses.
In all these instances, each House is constitutionally granted with powers and functions peculiar to
its nature and with keen consideration to 1) its relationship with the other chamber; and 2) in
consonance with the principle of checks and balances, as to the other branches of government.

In checkered contrast, there is essentially no interaction between the two Houses in their
participation in the JBC. No mechanism is required between the Senate and the House of
Representatives in the screening and nomination of judicial officers. Rather, in the creation of the
JBC, the Framers arrived at a unique system by adding to the four (4) regular members, three (3)
representatives from the major branches of government - the Chief Justice as ex-officio Chairman
(representing the Judicial Department), the Secretary of Justice (representing the Executive
Department), and a representative of the Congress (representing the Legislative Department). The
total is seven (7), not eight. In so providing, the Framers simply gave recognition to the Legislature,
not because it was in the interest of a certain constituency, but in reverence to it as a major branch
of government.

On this score, a Member of Congress, Hon. Simeon A. Datumanong, from the Second District of
Maguindanao, submitted his well-considered position28 to then Chief Justice Reynato S. Puno:

I humbly reiterate my position that there should be only one representative of Congress in the JBC in
accordance with Article VIII, Section 8 (1) of the 1987 Constitution x x x.

The aforesaid provision is clear and unambiguous and does not need any further interpretation.
Perhaps, it is apt to mention that the oft-repeated doctrine that "construction and interpretation come
only after it has been demonstrated that application is impossible or inadequate without them."
Further, to allow Congress to have two representatives in the Council, with one vote each, is to
negate the principle of equality among the three branches of government which is enshrined in the
Constitution.

In view of the foregoing, I vote for the proposition that the Council should adopt the rule of single
representation of Congress in the JBC in order to respect and give the right meaning to the above-
quoted provision of the Constitution. (Emphases and underscoring supplied)

On March 14, 2007, then Associate Justice Leonardo A. Quisumbing, also a JBC Consultant,
submitted to the Chief Justice and ex-officio JBC Chairman his opinion,29 which reads:

8. Two things can be gleaned from the excerpts and citations above: the creation of the JBC is
intended to curtail the influence of politics in Congress in the appointment of judges, and the
understanding is that seven (7) persons will compose the JBC. As such, the interpretation of two
votes for Congress runs counter to the intendment of the framers. Such interpretation actually gives
Congress more influence in the appointment of judges. Also, two votes for Congress would increase
the number of JBC members to eight, which could lead to voting deadlock by reason of even-
numbered membership, and a clear violation of 7 enumerated members in the Constitution.
(Emphases and underscoring supplied)

In an undated position paper,30 then Secretary of Justice Agnes VST Devanadera opined:

As can be gleaned from the above constitutional provision, the JBC is composed of seven (7)
representatives coming from different sectors. From the enumeration it is patent that each category
of members pertained to a single individual only. Thus, while we do not lose sight of the bicameral
nature of our legislative department, it is beyond dispute that Art. VIII, Section 8 (1) of the 1987
Constitution is explicit and specific that "Congress" shall have only "xxx a representative." Thus, two
(2) representatives from Congress would increase the number of JBC members to eight (8), a
number beyond what the Constitution has contemplated. (Emphases and underscoring supplied)

In this regard, the scholarly dissection on the matter by retired Justice Consuelo Ynares-Santiago, a
former JBC consultant, is worth reiterating.31 Thus:

A perusal of the records of the Constitutional Commission reveals that the composition of the JBC
reflects the Commission’s desire "to have in the Council a representation for the major elements of
the community." xxx The ex-officio members of the Council consist of representatives from the three
main branches of government while the regular members are composed of various stakeholders in
the judiciary. The unmistakeable tenor of Article VIII, Section 8(1) was to treat each ex-officio
member as representing one co-equal branch of government. xxx Thus, the JBC was designed to
have seven voting members with the three ex-officio members having equal say in the choice of
judicial nominees.

xxx

No parallelism can be drawn between the representative of Congress in the JBC and the exercise by
Congress of its legislative powers under Article VI and constituent powers under Article XVII of the
Constitution. Congress, in relation to the executive and judicial branches of government, is
constitutionally treated as another co-equal branch in the matter of its representative in the JBC. On
the other hand, the exercise of legislative and constituent powers requires the Senate and the House
of Representatives to coordinate and act as distinct bodies in furtherance of Congress’ role under
our constitutional scheme. While the latter justifies and, in fact, necessitates the separateness of the
two Houses of Congress as they relate inter se, no such dichotomy need be made when Congress
interacts with the other two co-equal branches of government.

It is more in keeping with the co-equal nature of the three governmental branches to assign the
same weight to considerations that any of its representatives may have regarding aspiring nominees
to the judiciary. The representatives of the Senate and the House of Representatives act as such for
one branch and should not have any more quantitative influence as the other branches in the
exercise of prerogatives evenly bestowed upon the three. Sound reason and principle of equality
among the three branches support this conclusion. [Emphases and underscoring supplied]

The argument that a senator cannot represent a member of the House of Representatives in the
JBC and vice-versa is, thus, misplaced. In the JBC, any member of Congress, whether from the
Senate or the House of Representatives, is constitutionally empowered to represent the entire
Congress. It may be a constricted constitutional authority, but it is not an absurdity.

From this score stems the conclusion that the lone representative of Congress is entitled to one full
vote. This pronouncement effectively disallows the scheme of splitting the said vote into half (1/2),
between two representatives of Congress. Not only can this unsanctioned practice cause disorder in
the voting process, it is clearly against the essence of what the Constitution authorized. After all,
basic and reasonable is the rule that what cannot be legally done directly cannot be done indirectly.
To permit or tolerate the splitting of one vote into two or more is clearly a constitutional
circumvention that cannot be countenanced by the Court. Succinctly put, when the Constitution
envisioned one member of Congress sitting in the JBC, it is sensible to presume that this
representation carries with him one full vote.

It is also an error for respondents to argue that the President, in effect, has more influence over the
JBC simply because all of the regular members of the JBC are his appointees. The principle of
checks and balances is still safeguarded because the appointment of all the regular members of the
JBC is subject to a stringent process of confirmation by the Commission on Appointments, which is
composed of members of Congress.

Respondents’ contention that the current irregular composition of the JBC should be accepted,
simply because it was only questioned for the first time through the present action, deserves scant
consideration. Well-settled is the rule that acts done in violation of the Constitution no matter how
frequent, usual or notorious cannot develop or gain acceptance under the doctrine of estoppel or
laches, because once an act is considered as an infringement of the Constitution it is void from the
very beginning and cannot be the source of any power or authority.

It would not be amiss to point out, however, that as a general rule, an unconstitutional act is not a
law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is
inoperative as if it has not been passed at all. This rule, however, is not absolute. Under the doctrine
of operative facts, actions previous to the declaration of unconstitutionality are legally recognized.
They are not nullified. This is essential in the interest of fair play. To reiterate the doctrine enunciated
in Planters Products, Inc. v. Fertiphil Corporation:32

The doctrine of operative fact, as an exception to the general rule, only applies as a matter of equity
and fair play. It nullifies the effects of an unconstitutional law by recognizing that the existence of a
statute prior to a determination of unconstitutionality is an operative fact and may have
consequences which cannot always be ignored. The past cannot always be erased by a new judicial
declaration. The doctrine is applicable when a declaration of unconstitutionality will impose an undue
burden on those who have relied on the invalid law. Thus, it was applied to a criminal case when a
declaration of unconstitutionality would put the accused in double jeopardy or would put in limbo the
acts done by a municipality in reliance upon a law creating it.33

Under the circumstances, the Court finds the exception applicable in this case and holds that
notwithstanding its finding of unconstitutionality in the current composition of the JBC, all its prior
official actions are nonetheless valid.

Considering that the Court is duty bound to protect the Constitution which was ratified by the direct
action of the Filipino people, it cannot correct what respondents perceive as a mistake in its
mandate. Neither can the Court, in the exercise of its power to interpret the spirit of the Constitution,
read into the law something that is contrary to its express provisions and justify the same as
correcting a perceived inadvertence. To do so would otherwise sanction the Court action of making
amendment to the Constitution through a judicial pronouncement.

In other words, the Court cannot supply the legislative omission. According to the rule of casus
omissus "a case omitted is to be held as intentionally omitted."34 "The principle proceeds from a
reasonable certainty that a particular person, object or thing has been omitted from a legislative
enumeration."35 Pursuant to this, "the Court cannot under its power of interpretation supply the
omission even though the omission may have resulted from inadvertence or because the case in
question was not foreseen or contemplated."36 "The Court cannot supply what it thinks the legislature
would have supplied had its attention been called to the omission, as that would be judicial
legislation."37

Stated differently, the Court has no power to add another member by judicial construction.

The call for judicial activism fails to stir the sensibilities of the Court tasked to guard the Constitution
against usurpation. The Court remains steadfast in confining its powers in the sphere granted by the
Constitution itself. Judicial activism should never be allowed to become judicial exuberance.38 In
cases like this, no amount of practical logic or convenience can convince the Court to perform either
an excision or an insertion that will change the manifest intent of the Framers. To broaden the scope
of congressional representation in the JBC is tantamount to the inclusion of a subject matter which
was not included in the provision as enacted. True to its constitutional mandate, the Court cannot
craft and tailor constitutional provisions in order to accommodate all of situations no matter how ideal
or reasonable the proposed solution may sound. To the exercise of this intrusion, the Court declines.

WHEREFORE, the Motion for Reconsideration filed by respondents is hereby DENIED.

The suspension of the effects of the second paragraph of the dispositive portion of the July 17, 2012
Decision of the Court, which reads, "This disposition is immediately executory," is hereby LIFTED.

SO ORDERED.
G.R. No. 213181 August 19, 2014

FRANCIS H. JARDELEZA Petitioner,

vs.
CHIEF JUSTICE MARIA LOURDES P. A. SERENO, THE JUDICIAL AND BAR COUNCIL AND
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., Respondents.

DECISION

MENDOZA, J.:

Once again, the Couii is faced with a controversy involving the acts of an independent body, which is
considered as a constitutional innovation the Judicial and Bar Council (JBC). It is not the first time
that the Court is called upon to settle legal questions surrounding the JBC's exercise of its
constitutional mandate. In De Castro v. JBC,1 the Court laid to rest issues such as the duty of the
JBC to recommend prospective nominees for the position of Chief Justice vis-à-vis the appointing
power of the President, the period within which the same may be exercised, and the ban on midnight
appointments as set forth in the Constitution. In Chavez v. JBC,2 the Court provided an extensive
discourse on constitutional intent as to the JBC’s composition and membership.

This time, however, the selection and nomination process actually undertaken by the JBC is being
challenged for being constitutionally infirm. The heart of the debate lies not only on the very
soundness and validity of the application of JBC rules but also the extent of its discretionary power.
More significantly, this case of first impression impugns the end-result of its acts - the shortlistfrom
which the President appoints a deserving addition to the Highest Tribunal of the land.

To add yet another feature of noveltyto this case, a member of the Court, no less than the Chief
Justice herself, was being impleaded as party respondent.

The Facts

The present case finds its genesis from the compulsory retirement of Associate Justice Roberto
Abad (Associate Justice Abad) last May 22, 2014. Before his retirement, on March 6, 2014, in
accordance with its rules,3 the JBC announced the opening for application or recommendation for the
said vacated position.

On March 14, 2014, the JBC received a letter from Dean Danilo Concepcion of the University of the
Philippines nominating petitioner Francis H. Jardeleza (Jardeleza), incumbent Solicitor General of
the Republic, for the said position. Upon acceptance of the nomination, Jardeleza was included in
the names of candidates, as well as in the schedule of public interviews. On May 29, 2014,
Jardeleza was interviewed by the JBC.

It appears from the averments in the petition that on June 16 and 17, 2014, Jardeleza received
telephone callsfrom former Court of Appeals Associate Justice and incumbent JBC member, Aurora
Santiago Lagman (Justice Lagman), who informed him that during the meetings held on June 5 and
16, 2014, Chief Justice and JBC ex-officioChairperson, Maria Lourdes P.A. Sereno (Chief Justice
Sereno),manifested that she would be invoking Section 2, Rule 10 of JBC-0094 against him.
Jardeleza was then directed to "make himself available" before the JBC on June 30, 2014, during
which he would be informed of the objections to his integrity.
Consequently, Jardeleza filed a letter-petition (letter-petition)5 praying that the Court, in the exercise
of itsconstitutional power of supervision over the JBC, issue an order: 1) directing the JBC to give
him at least five (5) working days written notice of any hearing of the JBC to which he would be
summoned; and the said notice to contain the sworn specifications of the charges against him by his
oppositors, the sworn statements of supporting witnesses, if any, and copies of documents in
support of the charges; and notice and sworn statements shall be made part of the public record of
the JBC; 2) allowing him to cross-examine his oppositors and supporting witnesses, if any, and the
cross-examination to be conducted in public, under the same conditions that attend the
publicinterviews held for all applicants; 3) directing the JBC to reset the hearing scheduled on June
30, 2014 to another date; and 4) directing the JBC to disallow Chief Justice Sereno from
participating in the voting on June 30,2014 or at any adjournment thereof where such vote would be
taken for the nominees for the position vacated by Associate Justice Abad.

During the June 30, 2014 meeting of the JBC, sansJardeleza, incumbent Associate Justice Antonio
T. Carpio (Associate Justice Carpio) appeared as a resource person to shed light on a classified
legal memorandum (legal memorandum) that would clarify the objection to Jardeleza’s integrity as
posed by Chief Justice Sereno. According to the JBC, Chief Justice Sereno questioned Jardeleza’s
ability to discharge the duties of his office as shown in a confidential legal memorandum over his
handling of an international arbitration case for the government.

Later, Jardeleza was directed to one of the Court’s ante-rooms where Department of Justice
Secretary Leila M. De Lima (Secretary De Lima) informed him that Associate Justice Carpio
appeared before the JBC and disclosed confidential information which, to Chief Justice Sereno,
characterized his integrity as dubious. After the briefing, Jardeleza was summoned by the JBC at
around 2:00o’clock in the afternoon.

Jardeleza alleged that he was asked by Chief Justice Sereno if he wanted to defend himself against
the integrity issues raised against him. He answered that he would defend himself provided that due
process would be observed. Jardeleza specifically demanded that Chief Justice Sereno execute a
sworn statement specifying her objectionsand that he be afforded the right to cross-examine her in a
public hearing. He requested that the same directive should also be imposed on Associate Justice
Carpio. As claimed by the JBC, Representative Niel G. Tupas Jr. also manifested that he wanted to
hear for himself Jardeleza’s explanation on the matter. Jardeleza, however, refused as he would not
be lulled intowaiving his rights. Jardeleza then put into record a written statement6 expressing his
views on the situation and requested the JBC to defer its meeting considering that the Court en banc
would meet the next day to act on his pending letter-petition. At this juncture, Jardeleza was
excused.

Later in the afternoon of the sameday, and apparently denying Jardeleza’s request for deferment of
the proceedings, the JBC continued its deliberations and proceeded to vote for the nominees to be
included in the shortlist. Thereafter, the JBC releasedthe subject shortlist of four (4) nominees which
included: Apolinario D. Bruselas, Jr. with six (6) votes, Jose C. Reyes, Jr. with six (6) votes, Maria
Gracia M. Pulido Tan with five (5) votes, and Reynaldo B. Daway with four (4) votes.7

As mentioned in the petition, a newspaper article was later published in the online portal of the
Philippine Daily Inquirer, stating that the Court’s Spokesman, Atty. Theodore Te, revealed that there
were actually five (5) nominees who made it to the JBC shortlist, but one (1) nominee could not be
included because of the invocation of Rule 10, Section 2 of the JBC rules.

In its July 8, 2014 Resolution, the Court noted Jardeleza’s letterpetition in view of the transmittal of
the JBC list of nominees to the Office of the President, "without prejudice to any remedy available in
law and the rules that petitioner may still wish to pursue."8 The said resolution was accompanied by
an extensive Dissenting Opinion penned by Associate Justice Arturo D. Brion,9 expressing his
respectful disagreement as to the position taken by the majority.

The Petition

Perceptibly based on the aforementioned resolution’s declaration as to his availment of a remedy in

law, Jardeleza filed the present petition for certiorari and mandamus under Rule 65 of the Rules of
Court with prayer for the issuance of a Temporary Restraining Order (TRO), seeking to compel the
JBC to include him in the list ofnominees for Supreme Court Associate Justice viceAssociate Justice
Abad, on the grounds that the JBC and Chief Justice Sereno acted in grave abuse of discretion
amounting to lack or excess of jurisdiction in excluding him, despite having garnered a sufficient
number of votes to qualify for the position.

Notably, Jardeleza’s petition decries that despite the obvious urgency of his earlier letter-petition and
its concomitant filing on June 25, 2014, the same was raffled only on July 1, 2014 or a day after the
controversial JBC meeting. By the time that his letter-petition was scheduled for deliberation by the
Court en bancon July 8, 2014, the disputedshortlist had already been transmitted to the Office of the
President. He attributedthis belated action on his letter-petition to Chief Justice Sereno, whose
action on such matters, especially those impressed withurgency, was discretionary.

An in-depth perusal of Jardeleza’s petition would reveal that his resort to judicial intervention hinges
on the alleged illegality of his exclusion from the shortlist due to: 1) the deprivation of his
constitutional right to due process; and 2) the JBC’s erroneous application, if not direct violation, of
its own rules. Suffice it to say, Jardelezadirectly ascribes the supposed violation of his constitutional
rights tothe acts of Chief Justice Sereno in raising objections against his integrity and the manner by
which the JBC addressed this challenge to his application, resulting in his arbitrary exclusion from
the list of nominees.

Jardeleza’s Position

For a better understanding of the above postulates proffered in the petition, the Court hereunder
succinctlysummarizes Jardeleza’s arguments, as follows:

A. Chief Justice Sereno and the JBC violated Jardeleza’s right to due process in the events leading
up to and during the vote on the shortlist last June 30, 2014. When accusations against his integrity
were made twice, ex parte, by Chief Justice Sereno, without informing him of the nature and cause
thereof and without affording him an opportunity to be heard, Jardeleza was deprived of his right to
due process. In turn, the JBC violated his right to due process when he was simply ordered to make
himself available on the June 30, 2014 meeting and was told that the objections to his integrity would
be made known to him on the same day. Apart from mere verbal notice (by way of a telephone call)
of the invocation of Section 2, Rule 10 of JBC-009 against his application and not on the accusations
against him per se, he was deprived of an opportunity to mount a proper defense against it. Not only
did the JBC fail to ventilate questions on his integrity during his public interview, he was also
divested of his rights as an applicant under Sections 3 and 4, Rule 4, JBC-009, to wit:

Section 3. Testimony of parties. – The Council may receive written opposition to an applicant on the
ground of his moral fitness and, at its discretion, the Council may receive the testimony of the
oppositor at a hearing conducted for the purpose, with due notice to the applicant who shall be
allowed to cross-examine the oppositor and to offer countervailing evidence.

Section 4. Anonymous Complaints. – Anonymous complaints against an applicant shall not be given
due course, unless there appears on its face a probable cause sufficient to engender belief that the
allegations may be true. In the latter case, the Council may direct a discreet investigation or require
the applicant to comment thereon in writing or during the interview.

His lack of knowledge as to the identity of his accusers (except for yet again, the verbalinformation
conveyed to him that Associate Justice Carpio testified against him) and as to the nature of the very
accusations against him caused him to suffer from the arbitrary action by the JBC and Chief Justice
Sereno. The latter gravely abused her discretion when she acted as prosecutor, witness and
judge,thereby violating the very essence of fair play and the Constitution itself. In his words: "the sui
generis nature of JBC proceedings does not authorize the Chief Justice to assume these roles, nor
does it dispense with the need to honor petitioner’s right to due process."10

B. The JBC committed grave abuse of discretion in excluding Jardeleza from the shortlist of
nominees, in violation of its own rules. The "unanimity requirement" provided under Section 2,
Rule10 of JBC-009 does not find application when a member of the JBC raises an objection to an
applicant’s integrity. Here, the lone objector constituted a part of the membership of the body set to
vote. The lone objector could be completely capable oftaking hostage the entire voting process by
the mere expediency of raising an objection. Chief Justice Sereno’s interpretation of the rule would
allow a situation where all thata member has to do to veto other votes, including majority votes,
would be to object to the qualification of a candidate, without need for factual basis.

C. Having secured the sufficient number of votes, it was ministerial on the part of the JBC to include
Jardeleza in the subject shortlist.Section 1, Rule 10 of JBC-009 provides that a nomination for
appointment to a judicial position requires the affirmative vote of at least a majority of all members of
the JBC. The JBC cannot disregard its own rules. Considering that Jardeleza was able to secure
four (4) out of six (6) votes, the only conclusion is that a majority of the members of the JBC found
him to be qualified for the position of Associate Justice.

D. The unlawful exclusion ofthe petitioner from the subject shortlist impairs the President’s
constitutional power to appoint.Jardeleza’s exclusion from the shortlist has unlawfully narrowed the
President’s choices. Simply put, the President would be constrained to choose from among four (4)
nominees, when five (5) applicants rightfully qualified for the position. This limits the President to
appoint a member of the Court from a list generated through a process tainted with patent
constitutional violations and disregard for rules of justice and fair play. Until these constitutional
infirmities are remedied, the petitioner has the right to prevent the appointment of an Associate
Justice viceAssociate Justice Abad.

Comment of the JBC

On August 11, 2014, the JBC filed its comment contending that Jardeleza’s petition lacked
proceduraland substantive bases that would warrant favorable action by the Court. For the JBC,
certiorariis only available against a tribunal, a board or an officer exercising judicial or quasijudicial
functions.11 The JBC, in its exercise of its mandate to recommend appointees to the Judiciary, does
not exercise any of these functions. In a pending case,12 Jardeleza himself, as one of the lawyers for
the government, argued in this wise: Certioraricannot issue against the JBC in the implementation of
its policies.

In the same vein, the remedy of mandamusis incorrect. Mandamus does not lie to compel a
discretionary act. For it to prosper, a petition for mandamus must, among other things, show that the
petitioner has a clear legal right to the act demanded. In Jardeleza’s case, there is no legal right to
be included in the list of nominees for judicial vacancies. Possession of the constitutional and
statutory qualifications for appointment to the Judiciary may not be used to legally demand that one’s
name be included in the list of candidates for a judicial vacancy. One’s inclusion in the shortlist is
strictly within the discretion of the JBC.

Anent the substantive issues, the JBC mainly denied that Jardeleza was deprived of due process.
The JBC reiterated that Justice Lagman, on behalf of the JBC en banc, called Jardeleza and
informed him that Chief Justice Sereno would be invoking Section 2, Rule 10 of JBC-009 due to a
question on his integrity based on the way he handled a very important case for the government.
Jardeleza and Justice Lagman spoke briefly about the case and his general explanation on how he
handled the same. Secretary De Lima likewise informed him about the content of the impending
objection against his application. On these occasions, Jardeleza agreed to explain himself. Come
the June 30, 2014 meeting, however, Jardeleza refused to shed light on the allegations against
him,as he chose to deliver a statement, which, in essence, requested that his accuser and her
witnesses file sworn statements so that he would know of the allegations against him, that he be
allowed to cross-examine the witnesses;and that the procedure be done on record and in public.

In other words, Jardeleza was given ample opportunity to be heard and to enlighten each member of
the JBC on the issues raised against him prior to the voting process. His request for a sworn
statement and opportunity to cross-examine is not supported by a demandable right. The JBC is not
a fact-finding body. Neitheris it a court nor a quasi-judicial agency. The members are notconcerned
with the determination of his guilt or innocence of the accusations against him. Besides, Sections 3
and 4, Rule 10,JBC-009 are merely directory as shown by the use of the word "may." Even the
conduct of a hearing to determine the veracity of an opposition is discretionary on the JBC.
Ordinarily, if there are other ways of ascertaining the truth or falsity of an allegation or opposition, the
JBC would not call a hearing in order to avoid undue delay of the selection process. Each member of
the JBC relies on his or her own appreciation of the circumstances and qualifications of applicants.

The JBC then proceeded to defend adherence to its standing rules. As a general rule, an applicant is
included in the shortlist when he or she obtains an affirmative vote of at least a majority of all the
members of the JBC. When Section 2, Rule 10 of JBC-009,however, is invoked because an
applicant’s integrity is challenged, a unanimous vote is required. Thus, when Chief Justice Sereno
invoked the saidprovision, Jardeleza needed the affirmative vote of all the JBC members tobe
included in the shortlist. In the process, Chief Justice Sereno’s vote against Jardeleza was not
counted. Even then, he needed the votes of the five(5) remaining members. He only got four (4)
affirmative votes. As a result,he was not included in the shortlist. Applicant Reynaldo B. Daway, who
gotfour (4) affirmative votes, was included in the shortlist because his integrity was not challenged.
As to him, the "majority rule" was considered applicable.

Lastly, the JBC rued that Jardeleza sued the respondents in his capacity as Solicitor General.
Despiteclaiming a prefatory appearance in propria persona, all pleadings filed with the Court were
signed in his official capacity. In effect, he sued the respondents to pursue a purely private interest
while retaining the office of the Solicitor General. By suing the very parties he was tasked by law to
defend, Jardeleza knowingly placed himself in a situation where his personal interests collided
against his public duties, in clear violation of the Code of Professional Responsibility and Code of
Professional Ethics. Moreover, the respondents are all public officials being sued in their official
capacity. By retaining his title as Solicitor General, and suing in the said capacity, Jardeleza filed a
suit against his own clients, being the legal defender of the government and its officers. This runs
contrary to the fiduciary relationship sharedby a lawyer and his client.

In opposition to Jardeleza’s prayer for the issuance of a TRO, the JBC called to mind the
constitutional period within which a vacancy in the Court must be filled. As things now stand, the
President has until August 20, 2014 to exercise his appointment power which cannot be restrained
by a TRO or an injunctive suit.
 Comment of the Executive Secretary

In his Comment, Executive Secretary Paquito N. Ochoa Jr. (Executive Secretary)raised the possible
unconstitutionality of Section 2, Rule 10 of JBC-009, particularly the imposition ofa higher voting
threshold in cases where the integrity of an applicant is challenged. It is his position that the subject
JBC rule impairs the body’s collegial character, which essentially operates on the basis of majority
rule. The application of Section 2, Rule 10 of JBC-009 gives rise to a situation where all that a
member needs to do, in order to disqualify an applicant who may well have already obtained a
majority vote, is to object to his integrity. In effect, a member who invokes the said provision is given
a veto powerthat undermines the equal and full participation of the other members in the nomination
process. A lone objector may then override the will ofthe majority, rendering illusory, the collegial
nature of the JBC and the very purpose for which it was created— to shield the appointment process
from political maneuvering. Further, Section 2, Rule 10 of JBC-009 may beviolative of due process
for it does not allow an applicant any meaningful opportunity to refute the challenges to his integrity.
While other provisions of the JBC rules provide mechanisms enabling an applicant to comment on
an opposition filed against him, the subject rule does not afford the same opportunity. In this case,
Jardeleza’s allegations as to the events which transpired on June 30, 2014 obviously show that he
was neither informed ofthe accusations against him nor given the chance to muster a defense
thereto.

The Executive Secretary then offered a supposition: granting that the subject provision is held to be
constitutional, the "unanimity rule" would only be operative when the objector is not a member of the
JBC. It is only in this scenario where the voting ofthe body would not be rendered inconsequential. In
the event that a JBC member raised the objection, what should have been applied is the general rule
of a majority vote, where any JBC member retains their respective reservations to an application
with a negative vote. Corollary thereto, the unconstitutionality of the said rule would necessitate the
inclusion of Jardeleza in the shortlist submitted to the President.

Other pleadings

On August 12, 2014, Jardeleza was given the chance to refute the allegations of the JBC in its
Comment. He submitted his Reply thereto on August 15, 2014. A few hours thereafter, orbarely ten
minutes prior to the closing of business, the Court received the Supplemental Comment-Reply of the
JBC, this time with the attached minutes of the proceedings that led to the filing of the petition,and a
detailed "Statementof the Chief Justice on the Integrity Objection."13 Obviously, Jardeleza’s Reply
consisted only of his arguments against the JBC’s original Comment, as it was filed prior to the filing
of the Supplemental Comment-Reply.

At the late stage of the case, two motions to admit comments-inintervention/oppositions-in-

intervention were filed. One was by Atty. Purificacion S. Bartolome-Bernabe, purportedly the
President of the Integrated Bar of the Philippines-Bulacan Chapter. This pleading echoed the
position of the JBC.14

The other one was filed by Atty. Reynaldo A. Cortes, purportedly a former President of the IBP
Baguio-Benguet Chapter and former Governor of the IBP-Northern Luzon. It was coupled with a
complaint for disbarment against Jardeleza primarily for violations of the Code of Professional
Responsibility for representing conflicting interests.15

Both motions for intervention weredenied considering that time was of the essence and their motions
were merely reiterative of the positions of the JBC and were perceived to be dilatory. The complaint
for disbarment, however, was re-docketed as a separate administrative case.
 The Issues

Amidst a myriad of issues submitted by the parties, most of which are interrelated such that the
resolution of one issue would necessarily affect the conclusion as to the others, the Court opts to
narrow down the questions to the very source of the discord - the correct application of Section 2,
Rule 10 JBC-009 and its effects, if any, on the substantive rights of applicants.

The Court is not unmindful of the fact that a facial scrutiny of the petition does not directly raise the
unconstitutionality of the subject JBC rule. Instead, it bewails the unconstitutional effects of its
application. It is only from the comment of the Executive Secretary where the possible
unconstitutionality of the rulewas brought to the fore. Despite this milieu, a practical approach
dictatesthat the Court must confront the source of the bleeding from which the gaping wound
presented to the Court suffers.

The issues for resolution are:

I.

WHETHER OR NOT THE COURT CAN ASSUME JURISDICTION AND GIVE DUECOURSE TO
THE SUBJECT PETITION FOR CERTIORARI AND MANDAMUS (WITH APPLICATION FOR A
TEMPORARY RESTRAINING ORDER).

II

WHETHER OR NOT THE ISSUES RAISED AGAINST JARDELEZA BEFIT "QUESTIONS OR

CHALLENGES ON INTEGRITY" AS CONTEMPLATED UNDER SECTION 2, RULE 10 OF JBC-
009.

II.

WHETHER OR NOT THE RIGHT TO DUE PROCESS IS AVAILABLE IN THE COURSE OF JBC
PROCEEDINGS IN CASES WHERE AN OBJECTION OR OPPOSITION TO AN APPLICATION IS
RAISED.

III.

WHETHER OR NOT PETITIONER JARDELEZA MAY BE INCLUDED IN THE SHORTLIST OF

NOMINEES SUBMITTED TO THE PRESIDENT.

The Court’s Ruling

I – Procedural Issue: The Court has constitutional bases to assume jurisdiction over the case

A - The Court’s Power of Supervision over the JBC

Section 8, Article VIII of the 1987 Constitution provides for the creation of the JBC. The Court was
given supervisory authority over it. Section 8 reads:

Section 8.
A Judicial and Bar Council is hereby created under the supervision of the Supreme Courtcomposed
of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the
Congress as ex officio Members, a representative of the Integrated Bar, a professor of law, a retired
Member of the Supreme Court, and a representative of the private sector. [Emphasis supplied]

As a meaningful guidepost, jurisprudence provides the definition and scope of supervision. It is the
power of oversight, or the authority to see that subordinate officers perform their duties.It ensures
that the laws and the rules governing the conduct of a government entity are observed and complied
with. Supervising officials see to it that rules are followed, but they themselves do not lay down such
rules, nor do they have the discretion to modify or replace them. If the rules are not observed, they
may order the work done or redone, but only to conform to such rules. They may not prescribe their
own manner of execution of the act. They have no discretion on this matter except to see to it that
the rules are followed.16

Based on this, the supervisory authority of the Court over the JBC covers the overseeing of
compliance with its rules. In this case, Jardeleza’s principal allegations in his petition merit the
exercise of this supervisory authority.

B- Availability of the Remedy of Mandamus

The Court agrees with the JBC that a writ of mandamus is not available. "Mandamuslies to compel
the performance, when refused, of a ministerial duty, but not to compel the performance of a
discretionary duty. Mandamuswill not issue to control or review the exercise of discretion of a public
officer where the law imposes upon said public officer the right and duty to exercise his judgment in
reference to any matter in which he is required to act. It is his judgment that is to be exercised and
not that of the court.17 There is no question that the JBC’s duty to nominate is discretionary and it
may not becompelled to do something.

C- Availability of the Remedy of Certiorari

Respondent JBC opposed the petition for certiorarion the ground that it does not exercise judicial or
quasi-judicial functions. Under Section 1 of Rule 65, a writ of certiorariis directed against a tribunal
exercising judicial or quasi-judicial function. "Judicial functions are exercised by a body or officer
clothed with authority to determine what the law is and what the legal rights of the parties are with
respect to the matter in controversy. Quasijudicial function is a term that applies to the action or
discretion of public administrative officers or bodies given the authority to investigate facts or
ascertain the existence of facts, hold hearings, and draw conclusions from them as a basis for their
official action using discretion of a judicial nature."18 It asserts that in the performance of its function
of recommending appointees for the judiciary, the JBC does not exercise judicial or quasijudicial
functions. Hence, the resort tosuch remedy to question its actions is improper.

In this case, Jardeleza cries that although he earned a qualifying number of votes in the JBC, it was
negated by the invocation of the "unanimity rule" on integrity in violation of his right to due process
guaranteed not only by the Constitution but by the Council’s own rules. For said reason, the Court is
of the position that it can exercise the expanded judicial power of review vestedupon it by the 1987
Constitution. Thus:

Article VIII.

Section 1. The judicial power is 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.

It has been judicially settled that a petition for certiorari is a proper remedy to question the act of any
branch or instrumentality of the government on the ground of grave abuse of discretion amounting to
lack or excess of jurisdiction by any branch orinstrumentality of the government, even if the latter
does not exercise judicial, quasi-judicial or ministerial functions.19

In a case like this, where constitutional bearings are too blatant to ignore, the Court does not find
passivity as an alternative. The impassemust be overcome.

II – Substantial Issues

Examining the Unanimity Rule of the JBC in cases where an applicant’s integrity is challenged

The purpose of the JBC’s existence is indubitably rooted in the categorical constitutional declaration
that"[a] member of the judiciary must be a person of proven competence, integrity, probity, and
independence." To ensure the fulfillment of these standards in every member of the Judiciary, the
JBC has been tasked toscreen aspiring judges and justices, among others, making certain that the
nominees submitted to the President are all qualified and suitably best for appointment. In this way,
the appointing process itself is shieldedfrom the possibility of extending judicial appointment to the
undeserving and mediocre and, more importantly, to the ineligible or disqualified.

In the performance of this sacred duty, the JBC itself admits, as stated in the "whereas clauses" of
JBC-009, that qualifications such as "competence, integrity, probity and independence are not easily
determinable as they are developed and nurtured through the years." Additionally, "it is not possible
or advisable to lay down iron-clad rules to determine the fitness of those who aspire to become a
Justice, Judge, Ombudsman or Deputy Ombudsman." Given this realistic situation, there is a need
"to promote stability and uniformity in JBC’s guiding precepts and principles." A set of uniform criteria
had to be established in the ascertainment of "whether one meets the minimum constitutional
qualifications and possesses qualities of mind and heart expected of him" and his office. Likewise for
the sake oftransparency of its proceedings, the JBC had put these criteria in writing, now in the form
of JBC-009. True enough, guidelines have been set inthe determination of competence,"20 "probity
and independence,"21 "soundness of physical and mental condition,22 and "integrity."23

As disclosed by the guidelines and lists of recognized evidence of qualification laid down in JBC-
009, "integrity" is closely related to, or if not, approximately equated to an applicant’s good reputation
for honesty, incorruptibility, irreproachableconduct, and fidelity to sound moral and ethical standards.
That is why proof of an applicant’s reputation may be shown in certifications or testimonials from
reputable government officials and non-governmental organizations and clearances from the courts,
National Bureau of Investigation, and the police, among others. In fact, the JBC may even conduct a
discreet background check and receive feedback from the public on the integrity, reputation and
character of the applicant, the merits of which shall be verifiedand checked. As a qualification, the
term is taken to refer to a virtue, such that, "integrity is the quality of person’s character."24

The foregoing premise then begets the question: Does Rule 2, Section 10 of JBC-009, in imposing
the "unanimity rule," contemplate a doubt on the moral character of an applicant? Section 2, Rule 10
of JBC-009 provides:
SEC. 2. Votes required when integrity of a qualified applicant is challenged. - In every case where
the integrity of an applicant who is not otherwise disqualified for nomination is raised or challenged,
the affirmative vote of all the Members of the Council must be obtained for the favorable
consideration of his nomination.

A simple reading of the above provision undoubtedly elicits the rule that a higher voting requirement
is absolute in cases where the integrity of an applicant is questioned. Simply put, when an integrity
question arises, the voting requirement for his or her inclusion as a nominee to a judicial post
becomes "unanimous" instead of the "majority vote" required in the preceding section.25 Considering
that JBC-009 employs the term "integrity" as an essential qualification for appointment, and its
doubtful existence in a person merits a higher hurdle to surpass, that is, the unanimous vote of all
the members of the JBC, the Court is of the safe conclusion that "integrity" as used in the rules must
be interpreted uniformly. Hence, Section 2, Rule 10 of JBC-009 envisions only a situation where an
applicant’s moral fitness is challenged. It follows then that the "unanimity rule" only comes into
operation when the moral character of a person is put in issue. It finds no application where the
question is essentially unrelated to an applicant’s moral uprightness.

Examining the "questions of integrity" made against Jardeleza

The Court will now examine the propriety of applying Section 2, Rule 10 of JBC-009 to Jardeleza’s
case.

The minutes of the JBC meetings, attached to the Supplemental Comment-Reply, reveal that during
the June 30, 2014 meeting, not only the question on his actuations in the handling of a case was
called for explanation by the Chief Justice, but two other grounds as well tending to show his lack of
integrity: a supposed extra-marital affair in the past and alleged acts of insider trading.26

Against this factual backdrop, the Court notes that the initial or original invocation of Section 2, Rule
10 of JBC-009 was grounded on Jardeleza’s "inability to discharge the duties of his office" as shown
in a legal memorandum related to Jardeleza’s manner of representing the government in a legal
dispute. The records bear that the "unanimity rule" was initially invoked by Chief Justice Sereno
during the JBC meeting held on June 5, 2014, where she expressed her position that Jardeleza did
not possess the integrity required tobe a member of the Court.27 In the same meeting, the Chief
Justice shared withthe other JBC members the details of Jardeleza’s chosen manner of framing the
government’s position in a case and how this could have been detrimental to the national interest.

In the JBC’s original comment, the details of the Chief Justice’s claim against Jardeleza’s integrity
were couched in general terms. The particulars thereof were only supplied to the Court in the JBC’s
Supplemental Comment-Reply. Apparently, the JBC acceded to Jardeleza’s demand to make the
accusations against him public. At the outset, the JBC declined to raise the fine points of the integrity
question in its original Comment due to its significant bearing on the country’s foreign relations and
national security. At any rate, the Court restrains itself from delving into the details thereof in this
disposition. The confidential nature of the document cited therein, which requires the observance of
utmost prudence, preclude a discussion that may possibly affect the country’s position in a pending
dispute.

Be that as it may, the Court has to resolve the standing questions: Does the original invocation of
Section 2, Rule 10 of JBC-009 involve a question on Jardeleza’s integrity? Doeshis adoption of a
specific legal strategy in the handling of a case bring forth a relevant and logical challenge against
his moral character? Does the "unanimity rule" apply in cases where the main point of contention is
the professional judgment sans charges or implications of immoral or corrupt behavior?
The Court answers these questions in the negative.

While Chief Justice Sereno claims that the invocation of Section 2, Rule 10 of JBC-009 was not
borne out ofa mere variance of legal opinion but by an "act of disloyalty" committed by Jardeleza in
the handling of a case, the fact remains that the basis for her invocation of the rule was the
"disagreement" in legal strategy as expressed by a group of international lawyers. The approach
taken by Jardeleza in that case was opposed to that preferred by the legal team. For said reason,
criticism was hurled against his "integrity." The invocation of the "unanimity rule" on integrity traces
its roots to the exercise ofhis discretion as a lawyer and nothing else. No connection was established
linking his choice of a legal strategy to a treacherous intent to trounce upon the country’s interests or
to betray the Constitution.

Verily, disagreement in legal opinion is but a normal, if not an essential form of, interaction among
members of the legal community. A lawyer has complete discretion on whatlegal strategy to employ
in a case entrusted to him28 provided that he lives up tohis duty to serve his client with competence
and diligence, and that he exert his best efforts to protect the interests of his client within the bounds
of the law. Consonantly, a lawyer is not an insurer of victory for clients he represents. An infallible
grasp of legal principles and technique by a lawyer is a utopian ideal. Stripped of a clear showing of
gross neglect, iniquity, or immoral purpose, a strategy of a legal mind remains a legal tactic
acceptable to some and deplorable to others. It has no direct bearing on his moral choices.

As shown in the minutes, the other JBC members expressed their reservations on whether the
ground invoked by Chief Justice Sereno could be classified as a "question of integrity" under Section
2, Rule 10 of JBC-009.29 These reservations were evidently sourced from the factthat there was no
clear indication that the tactic was a "brainchild" of Jardeleza, as it might have been a collective idea
by the legal team which initially sought a different manner of presenting the country’s arguments,
and there was no showing either of a corrupt purpose on his part.30 Even Chief Justice Sereno was
not certain that Jardeleza’s acts were urged by politicking or lured by extraneous
promises.31 Besides, the President, who has the final say on the conduct of the country’s advocacy in
the case, has given no signs that Jardeleza’s action constituted disloyalty or a betrayal of the
country’s trust and interest. While this point does notentail that only the President may challenge
Jardeleza’s doubtful integrity, itis commonsensical to assume that he is in the best position to
suspect a treacherous agenda. The records are bereft of any information that indicatesthis
suspicion. In fact, the Comment of the Executive Secretary expressly prayed for Jardeleza’s
inclusion in the disputed shortlist.

The Court notes the zeal shown by the Chief Justice regarding international cases, given her
participation in the PIATCO case and the Belgian Dredging case. Her efforts inthe determination of
Jardeleza’s professional background, while commendable, have not produced a patent
demonstration of a connection betweenthe act complained of and his integrity as a person.
Nonetheless, the Court cannot consider her invocation of Section 2, Rule 10 of JBC-009 as
conformably within the contemplation of the rule. To fall under Section 2, Rule 10 of JBC-009, there
must be a showing that the act complained of is, at the least, linked to the moral character of the
person and not to his judgment as a professional. What this disposition perceives, therefore, is the
inapplicability of Section 2, Rule 10 of JBC-009 to the original ground of its invocation.

As previously mentioned, Chief Justice Sereno raised the issues of Jardeleza’s alleged extra-marital
affair and acts of insider-trading for the first time onlyduring the June 30, 2014 meeting of the JBC.
As can be gleaned from the minutes of the June 30, 2014 meeting, the inclusion of these issues had
its origin from newspaper reports that the Chief Justice might raise issues of "immorality" against
Jardeleza.32 The Chief Justice then deduced that the "immorality" issue referred to by the media
might have been the incidents that could have transpired when Jardeleza was still the General
Counsel of San Miguel Corporation. She stated that inasmuch as the JBC had the duty to "take
every possible step to verify the qualification of the applicants," it might as well be clarified.33

Do these issues fall within the purview of "questions on integrity" under Section 2, Rule 10 of JBC-
009? The Court nods in assent. These are valid issues.

This acquiescence is consistent with the Court’s discussion supra. Unlike the first ground which
centered onJardeleza’s stance on the tactical approach in pursuing the case for the government, the
claims of an illicit relationship and acts of insider trading bear a candid relation to his moral
character. Jurisprudence34 is replete with cases where a lawyer’s deliberate participation in extra-
marital affairs was considered as a disgraceful stain on one’s ethical and moral principles. The
bottom line is that a lawyer who engages in extra-marital affairs is deemed to have failed to adhere
to the exacting standards of morality and decency which every member of the Judiciary is expected
to observe. In fact, even relationships which have never gone physical or intimate could still be
subject to charges of immorality, when a lawyer, who is married, admits to having a relationship
which was more than professional, more than acquaintanceship, more than friendly.35 As the Court
has held: Immorality has not been confined to sexual matters, but includes conduct inconsistentwith
rectitude, or indicative of corruption, indecency, depravity and dissoluteness; or is willful, flagrant, or
shameless conduct showing moral indifference to opinions of respectable members of the
communityand an inconsiderate attitude toward good order and public welfare.36 Moral character is
not a subjective term but one that corresponds to objective reality.37 To have a good moral character,
a person must have the personal characteristic ofbeing good. It is not enough that he or she has a
good reputation, that is, the opinion generally entertained about a person or the estimate in which he
or she is held by the public in the place where she is known.38 Hence, lawyers are at all times subject
to the watchful public eye and community approbation.39

The element of "willingness" to linger in indelicate relationships imputes a weakness in one’s values,
self-control and on the whole, sense of honor, not only because it is a bold disregard of the sanctity
of marriage and of the law, but because it erodes the public’s confidence in the Judiciary. This is no
longer a matter of an honest lapse in judgment but a dissolute exhibition of disrespect toward
sacredvows taken before God and the law.

On the other hand, insider trading is an offense that assaults the integrity of our vital securities
market.40 Manipulative devices and deceptive practices, including insider trading, throw a monkey
wrench right into the heart of the securities industry. Whensomeone trades inthe market with unfair
advantage in the form of highly valuable secret inside information, all other participants are
defrauded. All of the mechanisms become worthless. Given enough of stock marketscandals
coupled with the related loss of faith in the market, such abuses could presage a severe drain of
capital. And investors would eventuallyfeel more secure with their money invested elsewhere.41 In its
barest essence, insider trading involves the trading of securities based on knowledge of material
information not disclosed to the public at the time. Clearly, an allegation of insider trading involves
the propensity of a person toengage in fraudulent activities that may speak of his moral character.

These two issues can be properly categorized as "questions on integrity" under Section 2, Rule 10 of
JBC-009. They fall within the ambit of "questions on integrity." Hence, the "unanimity rule" may come
into operation as the subject provision is worded.

The Availability of Due Process in the

Proceedings of the JBC

In advocacy of his position, Jardeleza argues that: 1] he should have been informed of the
accusations against him in writing; 2] he was not furnished the basis of the accusations, that is, "a
very confidential legal memorandum that clarifies the integrityobjection"; 3] instead of heeding his
request for an opportunity to defend himself, the JBC considered his refusal to explain, during the
June 30, 2014 meeting, as a waiver of his right to answer the unspecified allegations; 4] the voting of
the JBC was railroaded; and 5] the alleged "discretionary" nature of Sections 3 and 4 of JBC-009 is
negated by the subsequent effectivity of JBC-010, Section 1(2) of which provides for a 10-day period
from the publication of the list of candidates within which any complaint or opposition against a
candidate may be filed with the JBC Secretary; 6] Section 2 of JBC-010 requires complaints and
oppositions to be in writing and under oath, copies of which shall be furnished the candidate in order
for him to file his comment within five (5) days from receipt thereof; and 7] Sections 3 to 6 of JBC-
010 prescribe a logical, reasonable and sequential series of steps in securing a candidate’s right to
due process.

The JBC counters these by insisting that it is not obliged to afford Jardeleza the right to a hearing in
the fulfillment of its duty to recommend. The JBC, as a body, is not required by law to hold hearings
on the qualifications of the nominees. The process by which an objection is made based on Section
2, Rule 10 of JBC-009 is not judicial, quasi-judicial, or fact-finding, for it does not aim to determine
guilt or innocence akin to a criminal or administrative offense but toascertain the fitness of an
applicant vis-à-vis the requirements for the position. Being sui generis, the proceedings of the JBC
do not confer the rights insisted upon by Jardeleza. He may not exact the application of rules of
procedure which are, at the most, discretionary or optional. Finally, Jardeleza refused to shed light
on the objections against him. During the June 30, 2014 meeting, he did not address the issues, but
instead chose totread on his view that the Chief Justice had unjustifiably become his accuser,
prosecutor and judge.

The crux of the issue is on the availability of the right to due process in JBC proceedings. After a
tedious review of the parties’ respective arguments, the Court concludes that the right to due
process is available and thereby demandable asa matter of right.

The Court does not brush aside the unique and special nature of JBC proceedings. Indeed, they are
distinct from criminal proceedings where the finding of guilt or innocence of the accused is sine qua
non. The JBC’s constitutional duty to recommend qualified nominees to the President cannot be
compared to the duty of the courts of law to determine the commission of an offense and ascribe the
same to an accused, consistent with established rules on evidence. Even the quantum ofevidence
required in criminal cases is far from the discretion accorded to the JBC.

The Court, however, could not accept, lock, stock and barrel, the argument that an applicant’s
access tothe rights afforded under the due process clause is discretionary on the part of the JBC.
While the facets of criminal42 and administrative43 due process are not strictly applicable to JBC
proceedings, their peculiarity is insufficient to justify the conclusion that due process is not
demandable.

In JBC proceedings, an aspiring judge or justice justifies his qualifications for the office when he
presents proof of his scholastic records, work experience and laudable citations. His goal is to
establish that he is qualified for the office applied for. The JBC then takes every possible step to
verify an applicant's trackrecord for the purpose ofdetermining whether or not he is qualified for
nomination. It ascertains the factors which entitle an applicant to become a part of the roster from
which the President appoints.

The fact that a proceeding is sui generisand is impressed with discretion, however, does not
automatically denigrate an applicant’s entitlement to due process. It is well-established in
jurisprudence that disciplinary proceedings against lawyers are sui generisin that they are neither
purely civil nor purely criminal; they involve investigations by the Court into the conduct of one of its
officers, not the trial of an action or a suit.44 Hence, in the exercise of its disciplinary powers, the
Court merely calls upon a member of the Bar to accountfor his actuations as an officer of the Court
with the end in view of preserving the purity of the legal profession and the proper and honest
administration of justice by purging the profession of members who, by their misconduct, have
proved themselves no longer worthy to be entrusted with the duties and responsibilities pertaining to
the office of an attorney. In such posture, there can be no occasion to speak of a complainant or a
prosecutor.45 On the whole, disciplinary proceedings are actually aimed to verifyand finally determine,
if a lawyer charged is still qualifiedto benefit from the rights and privileges that membership in the
legal profession evoke.

Notwithstanding being "a class of itsown," the right to be heard and to explain one’s self is availing.
The Court subscribes to the view that in cases where an objection to an applicant’s qualifications is
raised, the observance of due process neither negates nor renders illusory the fulfillment of the duty
of JBC torecommend. This holding is not an encroachment on its discretion in the nomination
process. Actually, its adherence to the precepts of due process supports and enriches the exercise
of its discretion. When an applicant, who vehemently denies the truth of the objections, is afforded
the chance to protest, the JBC is presented with a clearer understanding of the situation it faces,
thereby guarding the body from making an unsound and capriciousassessment of information
brought before it. The JBC is not expected to strictly apply the rules of evidence in its assessment of
an objection against an applicant. Just the same, to hear the side of the person challenged complies
with the dictates of fairness for the only test that an exercise of discretion must surmount is that of
soundness.

A more pragmatic take on the matter of due process in JBC proceedings also compels the Court to
examine its current rules. The pleadings of the parties mentioned two: 1] JBC-009 and 2] JBC-010.
The former provides the following provisions pertinent to this case:

SECTION 1. Evidence of integrity. - The Council shall take every possible step to verify the
applicant's record of and reputation for honesty, integrity, incorruptibility, irreproachable conduct, and
fidelity to sound moral and ethical standards. For this purpose, the applicant shall submit to the
Council certifications or testimonials thereof from reputable government officials and non-
governmental organizations, and clearances from the courts, National Bureau of Investigation,
police, and from such other agencies as the Council may require.

SECTION 2. Background check. - The Council mayorder a discreet background check on the
integrity, reputation and character of the applicant, and receive feedback thereon from the public,
which it shall check or verify to validate the merits thereof.

SECTION 3. Testimony of parties.- The Council may receive written opposition to an applicant on
groundof his moral fitness and, at its discretion, the Council mayreceive the testimony of the
oppositor at a hearing conducted for the purpose, with due notice to the applicant who shall be
allowed to cross-examine the oppositor and to offer countervailing evidence.

SECTION 4. Anonymous complaints. - Anonymous complaints against an applicant shall not

begiven due course, unless there appears on its face a probable cause sufficient to engender belief
that the allegations may be true. In the latter case, the Council may either direct a discreet
investigation or require the applicant to comment thereon in writing or during the interview.
[Emphases Supplied]
While the "unanimity rule" invoked against him is found in JBC-009, Jardeleza urges the Court to
hold that the subsequent rule, JBC-010,46 squarely applies to his case. Entitled asa "Rule to Further
Promote Public Awareness of and Accessibility to the Proceedings of the Judicial and Bar Council,"
JBC-010 recognizes the needfor transparency and public awareness of JBC proceedings. In
pursuance thereof, JBC-010 was crafted in this wise:

SECTION 1. The Judicial and Bar Council shall deliberate to determine who of the candidates meet
prima facie the qualifications for the positionunder consideration. For this purpose, it shall prepare a
long list of candidates who prima facieappear to have all the qualifications.

The Secretary of the Council shall then cause to be published in two (2) newspapers of general
circulation a notice of the long list of candidates in alphabetical order.

The notice shall inform the public that any complaint or opposition against a candidate may be filed
with the Secretary within ten (10) days thereof.

SECTION 2.The complaint or opposition shall be in writing, under oath and in ten (10) legible copies,
together with its supporting annexes. It shall strictly relate to the qualifications of the candidate or
lack thereof, as provided for in the Constitution, statutes, and the Rules of the Judicial and Bar
Council, as well as resolutions or regulations promulgated by it.

The Secretary of the Council shallfurnish the candidate a copy of the complaint or opposition against
him. The candidate shall have five (5) days from receipt thereof within which to file his comment to
the complaint or opposition, if he so desires.

SECTION 3.The Judicial and Bar Council shall fix a date when it shall meet in executive session to
consider the qualification of the long list of candidates and the complaint or opposition against them,
if any. The Council may, on its own, conduct a discreet investigation of the background of the
candidates.

On the basis of its evaluationof the qualification of the candidates, the Council shall prepare the
shorter list of candidates whom it desires to interview for its further consideration.

SECTION 4.The Secretary of the Council shall again cause to be published the dates of the
interview of candidates in the shorter list in two (2) newspapers of general circulation. It shall
likewise be posted in the websites of the Supreme Court and the Judicial and Bar Council.

The candidates, as well as their oppositors, shall be separately notified of the dateand place of the
interview.

SECTION 5.The interviews shall be conducted in public. During the interview, only the members
ofthe Council can ask questions to the candidate. Among other things, the candidate can be made to
explain the complaint or opposition against him.

SECTION 6. After the interviews, the Judicial and Bar Council shall again meet in executive session
for the final deliberation on the short list of candidates which shall be sent to the Office of the
President as a basis for the exercise of the Presidential power of appointment. [Emphases supplied]

Anent the interpretation of these existing rules, the JBC contends that Sections 3 and 4, Rule 10 of
JBC-009 are merely directory in nature as can be gleaned from the use of the word "may." Thus, the
conduct of a hearing under Rule 4 of JBC-009 is permissive and/or discretionary on the part of the
JBC. Even the conduct of a hearing to determine the veracity of an opposition is discretionary for
there are ways, besides a hearing, to ascertain the truth or falsity of allegations. Succinctly, this
argument suggests that the JBC has the discretion to hold or not to hold a hearing when an
objection to an applicant’s integrity is raised and that it may resort to other means to accomplish its
objective. Nevertheless, JBC adds, "what is mandatory, however, is that if the JBC, in its discretion,
receives a testimony of an oppositor in a hearing, due notice shall be given to the applicant and that
shall be allowed to cross-examine the oppositor."47 Again, the Court neither intends to strip the JBC
of its discretion to recommend nominees nor proposes thatthe JBC conduct a full-blown trial when
objections to an application are submitted. Still, it is unsound to say that, all together, the observance
of due process is a part of JBC’s discretion when an opposition to an application is made of record.
While it may so rely on "other means" such as character clearances, testimonials, and discreet
investigation to aid it in forming a judgment of an applicant’s qualifications, the Court cannot accept a
situation where JBC is given a full rein on the application of a fundamental right whenever a person’s
integrity is put to question. In such cases, an attack on the person of the applicant necessitates his
right to explain himself.

The JBC’s own rules convince the Court to arrive at this conclusion. The subsequent issuance of
JBC-010 unmistakably projects the JBC’s deference to the grave import of the right of the applicant
to be informed and corollary thereto, the right to be heard. The provisions of JBC-010, per se,
provide that: any complaint or opposition against a candidate may be filed with the Secretary within
ten (10) days thereof; the complaint or opposition shall be in writing, under oath and in ten (10)
legible copies; the Secretary of the Council shall furnish the candidate a copy of the complaint or
opposition against him; the candidate shall have five (5) days from receipt thereof within which to file
his comment to the complaint or opposition, if he so desires; and the candidate can be made to
explain the complaint or opposition against him.

The Court may not close its eyes to the existence of JBC-010 which, under the rules of statutory
construction,bears great weight in that: 1] it covers "any" complaint or opposition; 2] it employs the
mandatory term, "shall"; and 3] most importantly, it speaks of the very essence of due process.
While JBC-010 does not articulate a procedure that entails a trialtype hearing, it affords an applicant,
who faces "any complaint or opposition," the right to answer the accusations against him. This
constitutes the minimum requirements of due process.

Application to Jardeleza’s Case

Nearing the ultimate conclusion of this case, the Court is behooved to rule on whether Jardeleza
was deprived of his right to due process in the events leading up to, and during, the vote on the
shortlist last June 30, 2014.

The JBC gives great weight and substance to the fact that it gave Jardeleza the opportunity to
answer the allegations against him. It underscores the fact that Jardeleza was asked to attend the
June 30, 2014 meeting so that he could shed light on the issues thrown at him. During the said
meeting, Chief Justice Sereno informed him that in connection with his candidacy for the position of
Associate Justice of the Supreme Court, the Council would like to propound questions on the
following issues raised against him: 1] his actuations in handling an international arbitration case not
compatible with public interest;48 2] reports on his extra-marital affair in SMC; and 3] alleged insider
trading which led to the "show cause" order from the Philippine Stock Exchange.49

As Jardeleza himself admitted, he declined to answer or to explain his side, as he would not want to
be "lulled into waiving his rights." Instead, he manifested that his statement be put on record and
informed the Council of the then pendency of his letter-petition with the Court en banc. When Chief
Justice Sereno informed Jardeleza that the Council would want to hear from him on the three (3)
issues against him,Jardeleza reasoned out that this was precisely the issue. He found it irregular
that he was not being given the opportunity to be heard per the JBC rules.He asserted that a
candidate must be given the opportunity to respond to the charges against him. He urged the Chief
Justice to step down from her pedestal and translate the objections in writing. Towards the end of
the meeting, the Chief Justice said that both Jardeleza’s written and oral statements would be made
part of the record. After Jardeleza was excused from the conference, Justice Lagman suggested that
the voting be deferred, but the Chief Justice ruled that the Council had already completed the
process required for the voting to proceed.

After careful calibration of the case, the Court has reached the determination that the application of
the "unanimity rule" on integrity resulted in Jardeleza’s deprivation of his right to due process.

As threshed out beforehand, due process, as a constitutional precept, does not always and in all
situations require a trial-type proceeding. Due process is satisfied when a person is notified of the
charge against him and given an opportunity to explain or defend himself.50 Even as Jardeleza was
verbally informed of the invocation of Section 2, Rule 10 of JBC-009 against him and was later
asked to explain himself during the meeting, these circumstances still cannot expunge an immense
perplexity that lingers in the mind of the Court. What is to become of the procedure laid down in
JBC-010 if the same would be treated with indifference and disregard? To repeat, as its wording
provides, any complaint or opposition against a candidate may be filed with the Secretary withinten
(10) days from the publication of the notice and a list of candidates. Surely, this notice is all the more
conspicuous to JBC members. Granting ex argumenti, that the 10-day period51 is only applicable to
the public, excluding the JBC members themselves, this does not discount the fact that the
invocation of the first ground in the June 5, 2014 meeting would have raised procedural issues. To
be fair, several members of the Council expressed their concern and desire to hear out Jardeleza
but the application of JBC-010 did not form part of the agenda then. It was only during the next
meeting on June 16, 2014, that the Council agreed to invite Jardeleza, by telephone, to a meeting
that would be held on the same day when a resource person would shed light on the matter.

Assuming again that the classified nature of the ground impelled the Council to resort to oral notice
instead of furnishing Jardeleza a written opposition, why did the JBC not take into account its
authority to summon Jardeleza in confidence at an earlier time? Is not the Council empowered to
"take every possible step to verify the qualification of the applicants?" It would not be amiss to state,
at this point, that the confidential legal memorandum used in the invocation ofthe "unanimity rule"
was actually addressed to Jardeleza, in his capacity as Solicitor General. Safe to assume is his
knowledge of the privileged nature thereof and the consequences of its indiscriminate release to the
public. Had he been privately informed of the allegations against him based on the document and
had he been ordered to respond thereto in the same manner, Jardeleza’s right to be informed and to
explain himself would have been satisfied.

What precisely set off the protest of lack of due process was the circumstance of requiring Jardeleza
to appear before the Council and to instantaneously provide those who are willing to listen an
intelligent defense. Was he given the opportunity to do so? The answer is yes, in the context of his
physical presence during the meeting. Was he given a reasonable chance to muster a defense? No,
because he was merely asked to appear in a meeting where he would be, right then and there,
subjected to an inquiry. It would all be too well to remember that the allegations of his extra-marital
affair and acts of insider trading sprung up only during the June 30, 2014 meeting. While the said
issues became the object of the JBC discussion on June 16, 2014, Jardeleza was not given the idea
that he should prepare to affirm or deny his past behavior. These circumstances preclude the very
idea of due process in which the right to explain oneself is given, not to ensnare by surprise, but
toprovide the person a reasonable opportunity and sufficient time to intelligently muster his
response. Otherwise, the occasion becomes anidle and futile exercise.
Needless to state, Jardeleza’s grievance is not an imagined slight but a real rebuff of his right to be
informed of the charges against him and his right to answer the same with vigorouscontention and
active participation in the proceedings which would ultimately decide his aspiration to become a
magistrate of this Court.

Consequences

To write finisto this controversy and in view of the realistic and practical fruition of the Court’s
findings, the Court now declares its position on whether or not Jardeleza may be included in the
shortlist, just in time when the period to appoint a member of the Court is about to end.

The conclusion of the Court is hinged on the following pivotal points:

1. There was a misapplication of the "unanimity rule" under Section 2, Rule 10 of JBC-009 as
to Jardeleza’s legal strategy in handling a case for the government.

2. While Jardeleza’s alleged extra-marital affair and acts of insider trading fall within the
contemplation of a "question on integrity" and would have warranted the application of the
"unanimity rule," he was notafforded due process in its application.

3. The JBC, as the sole body empowered to evaluate applications for judicial posts,
exercises full discretion on its power to recommend nomineesto the President. The sui
generischaracter of JBC proceedings, however, is not a blanket authority to disregard the
due process under JBC-010.

4. Jardeleza was deprived of his right to due process when, contrary to the JBC rules, he
was neither formally informed of the questions on his integrity nor was provided a reasonable
opportunity to prepare his defense.

With the foregoing, the Court is compelled to rule that Jardeleza should have been included in the
shortlist submitted to the President for the vacated position of Associate Justice Abad. This
consequence arose not from the unconstitutionality of Section 2, Rule 10 of JBC-009, per se, but
from the violation by the JBC of its own rules of procedure and the basic tenets of due process. By
no means does the Court intend to strike down the "unanimity rule" as it reflects the JBC’s policy
and, therefore, wisdom in its selection of nominees. Even so, the Court refuses to turn a blind eye on
the palpable defects in its implementation and the ensuing treatment that Jardeleza received before
the Council. True, Jardeleza has no vested right to a nomination, but this does not prescind from the
fact that the JBC failed to observe the minimum requirements of due process.

In criminal and administrative cases, the violation of a party’s right to due process raises a serious
jurisdictional issue which cannot be glossed over or disregarded at will. Where the denial of the
fundamental right of due process is apparent, a decision rendered in disregard of that right is void for
lack of jurisdiction.52 This rule may well be applied to the current situation for an opposing view
submits to an undue relaxation of the Bill of Rights. To this, the Court shall not concede. Asthe
branch of government tasked to guarantee that the protection of due process is available to an
individual in proper cases, the Court finds the subject shortlist as tainted with a vice that it is
assigned to guard against. Indeed, the invocation of Section 2, Rule 10 of JBC-009 must be deemed
to have never come into operation in light of its erroneous application on the original ground against
Jardeleza’s integrity. At the risk of being repetitive, the Court upholds the JBC’s discretion in the
selection of nominees, but its application of the "unanimity rule" must be applied in conjunction with
Section 2, Rule 10 of JBC-010 being invoked by Jardeleza. Having been able to secure four (4) out
of six (6) votes, the only conclusion left to propound is that a majority of the members of the JBC,
nonetheless, found Jardeleza to be qualified for the position of Associate Justice and this grants him
a rightful spot in the shortlist submitted to the President. Need to Revisit JBC’s

Internal Rules

In the Court’s study of the petition,the comments and the applicable rules of the JBC, the Court is of
the view that the rules leave much to be desired and should be reviewed and revised. It appears that
the provision on the "unanimity rule" is vagueand unfair and, therefore, can be misused or abused
resulting in the deprivation of an applicant’s right to due process.

Primarily, the invocation of the "unanimity rule" on integrity is effectively a veto power over the
collective will of a majority. This should be clarified. Any assertion by a member aftervoting seems to
be unfair because it effectively gives him or her a veto power over the collective votes of the other
members in view of the unanimous requirement. While an oppositor-member can recuse himself
orherself, still the probability of annulling the majority vote ofthe Council is quite high.

Second, integrity as a ground has not been defined. While the initial impression is that it refers to the
moral fiber of a candidate, it can be, as it has been, used to mean other things. Infact, the minutes of
the JBC meetings n this case reflect the lack of consensus among the members as to its precise
definition. Not having been defined or described, it is vague, nebulous and confusing. It must be
distinctly specified and delineated.

Third, it should explicitly provide who can invoke it as a ground against a candidate. Should it be
invoked only by an outsider as construed by the respondent Executive Secretary or also by a
member?

Fourth, while the JBC vetting proceedings is "sui generis" and need not be formal or trial type, they
must meet the minimum requirements of due process. As always, an applicant should be given a
reasonable opportunity and time to be heard on the charges against him or her, if there are any.

At any rate, it is up to the JBC to fine-tune the rules considering the peculiar nature of its function. It
need not be stressed that the rules to be adopted should be fair, reasonable, unambiguous and
consistent with the minimum requirements of due process.

One final note.

The Court disclaims that Jardeleza's inclusion in the shortlist is an endorsement of his appointment
as a member of the Court. In deference to the Constitution and his wisdom in the exercise of his
1âwphi1

appointing power, the President remains the ultimate judge of a candidate's worthiness.

WHEREFORE, the petition is GRANTED. Accordingly, it is hereby declared that Solicitor General
Francis I-I. Jardeleza is deemed INCLUDED in the shortlist submitted to the President for
consideration as an Associate Justice of the Supreme Court vice Associate Justice Roberto A. Abad.

The Court further DIRECTS that the Judicial and Bar Council REVIEW, and ADOPT, rules relevant
to the observance of due process in its proceedings, particularly JBC-009 and JBC-010, subject to
the approval of the Court.

This Decision is immediately EXECUTORY. Immediately notify the Office of the President of this
Decision.
SO ORDERED.

July 25, 2017

G.R. No. 228628

REP. REYNALDO V. UMALI, in his capacity as Chairman of the House of Representatives

Committee on Justice and Ex Officio Member of the JBC, Petitioner
vs.
THE JUDICIAL AND BAR COUNCIL, chaired by THE HON. MARIA LOURDES P.A. SERENO,
Chief Justice and Ex Officio Chairperson, Respondent

DECISION

VELASCO, JR., J.:

Stare decisis et non quieta movere. This principle of adherence to precedents has not lost its luster
and continues to guide the bench in keeping with the need to maintain stability in the law.1

This Petition for Certiorari and Mandamus under Rule 65 of the Rules of Court filed directly with this
Court by herein petitioner Rep. Reynaldo V. Umali, current Chair of the House of Representatives
Committee on Justice, impugns the present-day practice of six-month rotational representation of
Congress in the Judicial and Bar Council (JBC) for it unfairly deprives both Houses of Congress of
their full participation in the said body. The aforementioned practice was adopted by the JBC in light
of the ruling in Chavez v. Judicial and Bar Council.2

As an overview, in Chavez, the constitutionality of the practice of having two representatives from
both houses of Congress with one vote each in the JBC, thus, increasing its membership from seven
to eight, was challenged. With that, this Court examined the constitutional provision that states the
composition of the JBC, that is, Section 8(1), Article VIII of the 1987 Constitution, which reads:

SECTION 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme
Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a
representative of the Congress as ex officio Members, a representative of the Integrated Bar, a
professor of law, a retired Member of the Supreme Court, and a representative of the private sector.
(Emphasis supplied.)

Following a painstaking analysis, this Court, in a Decision dated July 17, 2012, declared the said
practice of having two representatives from Congress with one vote each in the JBC
unconstitutional. This Court enunciated that the use of the singular
letter "a" preceding "representative of the Congress" in the aforequoted provision is unequivocal and
leaves no room for any other construction or interpretation. The same is indicative of the Framers'
intent that Congress may designate only one representative to the JBC. Had it been otherwise, they
could have, in no uncertain terms, so provided. This Court further articulated that in the context of
JBC representation, the term "Congress" must be taken to mean the entire legislative department as
no liaison between the two houses exists in the workings of the JBC. There is no mechanism
required between the Senate and the House of Representatives in the screening and nomination of
judicial officers. Moreover, this Court, quoting the keen observation of Retired Supreme Court
Associate Justice Consuelo Ynares-Santiago, who is also a JBC Consultant, stated that the ex
officio members of the JBC consist of representatives from the three main branches of government,
to wit: the Chief Justice of the Supreme Court representing the judiciary, the Secretary of Justice
representing the executive, and a representative of the Congress representing the legislature. It can
be deduced therefrom that the unmistakable tenor of Section 8(1), Article VIII of the 1987
Constitution was to treat each ex officio member as representing one co-equal branch of
government having equal say in the choice of judicial nominees. Now, to allow the legislature to
have more than one representative in the JBC would negate the principle of equality among these
three branches of the government, which is enshrined in the Constitution.3

The subsequent motion for reconsideration thereof was denied in a Resolution dated April 16, 2013,
where this Court reiterated that Section 8(1), Article VIII of the 1987 Constitution providing for "a
representative of the Congress" in the JBC is clear and unambiguous and does not need any further
interpretation. Besides, this Court is not convinced that the Framers simply failed to adjust the
aforesaid constitutional provision, by sheer inadvertence, to their decision to shift to a bicameral form
of legislature. Even granting that there was, indeed, such omission, this Court cannot supply the
same. Following the rule of casus omissus, that is, a case omitted is to be held as intentionally
omitted, this Court cannot under its power of interpretation supply the omission even if the same
may have resulted from inadvertence or it was not foreseen or contemplated for to do so would
amount to judicial legislation. Ergo, this Court has neither power nor authority to add another
member in the JBC simply by judicial construction.4

In light of these Decision and Resolution, both Houses of Congress agreed on a six-month rotational
representation in the JBC, wherein the House of Representatives will represent Congress from
January to June and the Senate from July to December.5This is now the current practice in the JBC.
It is by reason of this arrangement that the votes cast by the petitioner for the selection of nominees
for the vacancies of then retiring Supreme Court Associate Justices Jose P. Perez (Perez) and
Arturo Brion (Brion) were not counted by the JBC during its En Banc deliberations held last
December 2 and 9, 2016. Instead, the petitioner's votes were simply placed in an envelope and
sealed subject to any further disposition as this Court may direct in a proper proceeding.6 This is the
root of the present controversy that prompted the petitioner to file the instant Petition
for Certiorari and Mandamus based on the following grounds:

I.

THE WRIT OF CERTIORARI IS PROPER TO ENJOIN THE JBC TO CORRECT ITS

UNWARRANTED DENIAL OF THE VOTES REGISTERED BY [HEREIN PETITIONER] DURING
THE EN BANC DELIBERATIONS ON DECEMBER 2 AND 9, 2016 BECAUSE THE DECISION IN
THE CHAVEZ CASE IS DEFECTIVE/FLA WED.

II.

THE WRIT OF MANDAMUS IS PROPER TO MANDATE THE JBC TO ACCEPT/COUNT SAID

VOTES CAST BY [PETITIONER] BECAUSE THE RECONSTITUTION OF THE JBC IS
DEFECTIVE/FLA WED AND UNCONSTITUTIONAL.

III.

THE PRESENT PRACTICE OF THE JBC IN ALLOWING ONLY ONE REPRESENTATIVE FROM
THE SENATE OR THE HOUSE OF [REPRESENTATIVES] TO PARTICIPATE AND VOTE ON A [6-
MONTH] ROTATION BASIS IS IMPRACTICABLE, ABSURD AND UNCONSTITUTIONAL,
CREATES AN [INSTITUTIONAL] IMBALANCE BETWEEN THE TWO INDEPENDENT CHAMBERS
OF CONGRESS, AND INSTITUTES AN INHERENT AND CONTINUING CONSTITUTIONAL
DEFECT IN THE PROCEEDINGS OF THE JBC THAT ADVERSELY AFFECTS APPOINTMENTS
TO THE JUDICIAL DEPARTMENT, INCLUDING AND PARTICULARLY [THIS COURT].

IV.

THE 1987 CONSTITUTION CLEARLY REQUIRES PARTICIPATION AND VOTING BY

REPRESENTATIVES FROM THE SENATE AND THE HOUSE OF REPRESENTATIVES IN JBC
PROCEEDINGS AND ALL APPOINTMENTS TO THE JUDICIAL DEPARTMENT, INCLUDING AND
PARTICULARLY [TIDS COURT].

A. THE BICAMERAL NATURE OF THE LEGISLATIVE DEPARTMENT WAS BELATEDLY

DECIDED UNDER THE 1987 CONSTITUTION, BUT MUST BE DEEMED AS INCORPORATED
AND MODIFYING THE JBC STRUCTURE UNDER SECTION 8(1)[,] ARTICLE VIII OF THE [1987]
CONSTITUTION, TO GIVE FULL MEANING TO THE INTENT OF ITS FRAMERS.

B. THERE WAS A CLEAR OVERSIGHT AND TECHNICAL OMISSION INVOLVING SECTIONS

8(1)[,] ARTICLE VIII OF THE [1987] CONSTITUTION THAT SHOULD BE RECTIFIED BY [TIDS
COURT].

C. THE FULL REPRESENTATION OF CONGRESS IN THE JBC IS POSSIBLE ONLY WITH

PARTICIPATING AND VOTING FROM REPRESENTATIVES FROM THE TWO INDEPENDENT
CHAMBERS, OTHERWISE THE JBC PROCEEDINGS ARE UNCONSTITUTIONAL.

D. THE PRESENCE OF THE SENATE AND [THE] HOUSE OF REPRESENTATIVES MEMBERS IN

THE JBC UPHOLDS THE CO-EQUAL REPRESENTATION IN THE COUNCIL OF THE THREE
MAIN BRANCHES OF GOVERNMENT.7

As instructed by this Court,8 both Houses of Congress, through the Manifestation of the Office of the
Solicitor General (OSG), which acts as the People's Tribune in this case, and the JBC commented
on the Petition.

The OSG wants this Court to revisit Chavez for its alleged unexecutability arising from constitutional
constraints. It holds that the current practice of alternate representation was only arrived at because
of time constraints and difficulty in securing the agreement of both Houses of Congress.9 And, since
the Constitution itself did not clearly state who is the Congress' representative in the JBC, the
provision, therefore, regarding the latter's composition must be harmonized to give effect to the
current bicameral system.10 With this in view, the OSG believes that it is only proper for both Houses
of Congress to be given equal representation in the JBC as neither House can bind the other for
there can be no single member of either House who can fully represent the entire legislature for to
do so would definitely result in absurdity.11

Further, the OSG avers that Chavez's strict interpretation of Section 8(1), Article VIII of the 1987
Constitution violates the very essence of bicameralism and sets aside the inherent dichotomy
between the two Houses of Congress.12 To note, a JBC member's votes are reflective of the position
and the interest such member wants to uphold, such that when the representatives from each House
of Congress vote for a certain judicial nominee, they carry the interests and views of the group they
represent. Thus, when only one would represent both Houses of Congress in the JBC, the vote
would not be representative of the interests embodied by the Congress as a whole.13

In the same way, the OSG contends that the bicameral nature of the legislature strictly adheres to
the distinct and separate personality of both Houses of Congress; thus, no member of Congress can
represent the entire Congress. Besides, the phrase "a representative of the Congress" in Section
8(1), Article VIII of the 1987 Constitution is qualified by the phrase "ex officio members." The ex
officio nature of the position derives its authority from the principal office. It, thus, follows that each
house of Congress must be represented in the JBC.14

Also, the OSG states that the constitutional intent in creating the JBC is to ensure community
representation from the different sectors of society, as well as from the three branches of
government, and to eliminate partisan politics in the selection of members of the judiciary. The focus,
therefore, is more on proper representation rather than qualitative limitation. It even insists that when
the Framers deliberated on Section 8(1 ), Article VIII of the 1987 Constitution, they were still thinking
of a unicameral legislature, thereby, giving Congress only one representative to the JBC. However,
with the shift from unicameralism to bicameralism, "a representative of the Congress" in the JBC
should now be understood to mean one representative from each House of Congress. For had it
been the intention of the Framers for the JBC to be composed only of seven members, they would
have specified the numbers just like in the other constitutional provisions. As such, the membership
in the JBC should not be limited to seven members. More so, an eventual deadlock in the voting
would not pose any problem since the voting in the JBC is not through a "yes" or a "no" vote.15

As its final argument, the OSG maintains that while Congress' participation in the JBC may be non-
legislative, still, the involvement of both Houses of Congress in its every proceeding is
indispensable, as each House represents different constituencies and would necessarily bring a
unique perspective to the recommendation process of the JBC.16

For its part, the JBC vehemently pleads that the present Petition be dismissed as its adopted
rotational scheme and the necessary consequences thereof are not the proper subjects of
a certiorari and even a mandamus petition for the same do not involve an exercise of judicial, quasi-
judicial or ministerial functions. Apart from that, it committed no grave abuse of discretion in refusing
to recognize, accept and count the petitioner's votes during its En Banc deliberations last December
2 and 9, 2016 for it merely acted in accordance with the Constitution and with the ruling
in Chavez. More so, there is no showing that the petitioner has no plain, speedy and adequate
remedy other than this Petition for nowhere herein did he assert that he exerted all efforts to have
his concern addressed by Congress, such as asking the latter to repudiate the rotational
arrangement. Thus, for the petitioner's failure to exhaust all remedies available to him in Congress,
he deprived the latter of an opportunity to address the matter. Also, the practice and acquiescence of
both Houses of Congress to such an arrangement operates as an estoppel against any member
thereof to deny its validity. As regards a writ of mandamus, it cannot be issued to compel the JBC to
count the petitioner's votes for it will not lie to control the performance of a discretionary act.17

The JBC further enunciates that the petitioner has no locus standi to institute this Petition in his
capacity as Chairman of the House of Representatives Committee on Justice and Ex Officio Member
of the JBC without the requisite resolution from both Houses of Congress authorizing him to sue as a
member thereof, which absence is a fatal defect rendering this Petition dismissible.18

In the same vein, the JBC asseverates that this Petition should also be dismissed as the allegations
herein are mere rehash of the arguments and dissents in Chavez, which have already been
exhaustively litigated and settled therein by this Court, more in particular, the interpretation of
Section 8(1), Article VIII of the 1987 Constitution, hence, barred by the doctrine of stare
decisis. Similarly, there exists no substantial reason or even supervening event or material change
of circumstances that warrants Chavez's reversal.19

The JBC likewise insists that it was the intent of the Framers of the Constitution for the JBC to have
only seven members. The reason for that was laid down in Chavez, that is, to provide a solution
should there be a stalemate in the voting. As to the alleged oversight and technical omission of the
Framers in changing the provision on the JBC to reflect the bicameral nature of Congress, these are
flimsy excuses to override the clear provision of the Constitution and to disturb settled jurisprudence.
As explained in Chavez, Congress' membership in the JBC was not in the interest of a certain
constituency but in reverence to it as a major branch of government.20

Last of all, the JBC holds that should this Petition be granted, there would be an imbalance in favor
of Congress with respect to the representation in the JBC of the three main and co-equal branches
of the government. For the unmistakable tenor of Section 8(1), Article VIII of the 1987 Constitution
was to treat each ex officio member as representing one co-equal branch of government. And, even
assuming that the current six-month rotational scheme in the JBC created an imbalance between the
two Houses of Congress, it is not within the power of this Court or the JBC to remedy such
imbalance. For the remedy lies in the amendment of this constitutional provision.21

Given the foregoing arguments, the issues ought to be addressed by this Court can be summed up
into: (1) whether the petitioner has locus standi to file this Petition even without the requisite
resolution from both Houses of Congress permitting him to do so; (2) whether the petitioner's direct
resort to this Court via a Petition for Certiorari and Mandamus is the plain, speedy and adequate
remedy available to him to assail the JBC's adoption of the rotational representation leading to the
non-counting of his votes in its En Banc deliberations last December 2 and 9, 2016; (3) whether the
JBC acted with grave abuse of discretion in adopting the six-month rotational scheme of both
Houses of Congress resulting in the non-counting of the petitioner's votes in its En Banc
deliberations last December 2 and 9, 2016; (4) whether the JBC can be compelled through
mandamus to count the petitioner's votes in its En Banc deliberations last December 2 and 9, 2016;
and (4) whether this Court's ruling in Chavez applies as stare decisis to the present case.

Before delving into the above-stated issues, this Court would like to note that this Petition was
primarily filed because of the non-counting of the petitioner's votes in the JBC En Banc deliberations
last December 2 and 9, 2016 held for the purpose of determining, among others, who will be the
possible successors of the then retiring Associate Justices of the Supreme Court Perez and Brion,
whose retirements were set on December 14 and 29, 2016, respectively. The list of nominees will
then be forwarded to the President as the appointing authority. With the appointments of Associate
Justices Samuel R. Martires (Martires) and Noel G. Tijam (Tijam) on March 2 and 8, 2017,
respectively, this Petition has now been rendered moot insofar as the petitioner's prayers to (1)
reverse and set aside the JBC En Banc deliberations last December 2 and 9, 2016; and (2) direct
the JBC to count his votes therein as its ex officio member,22 are concerned.

As a rule, courts do not entertain moot questions. An issue becomes moot and academic when it
ceases to present a justiciable controversy so that a declaration on the issue would be of no
practical use or value. This notwithstanding, the Court in a number of cases held that the moot and
academic principle is not a magical formula that can automatically dissuade the courts from
resolving a case. Courts will still decide cases otherwise, moot and academic if: (1) there is a grave
violation of the Constitution; (2) the exceptional character of the situation and the paramount public
interest is involved; (3) when the constitutional issue raised requires formulation of controlling
principles to guide the bench, the bar, and the public; and (4) the case is capable of repetition yet
evading review.23 Considering that all the arguments herein once again boil down to the proper
interpretation of Section 8(1), Article VIII of the 1987 Constitution on congressional representation in
the JBC, this Court deems it proper to proceed on deciding this Petition despite its mootness to
settle the matter once and for all.

Having said that, this Court shall now resolve the issues in seriatim.
On petitioner's locus standi. The petitioner brings this suit in his capacity as the current Chairman of
the House of Representatives Committee on Justice and Ex Officio Member of the JBC. His legal
standing was challenged by the JBC for lack of an enabling resolution for that purpose coming from
both Houses of Congress.

Locus standi or legal standing is defined as a personal and substantial interest in a case such that
the party has sustained or will sustain direct injury as a result of the challenged governmental act. It
requires a personal stake in the outcome of the controversy as to assure the concrete adverseness
which sharpens the presentation of issues upon which the court so largely depends for illumination
of difficult constitutional questions.24 With that definition, therefore, a party will be allowed to litigate
only when he can demonstrate that (1) he has personally suffered some actual or threatened injury
because of the allegedly illegal conduct of the government; (2) the injury is fairly traceable to the
challenged action; and (3) the injury is likely to be redressed by the remedy being
sought.25 Otherwise, he/she would not be allowed to litigate. Nonetheless, in a long line of cases,
concerned citizens, taxpayers and legislators when specific requirements have been met have been
given standing by this Court. This was succinctly explained in Francisco, Jr. v. The House of
Representatives, thus:

When suing as a citizen, the interest of the petitioner assailing the constitutionality of a statute must
be direct and personal. He must be able to show, not only that the law or any government act is
invalid, but also that he sustained or is in imminent danger of sustaining some direct injury as a
result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must
appear that the person complaining has been or is about to be denied some right or privilege to
which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by
reason of the statute or act complained of. In fine, when the proceeding involves the assertion of a
public right, the mere fact that he is a citizen satisfies the requirement of personal interest.

In the case of a taxpayer, he is allowed to sue where there is a claim that public funds are illegally
disbursed, or that public money is being deflected to any improper purpose, or that there is a
wastage of public funds through the enforcement of an invalid or unconstitutional law. Before he can
invoke the power of judicial review, however, he must specifically prove that he has sufficient interest
in preventing the illegal expenditure of money raised by taxation and that he would sustain a direct
injury as a result of the enforcement of the questioned statute or contract. It is not sufficient that he
has merely a general interest common to all members of the public.

xxxx

As for a legislator, he is allowed to sue to question the validity of any official action which he claims
infringes his prerogatives as a legislator. Indeed, a member of the House of Representatives has
standing to maintain inviolate the prerogatives, powers and privileges vested by the Constitution in
his office.26 (Emphasis and underscoring supplied.)

The legal standing of each member of Congress was also upheld in Philippine Constitution
Association v. Enriquez,27 where this Court pronounced that:

The legal standing of the Senate, as an institution, was recognized in Gonzales v. Macaraig,
Jr. (citation omitted). In said case, 23 Senators, comprising the entire membership of the Upper
House of Congress, filed a petition to nullify the presidential veto of Section 55 of the GAA of 1989.
The filing of the suit was authorized by Senate Resolution No. 381, adopted on February 2, 1989,
and which reads as follows:
Authorizing and Directing the Committee on Finance to Bring in the Name of the Senate of the
Philippines the Proper Suit with the Supreme Court of the Philippines contesting the Constitutionality
of the Veto by the President of Special and General Provisions, particularly Section 55, of the
General Appropriation Bill of 1989 (H.B. No. 19186) and For Other Purposes.

In the United States, the legal standing of a House of Congress to sue has been recognized (citation
omitted).

While the petition in G.R. No. 113174 was filed by 16 Senators, including the Senate President and
the Chairman of the Committee on Finance, the suit was not authorized by the Senate itself.
Likewise, the petitions in G.R. Nos. 113766 and 113888 were filed without an enabling resolution for
the purpose.

Therefore, the question of the legal standing of petitioners in the three cases becomes a preliminary
issue before this Court can inquire into the validity of the presidential veto and the conditions for the
implementation of some items in the GAA of 1994.

We rule that a member of the Senate, and of the House of Representatives for that matter, has the
legal standing to question the validity of a presidential veto or a condition imposed on an item in an
appropriation bill.

Where the veto is claimed to have been made without or in excess of the authority vested on the
President by the Constitution, the issue of an impermissible intrusion of the Executive into the
domain of the Legislature arises (citation omitted).

To the extent the powers of Congress are impaired, so is the power of each member thereof, since
his office confers a right to participate in the exercise of the powers of that institution (citation
omitted).

An act of the Executive which injures the institution of Congress causes a derivative but nonetheless
substantial injury, which can be questioned by a member of Congress (citation omitted). In such a
case, any member of Congress can have a resort to the courts.

Former Chief Justice Enrique M. Fernando, as Amicus Curiae, noted:

This is, then, the clearest case of the Senate as a whole or individual Senators as such having a
substantial interest in the question at issue. It could likewise be said that there was the requisite
injury to their rights as Senators. It would then be futile to raise any locus standi issue. Any intrusion
into the domain appertaining to the Senate is to be resisted. Similarly, if the situation were reversed,
and it is the Executive Branch that could allege a transgression, its officials could likewise file the
corresponding action. What cannot be denied is that a Senator has standing to maintain inviolate the
prerogatives, powers and privileges vested by the Constitution in his office (citation
omitted).28 (Emphases and underscoring supplied.)

It is clear therefrom that each member of Congress has a legal standing to sue even without an
enabling resolution for that purpose so long as the questioned acts invade the powers, prerogatives
and privileges of Congress. Otherwise stated, whenever the acts affect the powers, prerogatives and
privileges of Congress, anyone of its members may validly bring an action to challenge the same to
safeguard and maintain the sanctity thereof.
With the foregoing, this Court sustains the petitioner's legal standing as Member of the House of
Representatives and as the Chairman of its Committee on Justice to assail the alternate
representation of Congress in the JBC, which arrangement led to the non-counting of his votes in its
En Banc deliberations last December 2 and 9, 2016, as it allegedly affects adversely Congress'
prerogative to be fully represented before the said body.

On petitioner's direct resort to this Court via certiorari petition. The JBC questions the propriety of the
petitioner's direct resort to this Court via the present Petition to assail its adoption of the rotational
representation of Congress resulting in the non-counting of his votes in its En Banc deliberations last
December 2 and 9, 2016. The JBC insists that the said scheme was a creation of Congress itself; as
such, the petitioner's plain, speedy and adequate remedy is to appeal to Congress to repudiate the
same. Direct resort to this Court should not be allowed if there is a remedy available to the petitioner
before Congress.

Generally, the writ of certiorari can only be availed of in the absence of an appeal or any plain,
speedy and adequate remedy in the ordinary course of law. In Bordomeo v. Court of
Appeals, however, this Court clarified that it is inadequacy that must usually determine the propriety
of certiorari and not the mere absence of all other remedies and the danger of failure of justice
without the writ. A remedy is considered plain, speedy and adequate if it will promptly relieve the
petitioner from the injurious effects of the judgment, order, or resolution of the lower court or
agency.29

In the same way, as a matter of policy, direct resort to this Court will not be entertained unless the
redress desired cannot be obtained in the appropriate lower courts, and exceptional and compelling
circumstances, such as in cases involving national interest and those of serious implications, justify
the availment of the extraordinary remedy of the writ of certiorari, calling for the exercise of its
primary jurisdiction.30 In The Diocese of Bacolod v. Commission on Elections,31 and again in Maza v.
Turla,32this Court took pains in enumerating the circumstances that would warrant a direct resort to
this Court, to wit: (1) when there are genuine issues of constitutionality that must be addressed at
the most immediate time; (2) when the issues involved are of transcendental importance; (3) cases
of first impression as no jurisprudence yet exists that will guide the lower courts on this matter; (4)
the constitutional issues raised are better decided by this court; (5) the time element presented in
this case cannot be ignored; (6) the filed petition reviews the act of a constitutional organ; (7)
petitioners rightly claim that they had no other plain, speedy, and adequate remedy in the ordinary
course of law; and (8) the petition includes questions that are dictated by public welfare and the
advancement of public policy, or demanded by the broader interest of justice, or the orders
complained of were found to be patent nullities, or the appeal was considered as clearly an
inappropriate remedy.33

Here, while this Court agrees with the JBC that the petitioner's preliminary remedy to question the
rotational arrangement of Congress is to ask the latter to repudiate the same, this, however, cannot
be considered plain, speedy and adequate. This Court is, thus, inclined to sustain the petitioner's
direct resort to this Court not only because it is the plain, speedy and adequate remedy available to
him but also by reason of the constitutional issues involved herein and the urgency of the matter. As
correctly pointed out by the OSG, the Constitution mandates that any vacancy to the office of an
Associate Justice of the Supreme Court must be filled up within the 90-day period from its
occurrence. Therefore, the JBC must submit the list of nominees prior to the start of that period. As
the nominations covered by the questioned December 2016 JBC En Banc deliberations were
intended for vacancies created by then Associate Justices Perez and Brion, who respectively retired
last December 14 and 29, 2016, hence, any resort to Congress during that time would already be
inadequate since the JBC list of nominees would be submitted any moment to the Office of the
President for the appointment of the next Associate Justices of the Supreme Court. Since time is of
the essence, the petitioner's direct resort to this Court is warranted.
On the alleged grave abuse of discretion of the JBC in adopting the rotational representation of
Congress correctible by certiorari. The petitioner ascribed grave abuse of discretion on the part of
the JBC in its adoption of the rotational scheme, which led to the non-counting of his votes in its En
Banc deliberations last December 2 and 9, 2016, as it deprives Congress of its full representation
therein. The JBC, on the other hand, believes otherwise for it merely acted in accordance with the
mandate of the Constitution and with the ruling in Chavez. Also, such rotational scheme was a
creation of Congress, which it merely adopted.

Certiorari and Prohibition under Rule 65 of the present Rules of Court are the two special civil
actions used for determining and correcting grave abuse of discretion amounting to lack or excess of
jurisdiction. The sole office of the writ of certiorari is the correction of errors of jurisdiction, which
necessarily includes the commission of grave abuse of discretion amounting to lack of
jurisdiction.34 The burden is on the petitioner to prove that the respondent tribunal committed not
merely a reversible error but also a grave abuse of discretion amounting to lack or excess of
jurisdiction. Showing mere abuse of discretion is not enough, for the abuse must be shown to be
grave. Grave abuse of discretion means either that the judicial or quasi-judicial power was exercised
in an arbitrary or despotic manner by reason of passion or personal hostility, or that the respondent
judge, tribunal or board evaded a positive duty, or virtually refused to perform the duty enjoined or to
act in contemplation of law, such as when such judge, tribunal or board exercising judicial or quasi-
judicial powers acted in a capricious or whimsical manner as to be equivalent to lack of jurisdiction.35

But, the remedies of certiorari and prohibition are necessarily broader in scope and reach before this
Court as the writs may be issued to correct errors of jurisdiction committed not only by a tribunal,
corporation, board or officer exercising judicial, quasi-judicial or ministerial functions but also to set
right, undo and restrain any act of grave abuse of discretion amounting to lack or excess of
jurisdiction by any branch or instrumentality of the Government, even if the latter does not exercise
judicial, quasi-judicial or ministerial functions. Thus, they are appropriate remedies to raise
constitutional issues and to review and/or prohibit or nullify the acts of legislative and executive
officials.36

Here, it is beyond question that the JBC does not fall within the scope of a tribunal, board, or officer
exercising judicial or quasi-judicial functions. Neither did it act in any judicial or quasi-judicial
1âwphi 1

capacity nor did it assume any performance of judicial or quasi-judicial prerogative in adopting the
rotational scheme of Congress, which was the reason for not counting the votes of the petitioner in
its En Banc deliberations last December 2 and 9, 2016. But, despite this, its act is still not beyond
this Court's reach as the same is correctible by certiorari if it is tainted with grave abuse of discretion
even if it is not exercising judicial and quasi-judicial functions. Now, did the JBC abuse its discretion
in adopting the six-month rotational arrangement and in not counting the votes of the petitioner? This
Court answers in the negative. As correctly pointed out by the JBC, in adopting the said
arrangement, it merely acted pursuant to the Constitution and the Chavez ruling, which both require
only one representative from Congress in the JBC. It cannot, therefore, be faulted for simply
complying with the Constitution and jurisprudence. Moreover, said arrangement was crafted by both
Houses of Congress and the JBC merely adopted the same. By no stretch of imagination can it be
regarded as grave abuse of discretion on the part of the JBC.

With the foregoing, despite this Court's previous declaration that certiorari is the plain, speedy and
adequate remedy available to petitioner, still the same cannot prosper for the petitioner's failure to
prove that the JBC acted with grave abuse of discretion in adopting the rotational scheme.

On the propriety of mandamus. It is essential to the issuance of a writ of mandamus that the
applicant has a clear legal right to the thing demanded and it must be the imperative duty of the
respondent to perform the act required. The burden is on the petitioner to show that there is such a
clear legal right to the performance of the act, and a corresponding compelling duty on the part of
the respondent to perform the act. As an extraordinary writ, it lies only to compel an officer to
perform a ministerial duty, not a discretionary one.37 A clear line demarcates a discretionary act
from a ministerial one. A purely ministerial act is one which an officer or tribunal performs in a given
state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard
to or the exercise of his own judgment upon the propriety or impropriety of the act done.38 On the
other hand, if the law imposes a duty upon a public officer and gives him the right to decide how or
when the duty shall be performed, such duty is discretionary and not ministerial. The duty is
ministerial only when the discharge of the same requires neither the exercise of official discretion or
judgment.39 Clearly, the use of discretion and the performance of a ministerial act are mutually
exclusive. Further, the writ of mandamus does not issue to control or review the exercise of
discretion or to compel a course of conduct.40

In the case at bench, the counting of votes in the selection of the nominees to the judiciary may only
be considered a ministerial duty of the JBC if such votes were cast by its rightful members and not
by someone, like the petitioner, who is not considered a member during the En Banc deliberations
last December 2 and 9, 2016. For during the questioned period, the lawful representative of
Congress to the JBC is a member of the Senate and not of the House of Representatives as per
their agreed rotational scheme. Considering that a member of the Senate already cast his vote
therein, the JBC has the full discretion not to count the votes of the petitioner for it is mandated by
both the Constitution and jurisprudence to maintain that Congress will only have one representative
in the JBC. As the act of the JBC involves a discretionary one, accordingly, mandamus will not lie.

On the application of Chavez as stare decisis in this case. The petitioner strongly maintains
that Chavez must be revisited and reversed due to its unexecutability. But the JBC insists that the
arguments herein are mere rehash of those in Chavez, hence, already barred by the doctrine
of stare decisis. Also, there is no cogent reason for Chavez's reversal.

This Court takes another glance at the arguments in Chavez and compares them with the present
arguments of the petitioner. A careful perusal, however, reveals that, although the petitioner
questioned the JBC's adoption of the six-month rotational representation of Congress leading to the
non-counting of his votes in its En Banc deliberations last December 2 and 9, 2016, the supporting
arguments hereof still boil down to the proper interpretation of Section 8(1), Article VIII of the 1987
Constitution. Hence, being mere rehash of the arguments in Chavez, the application of the doctrine
of stare decisis in this case is inevitable. More so, the petitioner failed to present strong and
compelling reason not to rule this case in the same way that this Court ruled Chavez.

As stated in the beginning of this ponencia, stare decisis et non quieta movere is a doctrine which
means to adhere to precedents and not to unsettle things which are established. This is embodied in
Article 8 of the Civil Code of the Philippines which provides, thus:

ART. 8. Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the
legal system of the Philippines.

The doctrine enjoins adherence to judicial precedents and requires courts in a country to follow the
rule established in a decision of the Supreme Court thereof. That decision becomes a judicial
precedent to be followed in subsequent cases by all courts in the land. The doctrine is based on the
principle that once a question of law bas been examined and decided, it should be deemed settled
and closed to further argument. The same is grounded on the necessity for securing certainty and
stability of judicial decisions, thus, time and again, the court has held that it is a very desirable and
necessary judicial practice that when a court bas laid down a principle of law as applicable to a
certain state of facts, it will adhere to that principle and apply it to all future cases in which the facts
are substantially the same. It simply means that for the sake of certainty, a conclusion reached in
one case should be applied to those that follow if the facts are substantially the same, even though
the parties may be different. It proceeds from the first principle of justice that, absent any powerful
countervailing considerations, like cases ought to be decided alike. Thus, where the same questions
relating to the same event have been put forward by the parties similarly situated as in a previous
case litigated and decided by a competent court, the rule of stare decisis is a bar to any attempt to
relitigate the same issue. The doctrine has assumed such value in our judicial system that the Court
has ruled that " [a]bandonment thereof must be based only on strong and compelling reasons,
otherwise, the becoming virtue of predictability which is expected from this Court would be
immeasurably affected and the public's confidence in the stability of the solemn pronouncements
diminished." Verily, only upon showing that circumstances attendant in a particular case override the
great benefits derived by our judicial system from the doctrine of stare decisis, can the courts be
justified in setting aside the same.41

Here, the facts are exactly the same as in Chavez, where this Court has already settled the issue of
interpretation of Section 8(1), Article VIII of the 1987 Constitution. Truly, such ruling may not be
unanimous, but it is undoubtedly a reflection of the wisdom of the majority of members of this Court
on that matter. Chavez cannot simply be regarded as an erroneous application of the questioned
constitutional provision for it merely applies the clear mandate of the law, that is, Congress is entitled
to only one representative in the JBC in the same way that its co-equal branches are.

As this Court declared in Chavez, Section 8(1), Article VIII of the 1987 Constitution is clear,
categorical and unambiguous. Thus, it needs no further construction or interpretation. Time and time
again, it has been repeatedly declared by this Court that where the law speaks in clear and
categorical language, there is no room for interpretation, only application.42 The wordings of
Section 8(1), Article VIII of the 1987 Constitution are to be considered as indicative of the final intent
of its Framers, that is, for Congress as a whole to only have one representative to sit in the JBC.
This Court, therefore, cannot simply make an assumption that the Framers merely by oversight
failed to take into account the bicameral nature of Congress in drafting the same. As further laid
down in Chavez, the Framers were not keen on adjusting the provision on congressional
representation in the JBC as it was not in the exercise of its primary function, which is to legislate.
Notably, the JBC was created to support the executive power to appoint, and Congress, as one
whole body, was merely assigned a contributory non-legislative function. No parallelism can be
drawn between the representative of Congress in the JBC and the exercise by Congress of its
legislative powers under Article VI and constituent powers under Article XVII of the Constitution.
Congress, in relation to the executive and judicial branches of government, is constitutionally treated
as another co-equal branch in the matter of its JBC representation.43

This Court cannot succumb to the argument that Congress, being composed of two distinct and
separate chambers, cannot represent each other in the JBC. Again, as this Court explained
in Chavez, such an argument is misplaced because in the JBC, any member of Congress, whether
from the Senate or the House of Representatives, is constitutionally empowered to represent the
entire Congress. It may be a constricted constitutional authority, but it is not an absurdity. To
broaden the scope of congressional representation in the JBC is tantamount to the inclusion of a
subject matter which was not included in the provision as enacted. True to its constitutional
mandate, the Court cannot craft and tailor constitutional provisions in order to accommodate all
situations no matter how ideal or reasonable the proposed solution may sound. To the exercise of
this intrusion, the Court declines.44

While it is true that Section 8(1), Article VIII of the 1987 Constitution did not explicitly state that the
JBC shall be composed of seven members, however, the same is implied in the enumeration of who
will be the members thereof. And though it is unnecessary for the JBC composition to be an odd
number as no tie-breaker is needed in the preparation of a shortlist since judicial nominees are not
decided by a "yes" or "no" vote, still, JBC's membership cannot be increased from seven to eight for
it will be a clear violation of the aforesaid constitutional provision. To add another member in the JBC
or to increase the representative of Congress to the JBC, the remedy is not judicial but constitutional
amendment.

In sum, this Court will not overthrow Chavez for it is in accord with the constitutional mandate of
giving Congress "a representative" in the JBC. In the same manner, the adoption of the rotational
scheme will not in any way deprive Congress of its full participation in the JBC for such an
arrangement is also in line with that constitutional mandate.

WHEREFORE, premises considered, the instant Petition for Certiorari and Mandamus is
hereby DISMISSED for lack of merit.

SO ORDERED.

EN BANC

G.R. No. 211833, April 07, 2015

FERDINAND R. VILLANUEVA, PRESIDING JUDGE, MCTC, COMPOSTELA-NEW BATAAN,

COMPOSTELA VALLEY PROVINCE, Petitioner, v. JUDICIAL AND BAR COUNCIL, Respondent.

DECISION

REYES, J.:

Presiding Judge Ferdinand R. Villanueva (petitioner) directly came to this Court via a Petition for Prohibition,
Mandamus, and Certiorari, and Declaratory Relief1 under Rules 65 and 63 of the Rules of Court, respectively,
with prayer for the issuance of a temporary restraining order and/or writ of preliminary injunction, to assail
the policy of the Judicial and Bar Council (JBC), requiring five years of service as judges of first-level courts
before they can qualify as applicant to second-level courts, on the ground that it is unconstitutional, and was
issued with grave abuse of discretion. cha nRoblesvi rtua lLaw lib rary

The Facts

The petitioner was appointed on September 18, 2012 as the Presiding Judge of the Municipal Circuit Trial
Court, Compostela-New Bataan, Poblacion, Compostela Valley Province, Region XI, which is a first-level
court. On September 27, 2013, he applied for the vacant position of Presiding Judge in the following
Regional Trial Courts (RTCs): Branch 31, Tagum City; Branch 13, Davao City; and Branch 6, Prosperidad,
Agusan Del Sur.

In a letter2 dated December 18, 2013, JBC's Office of Recruitment, Selection and Nomination, informed the
petitioner that he was not included in the list of candidates for the said stations. On the same date, the
petitioner sent a letter, through electronic mail, seeking reconsideration of his non-inclusion in the list of
considered applicants and protesting the inclusion of applicants who did not pass the prejudicature
examination.

The petitioner was informed by the JBC Executive Officer, through a letter3 dated February 3, 2014, that his
protest and reconsideration was duly noted by the JBC en banc. However, its decision not to include his
name in the list of applicants was upheld due to the JBC's long-standing policy of opening the chance for
promotion to second-level courts to, among others, incumbent judges who have served in their current
position for at least five years, and since the petitioner has been a judge only for more than a year, he was
excluded from the list. This caused the petitioner to take recourse to this Court.
In his petition, he argued that: (1) the Constitution already prescribed the qualifications of an RTC judge,
and the JBC could add no more; (2) the JBC's five-year requirement violates the equal protection and due
process clauses of the Constitution; and (3) the JBC's five-year requirement violates the constitutional
provision on Social Justice and Human Rights for Equal Opportunity of Employment. The petitioner also
asserted that the requirement of the Prejudicature Program mandated by Section 104 of Republic Act (R.A.)
No. 85575 should not be merely directory and should be fully implemented. He further alleged that he has all
the qualifications for the position prescribed by the Constitution and by Congress, since he has already
complied with the requirement of 10 years of practice of law.

In compliance with the Court's Resolution6 dated April 22, 2014, the JBC7 and the Office of the Solicitor
General (OSG)8separately submitted their Comments. Summing up the arguments of the JBC and the OSG,
they essentially stated that the petition is procedurally infirm and that the assailed policy does not violate
the equal protection and due process clauses. They posited that: (1) the writ of certiorari and prohibition
cannot issue to prevent the JBC from performing its principal function under the Constitution to recommend
appointees to the Judiciary because the JBC is not a tribunal exercising judicial or quasi-judicial function; (2)
the remedy of mandamus and declaratory relief will not lie because the petitioner has no clear legal right
that needs to be protected; (3) the equal protection clause is not violated because the classification of lower
court judges who have served at least five years and those who have served less than five years is valid as
it is performance and experience based; and (4) there is no violation of due process as the policy is merely
internal in nature.
chanRoblesv irt ual Lawlib rary

The Issue

The crux of this petition is whether or not the policy of JBC requiring five years of service as judges of first-
level courts before they can qualify as applicant to second-level courts is constitutional.

Ruling of the Court

Procedural Issues:

Before resolving the substantive issues, the Court considers it necessary to first determine whether or not
the action for certiorari, prohibition and mandamus, and declaratory relief commenced by the petitioner was
proper.

One. The remedies of certiorari and prohibition are tenable. "The present Rules of Court uses two special
civil actions for determining and correcting grave abuse of discretion amounting to lack or excess of
jurisdiction. These are the special civil actions for certiorari and prohibition, and both are governed by Rule
65."9 As discussed in the case of Maria Carolina P. Araullo, etc., et al. v. Benigno Simeon C. Aquino III, etc.,
et al.,10 this Court explained that: chanroble svirtuallaw lib rary

With respect to the Court, however, the remedies of certiorari and prohibition are necessarily broader in
scope and reach, and the writ of certiorari or prohibition may be issued to correct errors of jurisdiction
committed not only by a tribunal, corporation, board or officer exercising judicial, quasi-judicial or
ministerial functions but also to set right, undo and restrain any act of grave abuse of discretion amounting
to lack or excess of jurisdiction by any branch or instrumentality of the Government, even if the latter does
not exercise judicial, quasi-judicial or ministerial functions. This application is expressly authorized by the
text of the second paragraph of Section 1, supra.

Thus, petitions for certiorari and prohibition are appropriate remedies to raise constitutional issues and to
review and/or prohibit or nullify the acts of legislative and executive officials.11 (Citation omitted)
In this case, it is clear that the JBC does not fall within the scope of a tribunal, board, or officer exercising
judicial or quasi-judicial functions. In the process of selecting and screening applicants, the JBC neither
acted in any judicial or quasi-judicial capacity nor assumed unto itself any performance of judicial or quasi-
judicial prerogative. However, since the formulation of guidelines and criteria, including the policy that the
petitioner now assails, is necessary and incidental to the exercise of the JBC's constitutional mandate, a
determination must be made on whether the JBC has acted with grave abuse of discretion amounting to lack
or excess of jurisdiction in issuing and enforcing the said policy.

Besides, the Court can appropriately take cognizance of this case by virtue of the Court's power of
supervision over the JBC. Jurisprudence provides that the power of supervision is the power of oversight, or
the authority to see that subordinate officers perform their duties. It ensures that the laws and the rules
governing the conduct of a government entity are observed and complied with. Supervising officials see to it
that rules are followed, but they themselves do not lay down such rules, nor do they have the discretion to
modify or replace them. If the rules are not observed, they may order the work done or redone, but only to
conform to such rules. They may not prescribe their own manner of execution of the act. They have no
discretion on this matter except to see to it that the rules are followed.12

Following this definition, the supervisory authority of the Court over the JBC is to see to it that the JBC
complies with its own rules and procedures. Thus, when the policies of the JBC are being attacked, then the
Court, through its supervisory authority over the JBC, has the duty to inquire about the matter and ensure
that the JBC complies with its own rules.

Two. The remedy of mandamus cannot be availed of by the petitioner in assailing JBC's policy. The
petitioner insisted that mandamus is proper because his right was violated when he was not included in the
list of candidates for the RTC courts he applied for. He said that his non-inclusion in the list of candidates for
these stations has caused him direct injury.

It is essential to the issuance of a writ of mandamus that the applicant should have a clear legal right to the
thing demanded and it must be the imperative duty of the respondent to perform the act required.13 The
petitioner bears the burden to show that there is such a clear legal right to the performance of the act, and
a corresponding compelling duty on the part of the respondent to perform the act. The remedy of
mandamus, as an extraordinary writ, lies only to compel an officer to perform a ministerial duty, not a
discretionary one.14 Clearly, the use of discretion and the performance of a ministerial act are mutually
exclusive.

The writ of mandamus does not issue to control or review the exercise of discretion or to compel a course of
conduct, which, it quickly seems to us, was what the petitioner would have the JBC do in his favor. The
function of the JBC to select and recommend nominees for vacant judicial positions is discretionary, not
ministerial. Moreso, the petitioner cannot claim any legal right to be included in the list of nominees for
judicial vacancies. Possession of the constitutional and statutory qualifications for appointment to the
judiciary may not be used to legally demand that one's name be included in the list of candidates for a
judicial vacancy. One's inclusion in the list of the candidates depends on the discretion of the JBC, thus: chanroblesvi rt uallawl ibra ry

The fact that an individual possesses the constitutional and statutory qualifications for appointment to the
Judiciary does not create an entitlement or expectation that his or her name be included in the list of
candidates for a judicial vacancy. By submitting an application or accepting a recommendation, one submits
to the authority of the JBC to subject the former to the search, screening, and selection process, and to use
its discretion in deciding whether or not one should be included in the list. Indeed, assuming that if one has
the legal right to be included in the list of candidates simply because he or she possesses the constitutional
and statutory qualifications, then the application process would then be reduced to a mere mechanical
function of the JBC; and the search, screening, and selection process would not only be unnecessary, but
also improper. However, this is clearly not the constitutional intent. One's inclusion in the list of
candidates is subject to the discretion of the JBC over the selection of nominees for a particular
judicial post. Such candidate's inclusion is not, therefore, a legally demandable right, but simply a privilege
the conferment of which is subject to the JBC's sound discretion.

Moreover, petitioner is essentially seeking a promotional appointment, that is, a promotion from a first-level
court to a second level court. There is no law, however, that grants him the right to a promotion to
second-level courts.15 (Emphasis in the original)
Clearly, to be included as an applicant to second-level judge is not properly compellable by mandamus
inasmuch as it involves the exercise of sound discretion by the JBC.

Three. The petition for declaratory relief is improper. "An action for declaratory relief should be filed by a
person interested under a deed, a will, a contract or other written instrument, and whose rights are affected
by a statute, an executive order, a regulation or an ordinance. The relief sought under this remedy includes
the interpretation and determination of the validity of the written instrument and the judicial declaration of
the parties' rights or duties thereunder."16 "[T]he purpose of the action is to secure an authoritative
statement of the rights and obligations of the parties under a statute, deed, contract, etc., for their guidance
in its enforcement or compliance and not to settle issues arising from its alleged breach."17

In this case, the petition for declaratory relief did not involve an unsound policy. Rather, the petition
specifically sought a judicial declaration that the petitioner has the right to be included in the list of
applicants although he failed to meet JBC's five-year requirement policy. Again, the Court reiterates that no
person possesses a legal right under the Constitution to be included in the list of nominees for vacant
judicial positions. The opportunity of appointment to judicial office is a mere privilege, and not a judicially
enforceable right that may be properly claimed by any person. The inclusion in the list of candidates, which
is one of the incidents of such appointment, is not a right either. Thus, the petitioner cannot claim any right
that could have been affected by the assailed policy.

Furthermore, the instant petition must necessarily fail because this Court does not have original jurisdiction
over a petition for declaratory relief even if only questions of law are involved.18 The special civil action of
declaratory relief falls under the exclusive jurisdiction of the appropriate RTC pursuant to Section 1919 of
Batas Pambansa Blg. 129, as amended by R.A.No. 7691.20

Therefore, by virtue of the Court's supervisory duty over the JBC and in the exercise of its expanded judicial
power, the Court assumes jurisdiction over the present petition. But in any event, even if the Court will set
aside procedural infirmities, the instant petition should still be dismissed. c hanRoble svirtual Lawli bra ry

Substantive Issues

As an offspring of the 1987 Constitution, the JBC is mandated to recommend appointees to the judiciary and
only those nominated by the JBC in a list officially transmitted to the President may be appointed by the
latter as justice or judge in the judiciary. Thus, the JBC is burdened with a great responsibility that is
imbued with public interest as it determines the men and women who will sit on the judicial bench. While
the 1987 Constitution has provided the qualifications of members of the judiciary, this does not preclude the
JBC from having its own set of rules and procedures and providing policies to effectively ensure its mandate.

The functions of searching, screening, and selecting are necessary and incidental to the JBC's principal
function of choosing and recommending nominees for vacancies in the judiciary for appointment by the
President. However, the Constitution did not lay down in precise terms the process that the JBC shall follow
in determining applicants' qualifications. In carrying out its main function, the JBC has the authority to set
the standards/criteria in choosing its nominees for every vacancy in the judiciary, subject only to the
minimum qualifications required by the Constitution and law for every position. The search for these long
held qualities necessarily requires a degree of flexibility in order to determine who is most fit among the
applicants. Thus, the JBC has sufficient but not unbridled license to act in performing its duties.

JBC's ultimate goal is to recommend nominees and not simply to fill up judicial vacancies in order to
promote an effective and efficient administration of justice. Given this pragmatic situation, the JBC had to
establish a set of uniform criteria in order to ascertain whether an applicant meets the minimum
constitutional qualifications and possesses the qualities expected of him and his office. Thus, the adoption of
the five-year requirement policy applied by JBC to the petitioner's case is necessary and incidental to the
function conferred by the Constitution to the JBC.

Equal Protection

There is no question that JBC employs standards to have a rational basis to screen applicants who cannot be
all accommodated and appointed to a vacancy in the judiciary, to determine who is best qualified among the
applicants, and not to discriminate against any particular individual or class.

The equal protection clause of the Constitution does not require the universal application of the laws to all
persons or things without distinction; what it requires is simply equality among equals as determined
according to a valid classification. Hence, the Court has affirmed that if a law neither burdens a fundamental
right nor targets a suspect class, the classification stands as long as it bears a rational relationship to some
legitimate government end.21 ChanRobles Vi rtua lawlib rary

"The equal protection clause, therefore, does not preclude classification of individuals who may be accorded
different treatment under the law as long as the classification is reasonable and not arbitrary."22 "The mere
fact that the legislative classification may result in actual inequality is not violative of the right to equal
protection, for every classification of persons or things for regulation by law produces inequality in some
degree, but the law is not thereby rendered invalid."23

That is the situation here. In issuing the assailed policy, the JBC merely exercised its discretion in
accordance with the constitutional requirement and its rules that a member of the Judiciary must be of
proven competence, integrity, probity and independence.24"To ensure the fulfillment of these standards in
every member of the Judiciary, the JBC has been tasked to screen aspiring judges and justices, among
others, making certain that the nominees submitted to the President are all qualified and suitably best for
appointment. In this way, the appointing process itself is shielded from the possibility of extending judicial
appointment to the undeserving and mediocre and, more importantly, to the ineligible or disqualified."25
Consideration of experience by JBC as one factor in choosing recommended appointees does not constitute a
violation of the equal protection clause. The JBC does not discriminate when it employs number of years of
service to screen and differentiate applicants from the competition. The number of years of service provides
a relevant basis to determine proven competence which may be measured by experience, among other
factors. The difference in treatment between lower court judges who have served at least five years and
those who have served less than five years, on the other hand, was rationalized by JBC as follows: chan roble svirtual lawlib rary

Formulating policies which streamline the selection process falls squarely under the purview of the JBC. No
other constitutional body is bestowed with the mandate and competency to set criteria for applicants that
refer to the more general categories of probity, integrity and independence.

The assailed criterion or consideration for promotion to a second-level court, which is five years experience
as judge of a first-level court, is a direct adherence to the qualities prescribed by the Constitution. Placing a
premium on many years of judicial experience, the JBC is merely applying one of the stringent constitutional
standards requiring that a member of the judiciary be of "proven competence." In determining
competence, the JBC considers, among other qualifications, experience and performance.

Based on the JBC's collective judgment, those who have been judges of first-level courts for five (5) years
are better qualified for promotion to second-level courts. It deems length of experience as a judge as
indicative of conversance with the law and court procedure. Five years is considered as a sufficient span of
time for one to acquire professional skills for the next level court, declog the dockets, put in place improved
procedures and an efficient case management system, adjust to the work environment, and gain extensive
experience in the judicial process.

A five-year stint in the Judiciary can also provide evidence of the integrity, probity, and independence of
judges seeking promotion. To merit JBC's nomination for their promotion, they must have had a "record of,
and reputation for, honesty, integrity, incorruptibility, irreproachable conduct, and fidelity to sound moral
and ethical standards." Likewise, their decisions must be reflective of the soundness of their judgment,
courage, rectitude, cold neutrality and strength of character.

Hence, for the purpose of determining whether judges are worthy of promotion to the next level court, it
would be premature or difficult to assess their merit if they have had less than one year of service on the
bench.26 (Citations omitted and emphasis in the original)
At any rate, five years of service as a lower court judge is not the only factor that determines the selection
of candidates for RTC judge to be appointed by the President. Persons with this qualification are neither
automatically selected nor do they automatically become nominees. The applicants are chosen based on an
array of factors and are evaluated based on their individual merits. Thus, it cannot be said that the
questioned policy was arbitrary, capricious, or made without any basis.

Clearly, the classification created by the challenged policy satisfies the rational basis test. The foregoing
shows that substantial distinctions do exist between lower court judges with five year experience and those
with less than five years of experience, like the petitioner, and the classification enshrined in the assailed
policy is reasonable and relevant to its legitimate purpose. The Court, thus, rules that the questioned policy
does not infringe on the equal protection clause as it is based on reasonable classification intended to gauge
the proven competence of the applicants. Therefore, the said policy is valid and constitutional.

Due Process

The petitioner averred that the assailed policy violates procedural due process for lack of publication and
non-submission to the University of the Philippines Law Center Office of the National Administrative Register
(ONAR). The petitioner said that the assailed policy will affect all applying judges, thus, the said policy
should have been published.

Contrary to the petitioner's contention, the assailed JBC policy need not be filed in the ONAR because the
publication requirement in the ONAR is confined to issuances of administrative agencies under the Executive
branch of the government.27 Since the JBC is a body under the supervision of the Supreme Court,28 it is not
covered by the publication requirements of the Administrative Code.

Nevertheless, the assailed JBC policy requiring five years of service as judges of first-level courts before
they can qualify as applicants to second-level courts should have been published. As a general rule,
publication is indispensable in order that all statutes, including administrative rules that are intended to
enforce or implement existing laws, attain binding force and effect. There are, however, several exceptions
to the requirement of publication, such as interpretative regulations and those merely internal in nature,
which regulate only the personnel of the administrative agency and not the public. Neither is publication
required of the so-called letters of instructions issued by administrative superiors concerning the rules or
guidelines to be followed by their subordinates in the performance of their duties.29

Here, the assailed JBC policy does not fall within the administrative rules and regulations exempted from the
publication requirement. The assailed policy involves a qualification standard by which the JBC shall
determine proven competence of an applicant. It is not an internal regulation, because if it were, it would
regulate and affect only the members of the JBC and their staff. Notably, the selection process involves a
call to lawyers who meet the qualifications in the Constitution and are willing to serve in the Judiciary to
apply to these vacant positions. Thus, it is but a natural consequence thereof that potential applicants be
informed of the requirements to the judicial positions, so that they would be able to prepare for and comply
with them.

The Court also noted the fact that in JBC-009, otherwise known as the Rules of the Judicial and Bar Council,
the JBC had put its criteria in writing and listed the guidelines in determining competence, independence,
integrity and probity. Section 1, Paragraph 1 of Rule 9 expressly provides that applicants for the Court of
Appeals and the Sandiganbayan, should, as a general rule, have at least five years of experience as an RTC
judge, thus: chanroblesv irt uallawl ibra ry

RULE 9 - SPECIAL GUIDELINES FOR NOMINATION TO A VACANCY IN THE COURT OF APPEALS AND
SANDIGANBAYAN

Section 1. Additional criteria for nomination to the Court of Appeals and the Sandiganbayan. - In addition
to the foregoing guidelines the Council should consider the following in evaluating the merits of applicants
for a vacancy in the Court of Appeals and Sandiganbayan:

1. As a general rule, he must have at least five years of experience as a judge of Regional Trial Court,
except when he has in his favor outstanding credentials, as evidenced by, inter alia, impressive scholastic or
educational record and performance in the Bar examinations, excellent reputation for honesty, integrity,
probity and independence of mind; at least very satisfactory performance rating for three (3) years
preceding the filing of his application for nomination; and excellent potentials for appellate judgeship.

x x x x (Emphasis ours)
The express declaration of these guidelines in JBC-009, which have been duly published on the website of
the JBC and in a newspaper of general circulation suggests that the JBC is aware that these are not mere
internal rules, but are rules implementing the Constitution that should be published. Thus, if the JBC were
so-minded to add special guidelines for determining competence of applicants for RTC judges, then it could
and should have amended its rules and published the same. This, the JBC did not do as JBC-009 and its
amendatory rule do not have special guidelines for applicants to the RTC.

Moreover, jurisprudence has held that rules implementing a statute should be published. Thus, by analogy,
publication is also required for the five-year requirement because it seeks to implement a constitutional
provision requiring proven competence from members of the judiciary.

Nonetheless, the JBC's failure to publish the assailed policy has not prejudiced the petitioner's private
interest. At the risk of being repetitive, the petitioner has no legal right to be included in the list of nominees
for judicial vacancies since the possession of the constitutional and statutory qualifications for appointment
to the Judiciary may not be used to legally demand that one's name be included in the list of candidates for
a judicial vacancy. One's inclusion in the shortlist is strictly within the discretion of the JBC.30

As to the issue that the JBC failed or refused to implement the completion of the prejudicature program as a
requirement for appointment or promotion in the judiciary under R.A. No. 8557, this ground of the petition,
being unsubstantiated, was unfounded. Clearly, it cannot be said that JBC unlawfully neglects the
performance of a duty enjoined by law.

Finally, the petitioner argued but failed to establish that the assailed policy violates the constitutional
provision under social justice and human rights for equal opportunity of employment. The OSG
explained:c hanroblesv irt uallawl ibra ry

[T]he questioned policy does not violate equality of employment opportunities. The constitutional provision
does not call for appointment to the Judiciary of all who might, for any number of reasons, wish to apply. As
with all professions, it is regulated by the State. The office of a judge is no ordinary office. It is imbued with
public interest and is central in the administration of justice x x x. Applicants who meet the constitutional
and legal qualifications must vie and withstand the competition and rigorous screening and selection
process. They must submit themselves to the selection criteria, processes and discretion of respondent JBC,
which has the constitutional mandate of screening and selecting candidates whose names will be in the list
to be submitted to the President. So long as a fair opportunity is available for all applicants who are
evaluated on the basis of their individual merits and abilities, the questioned policy cannot be struck down
as unconstitutional.31 (Citations omitted)
From the foregoing, it is apparent that the petitioner has not established a clear legal right to justify the
issuance of a preliminary injunction. The petitioner has merely filed an application with the JBC for the
position of RTC judge, and he has no clear legal right to be nominated for that office nor to be selected and
included in the list to be submitted to the President which is subject to the discretion of the JBC. The JBC
has the power to determine who shall be recommended to the judicial post. To be included in the list of
applicants is a privilege as one can only be chosen under existing criteria imposed by the JBC itself. As such,
prospective applicants, including the petitioner, cannot claim any demandable right to take part in it if they
fail to meet these criteria. Hence, in the absence of a clear legal right, the issuance of an injunctive writ is
not justified.

As the constitutional body granted with the power of searching for, screening, and selecting applicants
relative to recommending appointees to the Judiciary, the JBC has the authority to determine how best to
perform such constitutional mandate. Pursuant to this authority, the JBC issues various policies setting forth
the guidelines to be observed in the evaluation of applicants, and formulates rules and guidelines in order to
ensure that the rules are updated to respond to existing circumstances. Its discretion is freed from
legislative, executive or judicial intervention to ensure that the JBC is shielded from any outside pressure
and improper influence. Limiting qualified applicants in this case to those judges with five years of
experience was an exercise of discretion by the JBC. The potential applicants, however, should have been
informed of the requirements to the judicial positions, so that they could properly prepare for and comply
with them. Hence, unless there are good and compelling reasons to do so, the Court will refrain from
interfering with the exercise of JBC's powers, and will respect the initiative and independence inherent in the
latter.
cralaw red

WHEREFORE, premises considered, the petition is DISMISSED. The Court, however, DIRECTS that the
Judicial and Bar Council comply with the publication requirement of (1) the assailed policy requiring five
years of experience as judges of first-level courts before they can qualify as applicant to the Regional Trial
Court, and (2) other special guidelines that the Judicial and Bar Council is or will be implementing.

SO ORDERED. chanroblesvi rtua llawli bra ry

G.R. No. L-31195 June 5, 1973

PHILIPPINE BLOOMING MILLS EMPLOYMENT ORGANIZATION, NICANOR TOLENTINO,

FLORENCIO, PADRIGANO RUFINO, ROXAS MARIANO DE LEON, ASENCION PACIENTE,
BONIFACIO VACUNA, BENJAMIN PAGCU and RODULFO MUNSOD, petitioners,
vs.
PHILIPPINE BLOOMING MILLS CO., INC. and COURT OF INDUSTRIAL
RELATIONS, respondents.

L.S. Osorio & P.B. Castillo and J.C. Espinas & Associates for petitioners.

Demetrio B. Salem & Associates for private respondent.

MAKASIAR, J.:
The petitioner Philippine Blooming Mills Employees Organization (hereinafter referred to as PBMEO)
is a legitimate labor union composed of the employees of the respondent Philippine Blooming Mills
Co., Inc., and petitioners Nicanor Tolentino, Florencio Padrigano, Rufino Roxas, Mariano de Leon,
Asencion Paciente, Bonifacio Vacuna, Benjamin Pagcu and Rodulfo Munsod are officers and
members of the petitioner Union.

Petitioners claim that on March 1, 1969, they decided to stage a mass demonstration at Malacañang
on March 4, 1969, in protest against alleged abuses of the Pasig police, to be participated in by the
workers in the first shift (from 6 A.M. to 2 P.M.) as well as those in the regular second and third shifts
(from 7 A.M. to 4 P.M. and from 8 A.M. to 5 P.M., respectively); and that they informed the
respondent Company of their proposed demonstration.

The questioned order dated September 15, 1969, of Associate Judge Joaquin M. Salvador of the
respondent Court reproduced the following stipulation of facts of the parties — parties —

3. That on March 2, 1969 complainant company learned of the projected mass

demonstration at Malacañang in protest against alleged abuses of the Pasig Police
Department to be participated by the first shift (6:00 AM-2:00 PM) workers as well as
those working in the regular shifts (7:00 A.M. to 4:00 PM and 8:00 AM to 5:00 PM) in
the morning of March 4, 1969;

4. That a meeting was called by the Company on March 3, 1969 at about 11:00 A.M.
at the Company's canteen, and those present were: for the Company: (1) Mr. Arthur
L. Ang (2) Atty. S. de Leon, Jr., (3) and all department and section heads. For the
PBMEO (1) Florencio Padrigano, (2) Rufino Roxas, (3) Mariano de Leon, (4)
Asencion Paciente, (5) Bonifacio Vacuna and (6) Benjamin Pagcu.

5. That the Company asked the union panel to confirm or deny said projected mass
demonstration at Malacañang on March 4, 1969. PBMEO thru Benjamin Pagcu who
acted as spokesman of the union panel, confirmed the planned demonstration and
stated that the demonstration or rally cannot be cancelled because it has already
been agreed upon in the meeting. Pagcu explained further that the demonstration
has nothing to do with the Company because the union has no quarrel or dispute
with Management;

6. That Management, thru Atty. C.S. de Leon, Company personnel manager,

informed PBMEO that the demonstration is an inalienable right of the union
guaranteed by the Constitution but emphasized, however, that any demonstration for
that matter should not unduly prejudice the normal operation of the Company. For
which reason, the Company, thru Atty. C.S. de Leon warned the PBMEO
representatives that workers who belong to the first and regular shifts, who without
previous leave of absence approved by the Company, particularly , the officers
present who are the organizers of the demonstration, who shall fail to report for work
the following morning (March 4, 1969) shall be dismissed, because such failure is a
violation of the existing CBA and, therefore, would be amounting to an illegal strike;

7. That at about 5:00 P.M. on March 3, 1969, another meeting was convoked
Company represented by Atty. C.S. de Leon, Jr. The Union panel was composed of:
Nicanor Tolentino, Rodolfo Munsod, Benjamin Pagcu and Florencio Padrigano. In
this afternoon meeting of March 3, 1969, Company reiterated and appealed to the
PBMEO representatives that while all workers may join the Malacañang
demonstration, the workers for the first and regular shift of March 4, 1969 should be
 excused from joining the demonstration and should report for work; and thus utilize
the workers in the 2nd and 3rd shifts in order not to violate the provisions of the CBA,
particularly Article XXIV: NO LOCKOUT — NO STRIKE'. All those who will not follow
this warning of the Company shall be dismiss; De Leon reiterated the Company's
warning that the officers shall be primarily liable being the organizers of the mass
demonstration. The union panel countered that it was rather too late to change their
plans inasmuch as the Malacañang demonstration will be held the following morning;
and

8. That a certain Mr. Wilfredo Ariston, adviser of PBMEO sent a cablegram to the
Company which was received 9:50 A.M., March 4, 1969, the contents of which are
as follows: 'REITERATING REQUEST EXCUSE DAY SHIFT EMPLOYEES JOINING
DEMONSTRATION MARCH 4, 1969.' (Pars. 3-8, Annex "F", pp. 42-43, rec.)

Because the petitioners and their members numbering about 400 proceeded with the demonstration
despite the pleas of the respondent Company that the first shift workers should not be required to
participate in the demonstration and that the workers in the second and third shifts should be utilized
for the demonstration from 6 A.M. to 2 P.M. on March 4, 1969, respondent Company prior notice of
the mass demonstration on March 4, 1969, with the respondent Court, a charge against petitioners
and other employees who composed the first shift, charging them with a "violation of Section 4(a)-6
in relation to Sections 13 and 14, as well as Section 15, all of Republic Act No. 875, and of the CBA
providing for 'No Strike and No Lockout.' " (Annex "A", pp. 19-20, rec.). The charge was
accompanied by the joint affidavit of Arthur L. Ang and Cesareo de Leon, Jr. (Annex "B", pp. 21-24,
rec.). Thereafter, a corresponding complaint was filed, dated April 18, 1969, by Acting Chief
Prosecutor Antonio T. Tirona and Acting Prosecutor Linda P. Ilagan (Annex "C", pp. 25-30, rec.)

In their answer, dated May 9, 1969, herein petitioners claim that they did not violate the existing CBA
because they gave the respondent Company prior notice of the mass demonstration on March 4,
1969; that the said mass demonstration was a valid exercise of their constitutional freedom of
speech against the alleged abuses of some Pasig policemen; and that their mass demonstration
was not a declaration of strike because it was not directed against the respondent firm (Annex "D",
pp. 31-34, rec.)

After considering the aforementioned stipulation of facts submitted by the parties, Judge Joaquin M.
Salvador, in an order dated September 15, 1969, found herein petitioner PBMEO guilty of bargaining
in bad faith and herein petitioners Florencio Padrigano, Rufino Roxas, Mariano de Leon, Asencion
Paciente, Bonifacio Vacuna, Benjamin Pagcu, Nicanor Tolentino and Rodulfo Munsod as directly
responsible for perpetrating the said unfair labor practice and were, as a consequence, considered
to have lost their status as employees of the respondent Company (Annex "F", pp. 42-56, rec.)

Herein petitioners claim that they received on September 23, 1969, the aforesaid order (p. 11, rec.);
and that they filed on September 29, 1969, because September 28, 1969 fell on Sunday (p. 59,
rec.), a motion for reconsideration of said order dated September 15, 1969, on the ground that it is
contrary to law and the evidence, as well as asked for ten (10) days within which to file their
arguments pursuant to Sections 15, 16 and 17 of the Rules of the CIR, as amended (Annex "G", pp.
57-60, rec. )

In its opposition dated October 7, 1969, filed on October 11, 1969 (p. 63, rec.), respondent Company
averred that herein petitioners received on September 22, 1969, the order dated September 17
(should be September 15), 1969; that under Section 15 of the amended Rules of the Court of
Industrial Relations, herein petitioners had five (5) days from September 22, 1969 or until September
27, 1969, within which to file their motion for reconsideration; and that because their motion for
reconsideration was two (2) days late, it should be accordingly dismissed, invoking Bien vs.
Castillo,1 which held among others, that a motion for extension of the five-day period for the filing of a
motion for reconsideration should be filed before the said five-day period elapses (Annex "M", pp.
61-64, rec.).

Subsequently, herein petitioners filed on October 14, 1969 their written arguments dated October 11,
1969, in support of their motion for reconsideration (Annex "I", pp. 65-73, rec.).

In a resolution dated October 9, 1969, the respondent en banc dismissed the motion for
reconsideration of herein petitioners for being pro forma as it was filed beyond the reglementary
period prescribed by its Rules (Annex "J", pp. 74-75, rec.), which herein petitioners received on
October 28, 196 (pp. 12 & 76, rec.).

At the bottom of the notice of the order dated October 9, 1969, which was released on October 24,
1969 and addressed to the counsels of the parties (pp. 75-76, rec.), appear the requirements of
Sections 15, 16 and 17, as amended, of the Rules of the Court of Industrial Relations, that a motion
for reconsideration shall be filed within five (5) days from receipt of its decision or order and that an
appeal from the decision, resolution or order of the C.I.R., sitting en banc, shall be perfected within
ten (10) days from receipt thereof (p. 76, rec.).

On October 31, 1969, herein petitioners filed with the respondent court a petition for relief from the
order dated October 9, 1969, on the ground that their failure to file their motion for reconsideration
on time was due to excusable negligence and honest mistake committed by the president of the
petitioner Union and of the office clerk of their counsel, attaching thereto the affidavits of the said
president and clerk (Annexes "K", "K-1" and "K-2", rec.).

Without waiting for any resolution on their petition for relief from the order dated October 9, 1969,
herein petitioners filed on November 3, 1969, with the Supreme Court, a notice of appeal (Annex "L",
pp. 88-89, rec.).

There is need of briefly restating basic concepts and principles which underlie the issues posed by
the case at bar.

(1) In a democracy, the preservation and enhancement of the dignity and worth of the human
personality is the central core as well as the cardinal article of faith of our civilization. The inviolable
character of man as an individual must be "protected to the largest possible extent in his thoughts
and in his beliefs as the citadel of his person."2

(2) The Bill of Rights is designed to preserve the ideals of liberty, equality and security "against the
assaults of opportunism, the expediency of the passing hour, the erosion of small encroachments,
and the scorn and derision of those who have no patience with general principles."3

In the pithy language of Mr. Justice Robert Jackson, the purpose of the Bill of Rights is to withdraw
"certain subjects from the vicissitudes of political controversy, to place them beyond the reach of
majorities and officials, and to establish them as legal principles to be applied by the courts. One's
rights to life, liberty and property, to free speech, or free press, freedom of worship and assembly,
and other fundamental rights may not be submitted to a vote; they depend on the outcome of no
elections."4 Laski proclaimed that "the happiness of the individual, not the well-being of the State,
was the criterion by which its behaviour was to be judged. His interests, not its power, set the limits
to the authority it was entitled to exercise."5
(3) The freedoms of expression and of assembly as well as the right to petition are included among
the immunities reserved by the sovereign people, in the rhetorical aphorism of Justice Holmes, to
protect the ideas that we abhor or hate more than the ideas we cherish; or as Socrates insinuated,
not only to protect the minority who want to talk, but also to benefit the majority who refuse to
listen.6 And as Justice Douglas cogently stresses it, the liberties of one are the liberties of all; and the
liberties of one are not safe unless the liberties of all are protected.7

(4) The rights of free expression, free assembly and petition, are not only civil rights but also political
rights essential to man's enjoyment of his life, to his happiness and to his full and complete
fulfillment. Thru these freedoms the citizens can participate not merely in the periodic establishment
of the government through their suffrage but also in the administration of public affairs as well as in
the discipline of abusive public officers. The citizen is accorded these rights so that he can appeal to
the appropriate governmental officers or agencies for redress and protection as well as for the
imposition of the lawful sanctions on erring public officers and employees.

(5) While the Bill of Rights also protects property rights, the primacy of human rights over property
rights is recognized.8 Because these freedoms are "delicate and vulnerable, as well as supremely
precious in our society" and the "threat of sanctions may deter their exercise almost as potently as
the actual application of sanctions," they "need breathing space to survive," permitting government
regulation only "with narrow specificity."9

Property and property rights can be lost thru prescription; but human rights are imprescriptible. If
human rights are extinguished by the passage of time, then the Bill of Rights is a useless attempt to
limit the power of government and ceases to be an efficacious shield against the tyranny of officials,
of majorities, of the influential and powerful, and of oligarchs — political, economic or otherwise.

In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a preferred
position as they are essential to the preservation and vitality of our civil and political
institutions; 10 and such priority "gives these liberties the sanctity and the sanction not permitting
dubious intrusions." 11

The superiority of these freedoms over property rights is underscored by the fact that a mere
reasonable or rational relation between the means employed by the law and its object or purpose —
that the law is neither arbitrary nor discriminatory nor oppressive — would suffice to validate a law
which restricts or impairs property rights. 12 On the other hand, a constitutional or valid infringement
of human rights requires a more stringent criterion, namely existence of a grave and immediate
danger of a substantive evil which the State has the right to prevent. So it has been stressed in the
main opinion of Mr. Justice Fernando in Gonzales vs. Comelec and reiterated by the writer of the
opinion in Imbong vs. Ferrer. 13 It should be added that Mr. Justice Barredo in Gonzales vs.
Comelec, supra, like Justices Douglas, Black and Goldberg in N.Y. Times Co. vs.
Sullivan, 14 believes that the freedoms of speech and of the press as well as of peaceful assembly
and of petition for redress of grievances are absolute when directed against public officials or "when
exercised in relation to our right to choose the men and women by whom we shall be
governed," 15 even as Mr. Justice Castro relies on the balancing-of-interests test. 16 Chief Justice
Vinson is partial to the improbable danger rule formulated by Chief Judge Learned Hand, viz. —
whether the gravity of the evil, discounted by its improbability, justifies such invasion of free
expression as is necessary to avoid the danger. 17

II

The respondent Court of Industrial Relations, after opining that the mass demonstration was not a
declaration of strike, concluded that by their "concerted act and the occurrence temporary stoppage
of work," herein petitioners are guilty bargaining in bad faith and hence violated the collective
bargaining agreement with private respondent Philippine Blooming Mills Co., inc.. Set against and
tested by foregoing principles governing a democratic society, such conclusion cannot be sustained.
The demonstration held petitioners on March 4, 1969 before Malacañang was against alleged
abuses of some Pasig policemen, not against their employer, herein private respondent firm, said
demonstrate was purely and completely an exercise of their freedom expression in general and of
their right of assembly and petition for redress of grievances in particular before appropriate
governmental agency, the Chief Executive, again the police officers of the municipality of Pasig.
They exercise their civil and political rights for their mutual aid protection from what they believe
were police excesses. As matter of fact, it was the duty of herein private respondent firm to protect
herein petitioner Union and its members fro the harassment of local police officers. It was to the
interest herein private respondent firm to rally to the defense of, and take up the cudgels for, its
employees, so that they can report to work free from harassment, vexation or peril and as
consequence perform more efficiently their respective tasks enhance its productivity as well as
profits. Herein respondent employer did not even offer to intercede for its employees with the local
police. Was it securing peace for itself at the expenses of its workers? Was it also intimidated by the
local police or did it encourage the local police to terrorize or vex its workers? Its failure to defend its
own employees all the more weakened the position of its laborers the alleged oppressive police who
might have been all the more emboldened thereby subject its lowly employees to further indignities.

In seeking sanctuary behind their freedom of expression well as their right of assembly and of
petition against alleged persecution of local officialdom, the employees and laborers of herein private
respondent firm were fighting for their very survival, utilizing only the weapons afforded them by the
Constitution — the untrammelled enjoyment of their basic human rights. The pretension of their
employer that it would suffer loss or damage by reason of the absence of its employees from 6
o'clock in the morning to 2 o'clock in the afternoon, is a plea for the preservation merely of their
property rights. Such apprehended loss or damage would not spell the difference between the life
and death of the firm or its owners or its management. The employees' pathetic situation was a stark
reality — abused, harassment and persecuted as they believed they were by the peace officers of
the municipality. As above intimated, the condition in which the employees found themselves vis-a-
vis the local police of Pasig, was a matter that vitally affected their right to individual existence as
well as that of their families. Material loss can be repaired or adequately compensated. The
debasement of the human being broken in morale and brutalized in spirit-can never be fully
evaluated in monetary terms. The wounds fester and the scars remain to humiliate him to his dying
day, even as he cries in anguish for retribution, denial of which is like rubbing salt on bruised tissues.

As heretofore stated, the primacy of human rights — freedom of expression, of peaceful assembly
and of petition for redress of grievances — over property rights has been sustained. 18 Emphatic
reiteration of this basic tenet as a coveted boon — at once the shield and armor of the dignity and
worth of the human personality, the all-consuming ideal of our enlightened civilization — becomes
Our duty, if freedom and social justice have any meaning at all for him who toils so that capital can
produce economic goods that can generate happiness for all. To regard the demonstration against
police officers, not against the employer, as evidence of bad faith in collective bargaining and hence
a violation of the collective bargaining agreement and a cause for the dismissal from employment of
the demonstrating employees, stretches unduly the compass of the collective bargaining agreement,
is "a potent means of inhibiting speech" and therefore inflicts a moral as well as mortal wound on the
constitutional guarantees of free expression, of peaceful assembly and of petition. 19

The collective bargaining agreement which fixes the working shifts of the employees, according to
the respondent Court Industrial Relations, in effect imposes on the workers the "duty ... to observe
regular working hours." The strain construction of the Court of Industrial Relations that a stipulated
working shifts deny the workers the right to stage mass demonstration against police abuses during
working hours, constitutes a virtual tyranny over the mind and life the workers and deserves severe
condemnation. Renunciation of the freedom should not be predicated on such a slender ground.

The mass demonstration staged by the employees on March 4, 1969 could not have been legally
enjoined by any court, such an injunction would be trenching upon the freedom expression of the
workers, even if it legally appears to be illegal picketing or strike. 20 The respondent Court of
Industrial Relations in the case at bar concedes that the mass demonstration was not a declaration
of a strike "as the same not rooted in any industrial dispute although there is concerted act and the
occurrence of a temporary stoppage work." (Annex "F", p. 45, rec.).

The respondent firm claims that there was no need for all its employees to participate in the
demonstration and that they suggested to the Union that only the first and regular shift from 6 A.M.
to 2 P.M. should report for work in order that loss or damage to the firm will be averted. This stand
failed appreciate the sine qua non of an effective demonstration especially by a labor union, namely
the complete unity of the Union members as well as their total presence at the demonstration site in
order to generate the maximum sympathy for the validity of their cause but also immediately action
on the part of the corresponding government agencies with jurisdiction over the issues they raised
against the local police. Circulation is one of the aspects of freedom of expression. 21 If
demonstrators are reduced by one-third, then by that much the circulation of the issues raised by the
demonstration is diminished. The more the participants, the more persons can be apprised of the
purpose of the rally. Moreover, the absence of one-third of their members will be regarded as a
substantial indication of disunity in their ranks which will enervate their position and abet continued
alleged police persecution. At any rate, the Union notified the company two days in advance of their
projected demonstration and the company could have made arrangements to counteract or prevent
whatever losses it might sustain by reason of the absence of its workers for one day, especially in
this case when the Union requested it to excuse only the day-shift employees who will join the
demonstration on March 4, 1969 which request the Union reiterated in their telegram received by the
company at 9:50 in the morning of March 4, 1969, the day of the mass demonstration (pp. 42-43,
rec.). There was a lack of human understanding or compassion on the part of the firm in rejecting the
request of the Union for excuse from work for the day shifts in order to carry out its mass
demonstration. And to regard as a ground for dismissal the mass demonstration held against the
Pasig police, not against the company, is gross vindictiveness on the part of the employer, which is
as unchristian as it is unconstitutional.

III

The respondent company is the one guilty of unfair labor practice. Because the refusal on the part of
the respondent firm to permit all its employees and workers to join the mass demonstration against
alleged police abuses and the subsequent separation of the eight (8) petitioners from the service
constituted an unconstitutional restraint on the freedom of expression, freedom of assembly and
freedom petition for redress of grievances, the respondent firm committed an unfair labor practice
defined in Section 4(a-1) in relation to Section 3 of Republic Act No. 875, otherwise known as the
Industrial Peace Act. Section 3 of Republic Act No. 8 guarantees to the employees the right "to
engage in concert activities for ... mutual aid or protection"; while Section 4(a-1) regards as an unfair
labor practice for an employer interfere with, restrain or coerce employees in the exercise their rights
guaranteed in Section Three."

We repeat that the obvious purpose of the mass demonstration staged by the workers of the
respondent firm on March 4, 1969, was for their mutual aid and protection against alleged police
abuses, denial of which was interference with or restraint on the right of the employees to engage in
such common action to better shield themselves against such alleged police indignities. The
insistence on the part of the respondent firm that the workers for the morning and regular shift
should not participate in the mass demonstration, under pain of dismissal, was as heretofore stated,
"a potent means of inhibiting speech." 22

Such a concerted action for their mutual help and protection deserves at least equal protection as
the concerted action of employees in giving publicity to a letter complaint charging bank president
with immorality, nepotism, favoritism an discrimination in the appointment and promotion of ban
employees. 23 We further ruled in the Republic Savings Bank case, supra, that for the employees to
come within the protective mantle of Section 3 in relation to Section 4(a-1) on Republic Act No. 875,
"it is not necessary that union activity be involved or that collective bargaining be contemplated," as
long as the concerted activity is for the furtherance of their interests. 24

As stated clearly in the stipulation of facts embodied in the questioned order of respondent Court
dated September 15, 1969, the company, "while expressly acknowledging, that the demonstration is
an inalienable right of the Union guaranteed by the Constitution," nonetheless emphasized that "any
demonstration for that matter should not unduly prejudice the normal operation of the company" and
"warned the PBMEO representatives that workers who belong to the first and regular shifts, who
without previous leave of absence approved by the Company, particularly the officers present who
are the organizers of the demonstration, who shall fail to report for work the following morning
(March 4, 1969) shall be dismissed, because such failure is a violation of the existing CBA and,
therefore, would be amounting to an illegal strike (;)" (p. III, petitioner's brief). Such threat of
dismissal tended to coerce the employees from joining the mass demonstration. However, the
issues that the employees raised against the local police, were more important to them because they
had the courage to proceed with the demonstration, despite such threat of dismissal. The most that
could happen to them was to lose a day's wage by reason of their absence from work on the day of
the demonstration. One day's pay means much to a laborer, more especially if he has a family to
support. Yet, they were willing to forego their one-day salary hoping that their demonstration would
bring about the desired relief from police abuses. But management was adamant in refusing to
recognize the superior legitimacy of their right of free speech, free assembly and the right to petition
for redress.

Because the respondent company ostensibly did not find it necessary to demand from the workers
proof of the truth of the alleged abuses inflicted on them by the local police, it thereby concedes that
the evidence of such abuses should properly be submitted to the corresponding authorities having
jurisdiction over their complaint and to whom such complaint may be referred by the President of the
Philippines for proper investigation and action with a view to disciplining the local police officers
involved.

On the other hand, while the respondent Court of Industrial Relations found that the demonstration
"paralyzed to a large extent the operations of the complainant company," the respondent Court of
Industrial Relations did not make any finding as to the fact of loss actually sustained by the firm. This
significant circumstance can only mean that the firm did not sustain any loss or damage. It did not
present evidence as to whether it lost expected profits for failure to comply with purchase orders on
that day; or that penalties were exacted from it by customers whose orders could not be filled that
day of the demonstration; or that purchase orders were cancelled by the customers by reason of its
failure to deliver the materials ordered; or that its own equipment or materials or products were
damaged due to absence of its workers on March 4, 1969. On the contrary, the company saved a
sizable amount in the form of wages for its hundreds of workers, cost of fuel, water and electric
consumption that day. Such savings could have amply compensated for unrealized profits or
damages it might have sustained by reason of the absence of its workers for only one day.

IV
Apart from violating the constitutional guarantees of free speech and assembly as well as the right to
petition for redress of grievances of the employees, the dismissal of the eight (8) leaders of the
workers for proceeding with the demonstration and consequently being absent from work,
constitutes a denial of social justice likewise assured by the fundamental law to these lowly
employees. Section 5 of Article II of the Constitution imposes upon the State "the promotion of social
justice to insure the well-being and economic security of all of the people," which guarantee is
emphasized by the other directive in Section 6 of Article XIV of the Constitution that "the State shall
afford protection to labor ...". Respondent Court of Industrial Relations as an agency of the State is
under obligation at all times to give meaning and substance to these constitutional guarantees in
favor of the working man; for otherwise these constitutional safeguards would be merely a lot of
"meaningless constitutional patter." Under the Industrial Peace Act, the Court of Industrial Relations
is enjoined to effect the policy of the law "to eliminate the causes of industrial unrest by encouraging
and protecting the exercise by employees of their right to self-organization for the purpose of
collective bargaining and for the promotion of their moral, social and economic well-being." It is most
unfortunate in the case at bar that respondent Court of Industrial Relations, the very governmental
agency designed therefor, failed to implement this policy and failed to keep faith with its avowed
mission — its raison d'etre — as ordained and directed by the Constitution.

It has been likewise established that a violation of a constitutional right divests the court of
jurisdiction; and as a consequence its judgment is null and void and confers no rights. Relief from a
criminal conviction secured at the sacrifice of constitutional liberties, may be obtained through
habeas corpus proceedings even long after the finality of the judgment. Thus, habeas corpus is the
remedy to obtain the release of an individual, who is convicted by final judgment through a forced
confession, which violated his constitutional right against self-incrimination; 25 or who is denied the
right to present evidence in his defense as a deprivation of his liberty without due process of
law, 26 even after the accused has already served sentence for twenty-two years. 27

Both the respondents Court of Industrial Relations and private firm trenched upon these
constitutional immunities of petitioners. Both failed to accord preference to such rights and
aggravated the inhumanity to which the aggrieved workers claimed they had been subjected by the
municipal police. Having violated these basic human rights of the laborers, the Court of Industrial
Relations ousted itself of jurisdiction and the questioned orders it issued in the instant case are a
nullity. Recognition and protection of such freedoms are imperative on all public offices including the
courts 28 as well as private citizens and corporations, the exercise and enjoyment of which must not
be nullified by mere procedural rule promulgated by the Court Industrial Relations exercising a
purely delegate legislative power, when even a law enacted by Congress must yield to the
untrammelled enjoyment of these human rights. There is no time limit to the exercise of the
freedoms. The right to enjoy them is not exhausted by the delivery of one speech, the printing of one
article or the staging of one demonstration. It is a continuing immunity to be invoked and exercised
when exigent and expedient whenever there are errors to be rectified, abuses to be denounced,
inhumanities to be condemned. Otherwise these guarantees in the Bill of Rights would be vitiated by
rule on procedure prescribing the period for appeal. The battle then would be reduced to a race for
time. And in such a contest between an employer and its laborer, the latter eventually loses because
he cannot employ the best an dedicated counsel who can defend his interest with the required
diligence and zeal, bereft as he is of the financial resources with which to pay for competent legal
services. 28-a

VI
The Court of Industrial Relations rule prescribes that motion for reconsideration of its order or writ
should filed within five (5) days from notice thereof and that the arguments in support of said motion
shall be filed within ten (10) days from the date of filing of such motion for reconsideration (Sec. 16).
As above intimated, these rules of procedure were promulgated by the Court of Industrial Relations
pursuant to a legislative delegation. 29

The motion for reconsideration was filed on September 29, 1969, or seven (7) days from notice on
September 22, 1969 of the order dated September 15, 1969 or two (2) days late. Petitioners claim
that they could have filed it on September 28, 1969, but it was a Sunday.

Does the mere fact that the motion for reconsideration was filed two (2) days late defeat the rights of
the petitioning employees? Or more directly and concretely, does the inadvertent omission to comply
with a mere Court of Industrial Relations procedural rule governing the period for filing a motion for
reconsideration or appeal in labor cases, promulgated pursuant to a legislative delegation, prevail
over constitutional rights? The answer should be obvious in the light of the aforecited cases. To
accord supremacy to the foregoing rules of the Court of Industrial Relations over basic human rights
sheltered by the Constitution, is not only incompatible with the basic tenet of constitutional
government that the Constitution is superior to any statute or subordinate rules and regulations, but
also does violence to natural reason and logic. The dominance and superiority of the constitutional
right over the aforesaid Court of Industrial Relations procedural rule of necessity should be affirmed.
Such a Court of Industrial Relations rule as applied in this case does not implement or reinforce or
strengthen the constitutional rights affected,' but instead constrict the same to the point of nullifying
the enjoyment thereof by the petitioning employees. Said Court of Industrial Relations rule,
promulgated as it was pursuant to a mere legislative delegation, is unreasonable and therefore is
beyond the authority granted by the Constitution and the law. A period of five (5) days within which
to file a motion for reconsideration is too short, especially for the aggrieved workers, who usually do
not have the ready funds to meet the necessary expenses therefor. In case of the Court of Appeals
and the Supreme Court, a period of fifteen (15) days has been fixed for the filing of the motion for re
hearing or reconsideration (See. 10, Rule 51; Sec. 1, Rule 52; Sec. 1, Rule 56, Revised Rules of
Court). The delay in the filing of the motion for reconsideration could have been only one day if
September 28, 1969 was not a Sunday. This fact accentuates the unreasonableness of the Court of
Industrial are concerned.

It should be stressed here that the motion for reconsideration dated September 27, 1969, is based
on the ground that the order sought to be reconsidered "is not in accordance with law, evidence and
facts adduced during the hearing," and likewise prays for an extension of ten (10) days within which
to file arguments pursuant to Sections 15, 16 and 17 of the Rules of the Court of Industrial Relations
(Annex "G", pp. 57-60, rec.); although the arguments were actually filed by the herein petitioners on
October 14, 1969 (Annex "I", pp. 70-73, rec.), long after the 10-day period required for the filing of
such supporting arguments counted from the filing of the motion for reconsideration. Herein
petitioners received only on October 28, 1969 the resolution dated October 9, 1969 dismissing the
motion for reconsideration for being pro forma since it was filed beyond the reglementary period
(Annex "J", pp. 74-75, rec.)

It is true that We ruled in several cases that where a motion to reconsider is filed out of time, or
where the arguments in suppf such motion are filed beyond the 10 day reglementary period provided
for by the Court of Industrial Relations rules, the order or decision subject of29-a reconsideration
becomes final and unappealable. But in all these cases, the constitutional rights of free expression,
free assembly and petition were not involved.

It is a procedural rule that generally all causes of action and defenses presently available must be
specifically raised in the complaint or answer; so that any cause of action or defense not raised in
such pleadings, is deemed waived. However, a constitutional issue can be raised any time, even for
the first time on appeal, if it appears that the determination of the constitutional issue is necessary to
a decision of the case, the very lis mota of the case without the resolution of which no final and
complete determination of the dispute can be made. 30 It is thus seen that a procedural rule of
Congress or of the Supreme Court gives way to a constitutional right. In the instant case, the
procedural rule of the Court of Industrial Relations, a creature of Congress, must likewise yield to the
constitutional rights invoked by herein petitioners even before the institution of the unfair labor
practice charged against them and in their defense to the said charge.

In the case at bar, enforcement of the basic human freedoms sheltered no less by the organic law, is
a most compelling reason to deny application of a Court of Industrial Relations rule which impinges
on such human rights. 30-a

It is an accepted principle that the Supreme Court has the inherent power to "suspend its own rules
or to except a particular case from its operation, whenever the purposes of justice require." 30-b Mr.
Justice Barredo in his concurring opinion in Estrada vs. Sto. Domingo. 30-c reiterated this principle
and added that

Under this authority, this Court is enabled to cove with all situations without
concerning itself about procedural niceties that do not square with the need to do
justice, in any case, without further loss of time, provided that the right of the parties
to a full day in court is not substantially impaired. Thus, this Court may treat an
appeal as a certiorari and vice-versa. In other words, when all the material facts are
spread in the records before Us, and all the parties have been duly heard, it matters
little that the error of the court a quo is of judgment or of jurisdiction. We can then
and there render the appropriate judgment. Is within the contemplation of this
doctrine that as it is perfectly legal and within the power of this Court to strike down in
an appeal acts without or in excess of jurisdiction or committed with grave abuse of
discretion, it cannot be beyond the admit of its authority, in appropriate cases, to
reverse in a certain proceed in any error of judgment of a court a quo which cannot
be exactly categorized as a flaw of jurisdiction. If there can be any doubt, which I do
not entertain, on whether or not the errors this Court has found in the decision of the
Court of Appeals are short of being jurisdiction nullities or excesses, this Court would
still be on firm legal grounds should it choose to reverse said decision here and
now even if such errors can be considered as mere mistakes of judgment or only as
faults in the exercise of jurisdiction, so as to avoid the unnecessary return of this
case to the lower court for the sole purpose of pursuing the ordinary course of an
appeal. (Emphasis supplied). 30-d

Insistence on the application of the questioned Court industrial Relations rule in this particular case
at bar would an unreasoning adherence to "Procedural niceties" which denies justice to the herein
laborers, whose basic human freedoms, including the right to survive, must be according supremacy
over the property rights of their employer firm which has been given a full hearing on this case,
especially when, as in the case at bar, no actual material damage has be demonstrated as having
been inflicted on its property rights.

If We can disregard our own rules when justice requires it, obedience to the Constitution renders
more imperative the suspension of a Court of Industrial Relations rule that clash with the human
rights sanctioned and shielded with resolution concern by the specific guarantees outlined in the
organic law. It should be stressed that the application in the instant case Section 15 of the Court of
Industrial Relations rules relied upon by herein respondent firm is unreasonable and therefore such
application becomes unconstitutional as it subverts the human rights of petitioning labor union and
workers in the light of the peculiar facts and circumstances revealed by the record.

The suspension of the application of Section 15 of the Court of Industrial Relations rules with
reference to the case at is also authorized by Section 20 of Commonwealth Act No. 103, the C.I.R.
charter, which enjoins the Court of Industrial Relations to "act according to justice and equity and
substantial merits of the case, without regard to technicalities or legal forms ..."

On several occasions, We emphasized this doctrine which was re-stated by Mr. Justice Barredo,
speaking for the Court, in the 1970 case of Kapisanan, etc. vs. Hamilton, etc., et. al., 30-e thus:

As to the point that the evidence being offered by the petitioners in the motion for
new trial is not "newly discovered," as such term is understood in the rules of
procedure for the ordinary courts, We hold that such criterion is not binding upon the
Court of Industrial Relations. Under Section 20 of Commonwealth Act No. 103, 'The
Court of Industrial Relations shall adopt its, rules or procedure and shall have such
other powers as generally pertain to a court of justice: Provided, however, That in the
hearing, investigation and determination of any question or controversy and in
exercising any duties and power under this Act, the Court shall act according to
justice and equity and substantial merits of the case, without regard to technicalities
or legal forms and shall not be bound by any technical rules of legal evidence but
may inform its mind in such manner as it may deem just and equitable.' By this
provision the industrial court is disengaged from the rigidity of the technicalities
applicable to ordinary courts. Said court is not even restricted to the specific relief
demanded by the parties but may issue such orders as may be deemed necessary
or expedient for the purpose of settling the dispute or dispelling any doubts that may
give rise to future disputes. (Ang Tibay v. C.I.R., G.R. No. 46496, Feb. 17, 1940;
Manila Trading & Supply Co. v. Phil. Labor, 71 Phil. 124.) For these reasons, We
believe that this provision is ample enough to have enabled the respondent court to
consider whether or not its previous ruling that petitioners constitute a minority was
founded on fact, without regard to the technical meaning of newly discovered
evidence. ... (Alonso v. Villamor, 16 Phil. 315; Chua Kiong v. Whitaker, 46 Phil. 578).
(emphasis supplied.)

To apply Section 15 of the Court of Industrial Relations rules with "pedantic rigor" in the instant case
is to rule in effect that the poor workers, who can ill-afford an alert competent lawyer, can no longer
seek the sanctuary of human freedoms secured to them by the fundamental law, simply because
their counsel — erroneously believing that he received a copy of the decision on September 23,
1969, instead of September 22, 1969 - filed his motion for reconsideration September 29, 1969,
which practically is only one day late considering that September 28, 1969 was a Sunday.

Many a time, this Court deviated from procedure technicalities when they ceased to be instruments
of justice, for the attainment of which such rules have been devised. Summarizing the jurisprudence
on this score, Mr. Justice Fernando, speaking for a unanimous Court in Palma vs. Oreta, 30-f Stated:

As was so aptly expressed by Justice Moreland in Alonso v. Villamor (16 Phil. 315
[1910]. The Villamor decision was cited with approval in Register of Deeds v. Phil.
Nat. Bank, 84 Phil. 600 [1949]; Potenciano v. Court of Appeals, 104 Phil. 156 [1958]
and Uy v. Uy, 14243, June 30, 1961, 2 SCRA 675.), decided as far back as 1910,
"technicality. when it deserts its proper-office as an aid to justice and becomes its
great hindrance and chief enemy, deserves scant consideration from courts." (Ibid.,
p, 322.) To that norm, this Court has remained committed. The late Justice Recto in
 Blanco v. Bernabe, (63 Phil. 124 [1936]) was of a similar mind. For him the
interpretation of procedural rule should never "sacrifice the ends justice." While
"procedural laws are no other than technicalities" view them in their entirety, 'they
were adopted not as ends themselves for the compliance with which courts have
organized and function, but as means conducive to the realization the administration
of the law and of justice (Ibid., p.,128). We have remained steadfastly opposed, in
the highly rhetorical language Justice Felix, to "a sacrifice of substantial rights of a
litigant in altar of sophisticated technicalities with impairment of the sacred principles
of justice." (Potenciano v. Court of Appeals, 104 Phil. 156, 161 [1958]). As succinctly
put by Justice Makalintal, they "should give way to the realities of the situation."
(Urbayan v. Caltex, L-15379, Aug. 31, 1962, 5 SCRA 1016, 1019). In the latest
decision in point promulgated in 1968, (Udan v. Amon, (1968, 23 SCRA citing
McEntee v. Manotok, L-14968, Oct. 27, 1961, 3 SCRA 272.) Justice Zaldivar was
partial to an earlier formulation of Justice Labrador that rules of procedure "are not to
be applied in a very rigid, technical sense"; but are intended "to help secure
substantial justice." (Ibid., p. 843) ... 30-g

Even if the questioned Court of Industrial Relations orders and rule were to be given effect, the
dismissal or termination of the employment of the petitioning eight (8) leaders of the Union is harsh
for a one-day absence from work. The respondent Court itself recognized the severity of such a
sanction when it did not include the dismissal of the other 393 employees who are members of the
same Union and who participated in the demonstration against the Pasig police. As a matter of fact,
upon the intercession of the Secretary of Labor, the Union members who are not officers, were not
dismissed and only the Union itself and its thirteen (13) officers were specifically named as
respondents in the unfair labor practice charge filed against them by the firm (pp. 16-20,
respondent's Brief; Annexes "A", "B" and "C", pp. 20-30, rec.). Counsel for respondent firm
insinuates that not all the 400 or so employee participated in the demonstration, for which reason
only the Union and its thirteen (13) officers were specifically named in the unfair labor practice
charge (p. 20, respondent's brief). If that were so, then many, if not all, of the morning and regular
shifts reported for work on March 4, 1969 and that, as a consequence, the firm continued in
operation that day and did not sustain any damage.

The appropriate penalty — if it deserves any penalty at all — should have been simply to charge
said one-day absence against their vacation or sick leave. But to dismiss the eight (8) leaders of the
petitioner Union is a most cruel penalty, since as aforestated the Union leaders depend on their
wages for their daily sustenance as well as that of their respective families aside from the fact that it
is a lethal blow to unionism, while at the same time strengthening the oppressive hand of the petty
tyrants in the localities.

Mr. Justice Douglas articulated this pointed reminder:

The challenge to our liberties comes frequently not from those who consciously seek
to destroy our system of Government, but from men of goodwill — good men who
allow their proper concerns to blind them to the fact that what they propose to
accomplish involves an impairment of liberty.

... The Motives of these men are often commendable. What we must remember,
however, is that preservation of liberties does not depend on motives. A suppression
of liberty has the same effect whether the suppress or be a reformer or an outlaw.
The only protection against misguided zeal is a constant alertness of the infractions
of the guarantees of liberty contained in our Constitution. Each surrender of liberty to
 the demands of the moment makes easier another, larger surrender. The battle over
the Bill of Rights is a never ending one.

... The liberties of any person are the liberties of all of us.

... In short, the Liberties of none are safe unless the liberties of all are protected.

... But even if we should sense no danger to our own liberties, even if we feel secure
because we belong to a group that is important and respected, we must recognize
that our Bill of Rights is a code of fair play for the less fortunate that we in all honor
and good conscience must be observe. 31

The case at bar is worse.

Management has shown not only lack of good-will or good intention, but a complete lack of
sympathetic understanding of the plight of its laborers who claim that they are being subjected to
indignities by the local police, It was more expedient for the firm to conserve its income or profits
than to assist its employees in their fight for their freedoms and security against alleged petty
tyrannies of local police officers. This is sheer opportunism. Such opportunism and expediency
resorted to by the respondent company assaulted the immunities and welfare of its employees. It
was pure and implement selfishness, if not greed.

Of happy relevance is the 1967 case of Republic Savings Bank vs. C.I.R., 32 where the petitioner
Bank dismissed eight (8) employees for having written and published "a patently libelous letter ... to
the Bank president demanding his resignation on the grounds of immorality, nepotism in the
appointment and favoritism as well as discrimination in the promotion of bank employees." Therein,
thru Mr. Justice Castro, We ruled:

It will avail the Bank none to gloat over this admission of the respondents. Assuming
that the latter acted in their individual capacities when they wrote the letter-charge
they were nonetheless protected for they were engaged in concerted activity, in the
exercise of their right of self organization that includes concerted activity for mutual
aid and protection, (Section 3 of the Industrial Peace Act ...) This is the view of some
members of this Court. For, as has been aptly stated, the joining in protests or
demands, even by a small group of employees, if in furtherance of their interests as
such, is a concerted activity protected by the Industrial Peace Act. It is not necessary
that union activity be involved or that collective bargaining be contemplated. (Annot.,
6 A.L.R. 2d 416 [1949]).

xxx xxx xxx

Instead of stifling criticism, the Bank should have allowed the respondents to air their
grievances.

xxx xxx xxx

The Bank defends its action by invoking its right to discipline for what it calls the
respondents' libel in giving undue publicity to their letter-charge. To be sure, the right
of self-organization of employees is not unlimited (Republic Aviation Corp. vs. NLRB
324 U.S. 793 [1945]), as the right of the employer to discharge for cause (Philippine
Education Co. v. Union of Phil. Educ. Employees, L-13773, April 29, 1960) is
 undenied. The Industrial Peace Act does not touch the normal exercise of the right of
the employer to select his employees or to discharge them. It is directed solely
against the abuse of that right by interfering with the countervailing right of self
organization (Phelps Dodge Corp. v. NLRB 313 U.S. 177 [1941])...

xxx xxx xxx

In the final sum and substance, this Court is in unanimity that the Bank's conduct,
identified as an interference with the employees' right of self-organization or as a
retaliatory action, and/or as a refusal to bargain collectively, constituted an unfair
labor practice within the meaning and intendment of section 4(a) of the Industrial
Peace Act. (Emphasis supplied.) 33

If free expression was accorded recognition and protection to fortify labor unionism in the Republic
Savings case, supra, where the complaint assailed the morality and integrity of the bank president
no less, such recognition and protection for free speech, free assembly and right to petition are
rendered all the more justifiable and more imperative in the case at bar, where the mass
demonstration was not against the company nor any of its officers.

WHEREFORE, judgement is hereby rendered:

(1) setting aside as null and void the orders of the respondent Court of Industrial Relations dated
September 15 and October 9, 1969; and

(2) directing the re instatement of the herein eight (8) petitioners, with full back pay from the date of
their separation from the service until re instated, minus one day's pay and whatever earnings they
might have realized from other sources during their separation from the service.

With costs against private respondent Philippine Blooming Company, Inc.

G.R. No. 157036 June 9, 2004

FRANCISCO I. CHAVEZ Petitioner,

vs.
HON. ALBERTO G. ROMULO, IN HIS CAPACITY AS EXECUTIVE SECRETARY; DIRECTOR
GENERAL HERMOGENES E. EBDANE, JR., IN HIS CAPACITY AS THE CHIEF OF THE PNP,
ET. AL., respondents.

DECISION

SANDOVAL-GUTIERREZ, J.:

The right of individuals to bear arms is not absolute, but is subject to regulation. The maintenance of
peace and order1 and the protection of the people against violence are constitutional duties of the
State, and the right to bear arms is to be construed in connection and in harmony with these
constitutional duties.
Before us is a petition for prohibition and injunction seeking to enjoin the implementation of the
"Guidelines in the Implementation of the Ban on the Carrying of Firearms Outside of
Residence"2 (Guidelines) issued on January 31, 2003, by respondent Hermogenes E. Ebdane, Jr.,
Chief of the Philippine National Police (PNP).

The facts are undisputed:

In January 2003, President Gloria Macapagal-Arroyo delivered a speech before the

members of the PNP stressing the need for a nationwide gun ban in all public places to avert
the rising crime incidents. She directed the then PNP Chief, respondent Ebdane, to suspend
the issuance of Permits to Carry Firearms Outside of Residence (PTCFOR), thus:

"THERE IS ALSO NEED TO FOCUS ON THE HIGH PROFILE CRIMES THAT

TEND TO DISTURB THE PSYCHOLOGICAL PERIMETERS OF THE COMMUNITY
– THE LATEST BEING THE KILLING OF FORMER NPA LEADER ROLLY
KINTANAR. I UNDERSTAND WE ALREADY HAVE THE IDENTITY OF THE
CULPRIT. LET US BRING THEM TO THE BAR OF JUSTICE.

THE NPA WILL FIND IT MORE DIFFICULT TO CARRY OUT THEIR PLOTS IF
OUR LAW ENFORCEMENT AGENCIES CAN RID THEMSELVES OF RASCALS IN
UNIFORM, AND ALSO IF WE ENFORCE A GUN BAN IN PUBLIC PLACES.

THUS, I AM DIRECTING THE PNP CHIEF TO SUSPEND INDEFINITELY THE

ISSUANCE OF PERMIT TO CARRY FIREARMS IN PUBLIC PLACES. THE
ISSUANCE OF PERMITS WILL NOW BE LIMITED ONLY TO OWNERSHIP AND
POSSESSION OF GUNS AND NOT TO CARRYING THEM IN PUBLIC PLACES.
FROM NOW ON, ONLY THE UNIFORMED MEN IN THE MILITARY AND
AUTHORIZED LAW ENFORCEMENT OFFICERS CAN CARRY FIREARMS IN
PUBLIC PLACES, AND ONLY PURSUANT TO EXISTING LAW. CIVILIAN
OWNERS MAY NO LONGER BRING THEIR FIREARMS OUTSIDE THEIR
RESIDENCES. THOSE WHO WANT TO USE THEIR GUNS FOR TARGET
PRACTICE WILL BE GIVEN SPECIAL AND TEMPORARY PERMITS FROM TIME
TO TIME ONLY FOR THAT PURPOSE. AND THEY MAY NOT LOAD THEIR GUNS
WITH BULLETS UNTIL THEY ARE IN THE PREMISES OF THE FIRING RANGE.

WE CANNOT DISREGARD THE PARAMOUNT NEED FOR LAW AND ORDER.

JUST AS WE CANNOT BE HEEDLESS OF OUR PEOPLE’S ASPIRATIONS FOR
PEACE."

Acting on President Arroyo’s directive, respondent Ebdane issued the assailed Guidelines quoted as
follows:

"TO : All Concerned

FROM : Chief, PNP

SUBJECT : Guidelines in the Implementation of the Ban on the Carrying of Firearms

Outside of Residence.

DATE : January 31, 2003

1. Reference: PD 1866 dated June 29, 1983 and its Implementing Rules and Regulations.

2. General:

The possession and carrying of firearms outside of residence is a privilege granted by the
State to its citizens for their individual protection against all threats of lawlessness and
security.

As a rule, persons who are lawful holders of firearms (regular license, special permit,
certificate of registration or MR) are prohibited from carrying their firearms outside of
residence. However, the Chief, Philippine National Police may, in meritorious cases as
determined by him and under conditions as he may impose, authorize such person or
persons to carry firearms outside of residence.

3. Purposes:

This Memorandum prescribes the guidelines in the implementation of the ban on the carrying
of firearms outside of residence as provided for in the Implementing Rules and
Regulations, Presidential Decree No. 1866, dated June 29, 1983 and as directed by
PGMA. It also prescribes the conditions, requirements and procedures under which
exemption from the ban may be granted.

4. Specific Instructions on the Ban on the Carrying of Firearms:

a. All PTCFOR are hereby revoked. Authorized holders of licensed firearms covered
with valid PTCFOR may re-apply for a new PTCFOR in accordance with the
conditions hereinafter prescribed.

b. All holders of licensed or government firearms are hereby prohibited from carrying
their firearms outside their residence except those covered with mission/letter orders
and duty detail orders issued by competent authority pursuant to Section 5, IRR, PD
1866, provided, that the said exception shall pertain only to organic and regular
employees.

5. The following persons may be authorized to carry firearms outside of residence.

a. All persons whose application for a new PTCFOR has been approved, provided,
that the persons and security of those so authorized are under actual threat, or by
the nature of their position, occupation and profession are under imminent danger.

b. All organic and regular employees with Mission/Letter Orders granted by their
respective agencies so authorized pursuant to Section 5, IRR, PD 1866, provided,
that such Mission/Letter Orders is valid only for the duration of the official mission
which in no case shall be more than ten (10) days.

c. All guards covered with Duty Detail Orders granted by their respective security
agencies so authorized pursuant to Section 4, IRR, PD 1866, provided, that such
DDO shall in no case exceed 24-hour duration. d. Members of duly recognized Gun
Clubs issued Permit to Transport (PTT) by the PNP for purposes of practice and
competition, provided, that such firearms while in transit must not be loaded with
ammunition and secured in an appropriate box or case detached from the person. e.
 Authorized members of the Diplomatic Corps. 6. Requirements for issuance of new
PTCFOR: a. Written request by the applicant addressed to Chief, PNP stating his
qualification to possess firearm and the reasons why he needs to carry firearm
outside of residence. b. Xerox copy of current firearm license duly authenticated by
Records Branch, FED; c. Proof of actual threat, the details of which should be issued
by the Chief of Police/Provincial or City Directors and duly validated by C, RIID; d.
Copy of Drug Test Clearance, duly authenticated by the Drug Testing Center, if
photocopied; e. Copy of DI/ RIID clearance, duly authenticated by ODI/RIID, if
photocopied; f. Copy of Neuro-Psychiatric Clearance duly authenticated by NP
Testing Center, if photocopied; g. Copy of Certificate of Attendance to a Gun Safety
Seminar, duly validated by Chief, Operations Branch, FED; h. NBI Clearance; i. Two
(2) ID pictures (2" x 2") taken not earlier than one (1) year from date of filing of
application; and j. Proof of Payment

7. Procedures: a. Applications may be filed directly to the Office of the PTCFOR Secretariat
in Camp Crame. In the provinces, the applications may also be submitted to the Police
Regional Offices (PROs) and Provincial/City Police Offices (P/CPOs) for initial processing
before they are forwarded to the office of the PTCFOR Secretariat. The processors, after
ascertaining that the documentary requirements are in order, shall issue the Order of
Payment (OP) indicating the amount of fees payable by the applicant, who in turn shall pay
the fees to the Land Bank. b. Applications, which are duly processed and prepared in
accordance with existing rules and regulations, shall be forwarded to the OCPNP for
approval. c. Upon approval of the application, OCPNP will issue PTCFOR valid for one (1)
year from date of issue. d. Applications for renewal of PTCFOR shall be processed in
accordance with the provisions of par. 6 above. e. Application for possession and carrying of
firearms by diplomats in the Philippines shall be processed in accordance with NHQ PNP
Memo dated September 25, 2000, with Subj: Possession and Carrying of Firearms by
Diplomats in the Philippines. 8. Restrictions in the Carrying of Firearms: a. The firearm must
not be displayed or exposed to public view, except those authorized in uniform and in the
performance of their official duties. b. The firearm shall not be brought inside public drinking
and amusement places, and all other commercial or public establishments."

Petitioner Francisco I. Chavez, a licensed gun owner to whom a PTCFOR has been issued,
requested the Department of Interior and Local Government (DILG) to reconsider the
implementation of the assailed Guidelines. However, his request was denied. Thus, he filed the
present petition impleading public respondents Ebdane, as Chief of PNP; Alberto G. Romulo, as
Executive Secretary; and Gerry L. Barias, as Chief of the PNP-Firearms and Explosives Division. He
anchored his petition on the following grounds:

"I

THE PRESIDENT HAS NO POWER OR AUTHORITY – MUCH LESS BY A MERE SPEECH

– TO ALTER, MODIFY OR AMEND THE LAW ON FIREARMS BY IMPOSING A GUN BAN
AND CANCELING EXISTING PERMITS FOR GUNS TO BE CARRIED OUTSIDE
RESIDENCES.

II

OFFICIALLY, THERE IS NO PRESIDENTIAL ISSUANCE ON THE GUN BAN; THE

PRESIDENTIAL SPEECH NEVER INVOKED POLICE POWER TO JUSTIFY THE GUN
BAN; THE PRESIDENT’S VERBAL DECLARATION ON GUN BAN VIOLATED THE
PEOPLE’S RIGHT TO PROTECT LIFE AND THEIR PROPERTY RIGHT TO CARRY
FIREARMS.

III

THE PNP CHIEF HAS NO POWER OR AUTHORITY TO ISSUE THE QUESTIONED

GUIDELINES BECAUSE:

1) THERE IS NO LAW, STATUTE OR EXECUTIVE ORDER WHICH GRANTS THE

PNP CHIEF THE AUTHORITY TO PROMULGATE THE PNP GUIDELINES.

2) THE IMPLEMENTING RULES AND REGULATIONS OF PD 1866 CANNOT BE

THE SUBJECT OF ANOTHER SET OF IMPLEMENTING GUIDELINES.

3) THE PRESIDENT’S SPEECH CANNOT BE A BASIS FOR THE

PROMULGATION OF IMPLEMENTNG GUIDELINES ON THE GUN BAN.

IV

ASSUMING ARGUENDO, THAT THE PNP GUIDELINES IMPLEMENT PD 1866, AND THE
AMENDMENTS THERETO, THE PNP CHIEF STILL HAS NO POWER OR AUTHORITY TO
ISSUE THE SAME BECAUSE –

1) PER SEC 6, RA 8294, WHICH AMENDS PD 1866, THE IRR SHALL BE

PROMULGATED JOINTLY BY THE DOJ AND THE DILG.

2) SEC. 8, PD 1866 STATES THAT THE IRR SHALL BE PROMULGATED BY THE

CHIEF OF THE PHILIPPINE CONSTABULARY.

THE PNP GUIDELINES VIOLATE THE DUE PROCESS CLAUSE OF THE CONSTITUTION
BECAUSE:

1) THE RIGHT TO OWN AND CARRY A FIREARM IS NECESSARILY

INTERTWINED WITH THE PEOPLE’S INHERENT RIGHT TO LIFE AND TO
PROTECT LIFE. THUS, THE PNP GUIDELINES DEPRIVE PETITIONER OF THIS
RIGHT WITHOUT DUE PROCESS OF LAW FOR:

A) THE PNP GUIDELINES DEPRIVE PETITIONER OF HIS MOST

POTENT, IF NOT HIS ONLY, MEANS TO DEFEND HIMSELF.

B) THE QUESTIONED GUIDELINES STRIPPED PETITIONER OF HIS

MEANS OF PROTECTION AGAINST CRIME DESPITE THE FACT THAT
THE STATE COULD NOT POSSIBLY PROTECT ITS CITIZENS DUE TO
THE INADEQUACY AND INEFFICIENCY OF THE POLICE FORCE.

2) THE OWNESHIP AND CARRYING OF FIREARMS ARE CONSTITUTIONALLY

PROTECTED PROPERTY RIGHTS WHICH CANNOT BE TAKEN AWAY WITHOUT
DUE PROCESS OF LAW AND WITHOUT JUST CAUSE.
 VI

ASSUMING ARGUENDO, THAT THE PNP GUIDELINES WERE ISSUED IN THE

EXERCISE OF POLICE POWER, THE SAME IS AN INVALID EXERCISE
THEREOF SINCE THE MEANS USED THEREFOR ARE UNREASONABLE AND
UNNCESSARY FOR THE ACCOMPLISHMENT OF ITS PURPOSE – TO DETER
AND PREVENT CRIME –THEREBY BECOMING UNDULY OPPRESSIVE TO LAW-
ABIDING GUN-OWNERS.

VII

THE PNP GUIDELINES ARE UNJUST, OPPRESSIVE AND CONFISCATORY SINCE IT

REVOKED ALL EXISTING PERMITS TO CARRY WITHOUT, HOWEVER, REFUNDING
THE PAYMENT THE PNP RECEIVED FROM THOSE WHO ALREADY PAID THEREFOR.

VIII

THE PNP GUIDELINES VIOLATE THE EQUAL PROTECTION CLAUSE OF THE

CONSTITUTION BECAUSE THEY ARE DIRECTED AT AND OPPRESSIVE ONLY TO
LAW-ABIDING GUN OWNERS WHILE LEAVING OTHER GUN-OWNERS – THE
LAWBREAKERS (KIDNAPPERS, ROBBERS, HOLD-UPPERS, MNLF, MILF, ABU SAYYAF
COLLECTIVELY, AND NPA) – UNTOUCHED.

IX

THE PNP GUIDELINES ARE UNJUST, OPPRESSIVE AND UNFAIR BECAUSE THEY
WERE IMPLEMENTED LONG BEFORE THEY WERE PUBLISHED.

THE PNP GUIDELINES ARE EFFECTIVELY AN EX POST FACTO LAW SINCE THEY
APPLY RETROACTIVELY AND PUNISH ALL THOSE WHO WERE ALREADY GRANTED
PERMITS TO CARRY OUTSIDE OF RESIDENCE LONG BEFORE THEIR
PROMULGATION."

Petitioner’s submissions may be synthesized into five (5) major issues:

First, whether respondent Ebdane is authorized to issue the assailed Guidelines;

Second, whether the citizens’ right to bear arms is a constitutional right?;

Third, whether the revocation of petitioner’s PTCFOR pursuant to the assailed Guidelines is
a violation of his right to property?;

Fourth, whether the issuance of the assailed Guidelines is a valid exercise of police power?;
and

Fifth, whether the assailed Guidelines constitute an ex post facto law?

The Solicitor General seeks the dismissal of the petition pursuant to the doctrine of hierarchy of
courts. Nonetheless, in refutation of petitioner’s arguments, he contends that: (1) the PNP Chief is
authorized to issue the assailed Guidelines; (2) petitioner does not have a constitutional right to own
and carry firearms; (3) the assailed Guidelines do not violate the due process clause of the
Constitution; and (4) the assailed Guidelines do not constitute an ex post facto law.

Initially, we must resolve the procedural barrier.

On the alleged breach of the doctrine of hierarchy of courts, suffice it to say that the doctrine is not
an iron-clad dictum. In several instances where this Court was confronted with cases of national
interest and of serious implications, it never hesitated to set aside the rule and proceed with the
judicial determination of the cases.3 The case at bar is of similar import as it involves the citizens’
right to bear arms.

Authority of the PNP Chief

Relying on the principle of separation of powers, petitioner argues that only Congress can withhold
his right to bear arms. In revoking all existing PTCFOR, President Arroyo and respondent Ebdane
transgressed the settled principle and arrogated upon themselves a power they do not possess – the
legislative power.

We are not persuaded.

It is true that under our constitutional system, the powers of government are distributed among three
coordinate and substantially independent departments: the legislative, the executive and the
judiciary. Each has exclusive cognizance of the matters within its jurisdiction and is supreme within
its own sphere.4

Pertinently, the power to make laws – the legislative power – is vested in Congress.5 Congress may
not escape its duties and responsibilities by delegating that power to any other body or authority.
Any attempt to abdicate the power is unconstitutional and void, on the principle that "delegata
potestas non potest delegari" – "delegated power may not be delegated."6

The rule which forbids the delegation of legislative power, however, is not absolute and
inflexible. It admits of exceptions. An exception sanctioned by immemorial practice permits the
legislative body to delegate its licensing power to certain persons, municipal corporations, towns,
boards, councils, commissions, commissioners, auditors, bureaus and directors.7 Such licensing
power includes the power to promulgate necessary rules and regulations.8

The evolution of our laws on firearms shows that since the early days of our Republic, the
legislature’s tendency was always towards the delegation of power. Act No. 1780,9 delegated upon
the Governor-General (now the President) the authority (1) to approve or disapprove applications of
any person for a license to deal in firearms or to possess the same for personal protection, hunting
and other lawful purposes; and (2) to revoke such license any time.10 Further, it authorized him to
issue regulations which he may deem necessary for the proper enforcement of the Act.11 With the
enactment of Act No. 2711, the "Revised Administrative Code of 1917," the laws on firearms were
integrated.12 The Act retained the authority of the Governor General provided in Act No. 1780.
Subsequently, the growing complexity in the Office of the Governor-General resulted in the
delegation of his authority to the Chief of the Constabulary. On January 21, 1919, Acting Governor-
General Charles E. Yeater issued Executive Order No. 813 authorizing and directing the Chief of
Constabulary to act on his behalf in approving and disapproving applications for personal, special
and hunting licenses. This was followed by Executive Order No. 6114 designating the Philippine
Constabulary (PC) as the government custodian of all firearms, ammunitions and explosives.
Executive Order No. 215,15 issued by President Diosdado Macapagal on December 3, 1965, granted
the Chief of the Constabulary, not only the authority to approve or disapprove applications for
personal, special and hunting license, but also the authority to revoke the same. With the foregoing
developments, it is accurate to say that the Chief of the Constabulary had exercised the authority for
a long time. In fact, subsequent issuances such as Sections 2 and 3 of the Implementing Rules and
Regulations of Presidential Decree No. 186616 perpetuate such authority of the Chief of the
Constabulary. Section 2 specifically provides that any person or entity desiring to possess any
firearm "shall first secure the necessary permit/license/authority from the Chief of the Constabulary."
With regard to the issuance of PTCFOR, Section 3 imparts: "The Chief of Constabulary may, in
meritorious cases as determined by him and under such conditions as he may impose, authorize
lawful holders of firearms to carry them outside of residence." These provisions are issued pursuant
to the general power granted by P.D. No. 1866 empowering him to promulgate rules and regulations
for the effective implementation of the decree.17 At this juncture, it bears emphasis that P.D. No.
1866 is the chief law governing possession of firearms in the Philippines and that it was issued by
President Ferdinand E. Marcos in the exercise of his legislative power.18 In an attempt to evade the
application of the above-mentioned laws and regulations, petitioner argues that the "Chief of the
PNP" is not the same as the "Chief of the Constabulary," the PC being a mere unit or component of
the newly established PNP. He contends further that Republic Act No. 829419 amended P.D. No.
1866 such that the authority to issue rules and regulations regarding firearms is now jointly vested in
the Department of Justice and the DILG, not the Chief of the Constabulary.20

Petitioner’s submission is bereft of merit.

By virtue of Republic Act No. 6975,21 the Philippine National Police (PNP) absorbed the Philippine
Constabulary (PC). Consequently, the PNP Chief succeeded the Chief of the Constabulary and,
therefore, assumed the latter’s licensing authority. Section 24 thereof specifies, as one of PNP’s
powers, the issuance of licenses for the possession of firearms and explosives in accordance with
law.22 This is in conjunction with the PNP Chief’s "power to issue detailed implementing policies and
instructions" on such "matters as may be necessary to effectively carry out the functions, powers and
duties" of the PNP.23

Contrary to petitioner’s contention, R.A. No. 8294 does not divest the Chief of the Constabulary (now
the PNP Chief) of his authority to promulgate rules and regulations for the effective implementation
of P.D. No. 1866. For one, R.A. No. 8294 did not repeal entirely P.D. No. 1866. It merely provides for
the reduction of penalties for illegal possession of firearms. Thus, the provision of P.D. No. 1866
granting to the Chief of the Constabulary the authority to issue rules and regulations regarding
firearms remains effective. Correspondingly, the Implementing Rules and Regulations dated
September 15, 1997 jointly issued by the Department of Justice and the DILG pursuant to Section 6
of R.A. No. 8294 deal only with the automatic review, by the Director of the Bureau of Corrections or
the Warden of a provincial or city jail, of the records of convicts for violations of P.D. No. 1866. The
Rules seek to give effect to the beneficent provisions of R.A. No. 8294, thereby ensuring the early
release and reintegration of the convicts into the community.

Clearly, both P.D. No. 1866 and R.A. No. 6975 authorize the PNP Chief to issue the assailed
guidelines.

Corollarily, petitioner disputes President Arroyo’s declaration of a nationwide gun ban, arguing that
"she has no authority to alter, modify, or amend the law on firearms through a mere speech."
First, it must be emphasized that President Arroyo’s speech was just an expression of her policy and
a directive to her subordinate. It cannot, therefore, be argued that President Arroyo enacted a law
through a mere speech.

Second, at the apex of the entire executive officialdom is the President. Section 17, Article VII of the
Constitution specifies his power as Chief Executive, thus: "The President shall have control of all the
executive departments, bureaus and offices. He shall ensure that the laws be faithfully executed." As
Chief Executive, President Arroyo holds the steering wheel that controls the course of her
government. She lays down policies in the execution of her plans and programs. Whatever policy
she chooses, she has her subordinates to implement them. In short, she has the power of
control. Whenever a specific function is entrusted by law or regulation to her subordinate, she
may act directly or merely direct the performance of a duty.24 Thus, when President Arroyo
directed respondent Ebdane to suspend the issuance of PTCFOR, she was just directing a
subordinate to perform an assigned duty. Such act is well within the prerogative of her office.

II

Right to bear arms: Constitutional or Statutory?

Petitioner earnestly contends that his right to bear arms is a constitutionally-protected right. This, he
mainly anchors on various American authorities. We therefore find it imperative to determine the
nature of the right in light of American jurisprudence.

The bearing of arms is a tradition deeply rooted in the English and American society. It antedates not
only the American Constitution but also the discovery of firearms.25

A provision commonly invoked by the American people to justify their possession of firearms is the
Second Amendment of the Constitution of the United States of America, which reads:

"A well regulated militia, being necessary for the security of free state, the right of the people to keep
and bear Arms, shall not be infringed."

An examination of the historical background of the foregoing provision shows that it pertains to the
citizens’ "collective right" to take arms in defense of the State, not to the citizens’ "individual right" to
own and possess arms. The setting under which the right was contemplated has a profound
connection with the keeping and maintenance of a militia or an armed citizenry. That this is how the
right was construed is evident in early American cases.

The first case involving the interpretation of the Second Amendment that reached the United States
Supreme Court is United States vs. Miller.26 Here, the indictment charged the defendants with
transporting an unregistered "Stevens shotgun" without the required stamped written order, contrary
to the National Firearms Act. The defendants filed a demurrer challenging the facial validity of the
indictment on the ground that the National Firearms Act offends the inhibition of the Second
Amendment. The District Court sustained the demurrer and quashed the indictment. On appeal, the
Supreme Court interpreted the right to bear arms under the Second Amendment as referring to the
collective right of those comprising the Militia – a body of citizens enrolled for military discipline. It
does not pertain to the individual right of citizen to bear arm. Miller expresses its holding as follows:

"In the absence of any evidence tending to show that possession or use of a ‘shotgun having
a barrel of less than eighteen inches in length’ at this time has some reasonable
relationship to the preservation or efficiency of a well regulated militia, we cannot say
that the Second Amendment guarantees the right to keep and bear such an
 instrument. Certainly it is not within judicial notice that this weapon is any part of the
ordinary military equipment or that its use could contribute to the common defense.

The same doctrine was re-echoed in Cases vs. United States.27 Here, the Circuit Court of Appeals
held that the Federal Firearms Act, as applied to appellant, does not conflict with the Second
Amendment. It ruled that:

"While [appellant’s] weapon may be capable of military use, or while at least familiarity with it
might be regarded as of value in training a person to use a comparable weapon of military
type and caliber, still there is no evidence that the appellant was or ever had been a
member of any military organization or that his use of the weapon under the
circumstances disclosed was in preparation for a military career. In fact, the only
inference possible is that the appellant at the time charged in the indictment was in
possession of, transporting, and using the firearm and ammunition purely and simply
on a frolic of his own and without any thought or intention of contributing to the
efficiency of the well regulated militia which the Second amendment was designed to
foster as necessary to the security of a free state."

With the foregoing jurisprudence, it is erroneous to assume that the US Constitution grants upon the
American people the right to bear arms. In a more explicit language, the United States vs.
Cruikshank28 decreed: "The right of the people to keep and bear arms is not a right granted by
the Constitution. Neither is it in any way dependent upon that instrument." Likewise, in People
vs. Persce,29 the Court of Appeals said: "Neither is there any constitutional provision securing the
right to bear arms which prohibits legislation with reference to such weapons as are specifically
before us for consideration. The provision in the Constitution of the United States that the right
of the people to keep and bear arms shall not be infringed is not designed to control
legislation by the state."

With more reason, the right to bear arms cannot be classified as fundamental under the 1987
Philippine Constitution. Our Constitution contains no provision similar to the Second Amendment, as
we aptly observed in the early case of United States vs. Villareal:30

"The only contention of counsel which would appear to necessitate comment is the claim that
the statute penalizing the carrying of concealed weapons and prohibiting the keeping and the
use of firearms without a license, is in violation of the provisions of section 5 of the Philippine
Bill of Rights.

Counsel does not expressly rely upon the prohibition in the United States Constitution
against the infringement of the right of the people of the United States to keep and
bear arms (U. S. Constitution, amendment 2), which is not included in the Philippine
Bill. But it may be well, in passing, to point out that in no event could this
constitutional guaranty have any bearing on the case at bar, not only because it has
not been expressly extended to the Philippine Islands, but also because it has been
uniformly held that both this and similar provisions in State constitutions apply only
to arms used in civilized warfare (see cases cited in 40 Cyc., 853, note 18); x x x."

Evidently, possession of firearms by the citizens in the Philippines is the exception, not the rule. The
right to bear arms is a mere statutory privilege, not a constitutional right. It is a mere statutory
creation. What then are the laws that grant such right to the Filipinos? The first real firearm law
is Act No. 1780 enacted by the Philippine Commission on October 12, 1907. It was passed to
regulate the importation, acquisition, possession, use and transfer of firearms. Section 9 thereof
provides:
 "SECTION 9. Any person desiring to possess one or more firearms for personal
protection, or for use in hunting or other lawful purposes only, and ammunition
therefor, shall make application for a license to possess such firearm or firearms or
ammunition as hereinafter provided. Upon making such application, and before receiving
the license, the applicant shall make a cash deposit in the postal savings bank in the sum of
one hundred pesos for each firearm for which the license is to be issued, or in lieu thereof he
may give a bond in such form as the Governor-General may prescribe, payable to the
Government of the Philippine Islands, in the sum of two hundred pesos for each such
firearm: PROVIDED, HOWEVER, That persons who are actually members of gun clubs, duly
formed and organized at the time of the passage of this Act, who at such time have a license
to possess firearms, shall not be required to make the deposit or give the bond prescribed by
this section, and the bond duly executed by such person in accordance with existing law
shall continue to be security for the safekeeping of such arms."

The foregoing provision was restated in Section 88731 of Act No. 2711 that integrated the firearm
laws. Thereafter, President Ferdinand E. Marcos issued P.D. No. 1866. It codified the laws on illegal
possession, manufacture, dealing in, acquisition of firearms, ammunitions or explosives and
imposed stiffer penalties for their violation. R.A. No. 8294 amended some of the provisions of P.D.
No. 1866 by reducing the imposable penalties. Being a mere statutory creation, the right to bear
arms cannot be considered an inalienable or absolute right.

III

Vested Property Right

Section 1, Article III of the Constitution provides that "no person shall be deprived of life, liberty or
property without due process of law." Petitioner invokes this provision, asserting that the revocation
of his PTCFOR pursuant to the assailed Guidelines deprived him of his "vested property right"
without due process of law and in violation of the equal protection of law.

Petitioner cannot find solace to the above-quoted Constitutional provision.

In evaluating a due process claim, the first and foremost consideration must be whether life, liberty
or property interest exists.32 The bulk of jurisprudence is that a license authorizing a person to enjoy
a certain privilege is neither a property nor property right. In Tan vs. The Director of Forestry,33 we
ruled that "a license is merely a permit or privilege to do what otherwise would be unlawful, and is
not a contract between the authority granting it and the person to whom it is granted; neither is it
property or a property right, nor does it create a vested right." In a more emphatic pronouncement,
we held in Oposa vs. Factoran, Jr.34 that:

"Needless to say, all licenses may thus be revoked or rescinded by executive action. It
is not a contract, property or a property right protected by the due process clause of
the Constitution."

Petitioner, in arguing that his PTCFOR is a constitutionally protected property right, relied heavily on
Bell vs. Burson35 wherein the U.S. Supreme Court ruled that "once a license is issued, continued
possession may become essential in the pursuit of livelihood. Suspension of issued licenses thus
involves state action that adjudicates important interest of the licensees."

Petitioner’s reliance on Bell is misplaced. This case involves a driver’s license, not a license to bear
arms. The catena of American jurisprudence involving license to bear arms is perfectly in accord
with our ruling that a PTCFOR is neither a property nor a property right. In Erdelyi vs. O’Brien,36 the
plaintiff who was denied a license to carry a firearm brought suit against the defendant who was the
Chief of Police of the City of Manhattan Beach, on the ground that the denial violated her
constitutional rights to due process and equal protection of the laws. The United States Court of
Appeals Ninth Circuit ruled that Erdelyi did not have a property interest in obtaining a license to carry
a firearm, ratiocinating as follows:

"Property interests protected by the Due Process Clause of the Fourteenth Amendment do not arise
whenever a person has only ‘an abstract need or desire for’, or ‘unilateral expectation of a benefit. x
x x Rather, they arise from ‘legitimate claims of entitlement… defined by existing rules or
understanding that stem from an independent source, such as state law. x x x Concealed weapons
are closely regulated by the State of California. x x x Whether the statute creates a property interest
in concealed weapons licenses depends ‘largely upon the extent to which the statute contains
mandatory language that restricts the discretion of the [issuing authority] to deny licenses to
applicants who claim to meet the minimum eligibility requirements. x x x Where state law gives the
issuing authority broad discretion to grant or deny license application in a closely regulated field,
initial applicants do not have a property right in such licenses protected by the Fourteenth
Amendment. See Jacobson, supra, 627 F.2d at 180 (gaming license under Nevada law);"

Similar doctrine was announced in Potts vs. City of Philadelphia,37 Conway vs. King,38 Nichols vs.
County of Sta. Clara,39 and Gross vs. Norton.40 These cases enunciated that the test whether the
statute creates a property right or interest depends largely on the extent of discretion granted to the
issuing authority.

In our jurisdiction, the PNP Chief is granted broad discretion in the issuance of PTCFOR. This is
evident from the tenor of the Implementing Rules and Regulations of P.D. No. 1866 which state that
"the Chief of Constabulary may, in meritorious cases as determined by him and under such
conditions as he may impose, authorize lawful holders of firearms to carry them outside of
residence." Following the American doctrine, it is indeed logical to say that a PTCFOR does not
constitute a property right protected under our Constitution.

Consequently, a PTCFOR, just like ordinary licenses in other regulated fields, may be revoked any
time. It does not confer an absolute right, but only a personal privilege to be exercised under existing
restrictions, and such as may thereafter be reasonably imposed.41 A licensee takes his license
subject to such conditions as the Legislature sees fit to impose, and one of the statutory conditions
of this license is that it might be revoked by the selectmen at their pleasure. Such a license is
not a contract, and a revocation of it does not deprive the defendant of any property, immunity, or
privilege within the meaning of these words in the Declaration of Rights.42 The US Supreme Court,
in Doyle vs. Continental Ins. Co,43 held: "The correlative power to revoke or recall a permission is a
necessary consequence of the main power. A mere license by the State is always revocable."

The foregoing jurisprudence has been resonating in the Philippines as early as 1908. Thus, in The
Government of the Philippine Islands vs. Amechazurra44 we ruled:

"x x x no private person is bound to keep arms. Whether he does or not is entirely optional
with himself, but if, for his own convenience or pleasure, he desires to possess arms, he
must do so upon such terms as the Government sees fit to impose, for the right to keep and
bear arms is not secured to him by law. The Government can impose upon him such terms
as it pleases. If he is not satisfied with the terms imposed, he should decline to accept them,
but, if for the purpose of securing possession of the arms he does agree to such conditions,
he must fulfill them."

IV
 Police Power

At any rate, assuming that petitioner’s PTCFOR constitutes a property right protected by the
Constitution, the same cannot be considered as absolute as to be placed beyond the reach of the
State’s police power. All property in the state is held subject to its general regulations, necessary to
the common good and general welfare.

In a number of cases, we laid down the test to determine the validity of a police measure, thus:

(1) The interests of the public generally, as distinguished from those of a particular class,
require the exercise of the police power; and

(2) The means employed are reasonably necessary for the accomplishment of the purpose
and not unduly oppressive upon individuals.

Deeper reflection will reveal that the test merely reiterates the essence of the constitutional
guarantees of substantive due process, equal protection, and non-impairment of property rights.

It is apparent from the assailed Guidelines that the basis for its issuance was the need for peace and
order in the society. Owing to the proliferation of crimes, particularly those committed by the New
People’s Army (NPA), which tends to disturb the peace of the community, President Arroyo deemed
it best to impose a nationwide gun ban. Undeniably, the motivating factor in the issuance of the
assailed Guidelines is the interest of the public in general.

The only question that can then arise is whether the means employed are appropriate and
reasonably necessary for the accomplishment of the purpose and are not unduly oppressive. In the
instant case, the assailed Guidelines do not entirely prohibit possession of firearms. What they
proscribe is merely the carrying of firearms outside of residence. However, those who wish to carry
their firearms outside of their residences may re-apply for a new PTCFOR. This we believe is a
reasonable regulation. If the carrying of firearms is regulated, necessarily, crime incidents will be
curtailed. Criminals carry their weapon to hunt for their victims; they do not wait in the comfort of
their homes. With the revocation of all PTCFOR, it would be difficult for criminals to roam around
with their guns. On the other hand, it would be easier for the PNP to apprehend them.

Notably, laws regulating the acquisition or possession of guns have frequently been upheld as
reasonable exercise of the police power.45 In State vs. Reams,46 it was held that the legislature may
regulate the right to bear arms in a manner conducive to the public peace. With the promotion of
public peace as its objective and the revocation of all PTCFOR as the means, we are convinced that
the issuance of the assailed Guidelines constitutes a reasonable exercise of police power. The ruling
in United States vs. Villareal,47 is relevant, thus:

"We think there can be no question as to the reasonableness of a statutory regulation

prohibiting the carrying of concealed weapons as a police measure well calculated to restrict
the too frequent resort to such weapons in moments of anger and excitement. We do not
doubt that the strict enforcement of such a regulation would tend to increase the security of
life and limb, and to suppress crime and lawlessness, in any community wherein the practice
of carrying concealed weapons prevails, and this without being unduly oppressive upon the
individual owners of these weapons. It follows that its enactment by the legislature is a
proper and legitimate exercise of the police power of the state."

V
 Ex post facto law

In Mekin vs. Wolfe,48 an ex post facto law has been defined as one – (a) which makes an action
done before the passing of the law and which was innocent when done criminal, and punishes such
action; or (b) which aggravates a crime or makes it greater than it was when committed; or (c) which
changes the punishment and inflicts a greater punishment than the law annexed to the crime when it
was committed; or (d) which alters the legal rules of evidence and receives less or different
testimony than the law required at the time of the commission of the offense in order to convict the
defendant.

We see no reason to devote much discussion on the matter. Ex post facto law prohibits
retrospectivity of penal laws.49 The assailed Guidelines cannot be considered as an ex post facto
law because it is prospective in its application. Contrary to petitioner’s argument, it would not result
in the punishment of acts previously committed.

WHEREFORE, the petition is hereby DISMISSED.

SO ORDERED.

EN BANC
[ G.R. No. 238467, February 12, 2019 ]
MARK ANTHONY V. ZABAL, THITING ESTOSO JACOSALEM,
AND ODON S. BANDIOLA, PETITIONERS, V. RODRIGO R.
DUTERTE, PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES; SALVADOR C. MEDIALDEA, EXECUTIVE
SECRETARY; AND EDUARDO M. AÑO, [SECRETARY] OF THE
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT,
RESPONDENTS.

DECISION

DEL CASTILLO, J.:

Paradise is a place of bliss, felicity, and delight.[1] For Filipinos and foreign nationals
alike, Boracay - a small island in Malay, Aklan, with its palm-fringed, pristine white
sand beaches, azure waters, coral reefs, rare seashells,[2] and a lot more to
offer,[3] - is indeed a piece of paradise. Unsurprisingly, Boracay is one of the
country's prime tourist destinations. However, this island-paradise has been
disrespected, abused, degraded, over-used, and taken advantage of by both locals
and tourists. Hence, the government gave Boracay its much-needed respite and
rehabilitation. However, the process by which the rehabilitation was to be
implemented did not sit well with petitioners, hence, the present petition.
The Case

Before this Court is a Petition for Prohibition and Mandamus with Application for
Temporary Restraining Order, Preliminary Injunction, and/or Status Quo Ante Order
filed by petitioners Mark Anthony V. Zabal (Zabal), Thiting Estoso Jacosalem
(Jacosalem), and Odon S. Bandiola (Bandiola) against respondents President
Rodrigo R. Duterte (President Duterte), Executive Secretary Salvador C. Medialdea,
and Secretary Eduardo M. Año of the Department of Interior and Local Government
(DILG).

The Parties

Zabal and Jacosalem are both residents of Boracay who, at the time of the filing of
the petition, were earning a living from the tourist activities therein. Zabal claims to
build sandcastles for tourists while Jacosalem drives for tourists and workers in the
island. While not a resident, Bandiola, for his part, claims to occasionally visit
Boracay for business and pleasure. The three base their locus standi on direct injury
and also from the transcendental importance doctrine.[4] Respondents, on the other
hand, are being sued in their capacity as officials of the government.

The Facts

Claiming that Boracay has become a cesspool, President Duterte first made public
his plan to shut it down during a business forum held in Davao sometime February
2018.[5] This was followed by several speeches and news releases stating that he
would place Boracay under a state of calamity. True to his words, President Duterte
ordered the shutting down of the island in a cabinet meeting held on April 4, 2018.
This was confirmed by then Presidential Spokesperson Harry L. Roque, Jr. in a
press briefing the following day wherein he formally announced that the total
closure of Boracay would be for a maximum period of six months starting April 26,
2018.[6]

Following this pronouncement, petitioners contend that around 630 police and
military personnel were readily deployed to Boracay including personnel for crowd
dispersal management.[7] They also allege that the DILG had already released
guidelines for the closure.[8]

Petitioners claim that ever since the news of Boracay's closure came about, fewer
tourists had been engaging the services of Zabal and Jacosalem such that their
earnings were barely enough to feed their families. They fear that if the closure
pushes through, they would suffer grave and irreparable damage. Hence, despite
the fact that the government was then yet to release a formal issuance on the
matter,[9] petitioners filed the petition on April 25, 2018 praying that:

(a) Upon the filing of [the] petition, a TEMPORARY RESTRAINING ORDER (TRO) and/or
a WRIT OF PRELIMINARY PROHIBITORY INJUNCTION be immediately issued
RESTRAINING and/or ENJOINING the respondents, and all persons acting under their
 command, order, and responsibility from enforcing a closure of Boracay Island or from
banning the petitioners, tourists, and non-residents therefrom, and a WRIT OF
PRELIMINARY MANDATORY INJUNCTION directing the respondents, and all persons
acting under their command, order, and responsibility to ALLOW all of the said persons to
enter and/or leave Boracay Island unimpeded;

(b) In the alternative, if the respondents enforce the closure after the instant petition is filed,
that a STATUS QUO ANTE Order be issued restoring and maintaining the condition prior
to such closure;

(c) After proper proceedings, a judgment be rendered PERMANENTLY RESTRAINING

and/or ENJOINING the respondents, and all persons acting under their command, order,
and responsibility from enforcing a closure of Boracay Island or from banning the
petitioners, tourists, and non-residents therefrom, and further DECLARING the closure of
Boracay Island or the ban against petitioners, tourists, and non-residents therefrom to be
UNCONSTITUTIONAL.

Other reliefs just and equitable under the premises are similarly prayed for.[10]

On May 18, 2018, petitioners filed a Supplemental Petition[11] stating that the day
following the filing of their original petition or on April 26, 2018, President Duterte
issued Proclamation No. 475[12] formally declaring a state of calamity in Boracay
and ordering its closure for six months from April 26, 2018 to October 25, 2018.
The closure was implemented on even date. Thus, in addition to what they prayed
for in their original petition, petitioners implore the Court to declare as
unconstitutional Proclamation No. 475 insofar as it orders the closure of Boracay
and ban of tourists and nonresidents therefrom.[13]

In the Resolutions dated April 26, 2018[14] and June 5, 2018,[15] the Court required
respondents to file their Comment on the Petition and the Supplemental Petition,
respectively. Respondents filed their Consolidated Comment[16] on July 30, 2018
while petitioners filed their Reply[17] thereto on October 12, 2018.

On October 26, 2018, Boracay was reopened to tourism.

Petitioners' Arguments

Petitioners state that a petition for prohibition is the appropriate remedy to raise
constitutional issues and to review and/or prohibit or nullify, when proper, acts of
legislative and executive officials. An action for mandamus, on the other hand, lies
against a respondent who unlawfully excludes another from the enjoyment of an
entitled right or office. Justifying their resort to prohibition and mandamus,
petitioners assert that (1) this case presents constitutional issues, i.e., whether
President Duterte acted within the scope of the powers granted him by the
Constitution in ordering the closure of Boracay and, whether the measures
implemented infringe upon the constitutional rights to travel and to due process of
petitioners as well as of tourists and non-residents of the island; and, (2) President
Duterte exercised a power legislative in nature, thus unlawfully excluding the
legislative department from the assertion of such power.

As to the substantive aspect, petitioners argue that Proclamation No. 475 is an

invalid exercise of legislative powers. They posit that its issuance is in truth a law-
making exercise since the proclamation imposed a restriction on the right to travel
and therefore substantially altered the relationship between the State and its
people by increasing the former's power over the latter. Simply stated, petitioners
posit that Proclamation No. 475 partakes of a law the issuance of which is not
vested in the President. As such, Proclamation No. 475 must be struck down for
being the product of an invalid exercise of legislative power.

Likewise, petitioners argue that Proclamation No. 475 is unconstitutional for

infringing on the constitutional rights to travel and to due process.

Petitioners point out that although Section 6, Article III of the Constitution explicitly
allows the impairment of the right to travel, two conditions, however, must concur
to wit: (1) there is a law restricting the said right, and (2) the restriction is based
on national security, public safety or public health. For petitioners, neither of these
conditions have been complied with. For one, Proclamation No. 475 does not refer
to any specific law restricting the right to travel. Second, it has not been shown that
the presence of tourists in the island poses any threat or danger to national
security, public safety or public health.

As to the right to due process, petitioners aver that the same covers property rights
and these include the right to work and earn a living. Since the government,
through Proclamation No. 475, restricted the entry of tourists and non-residents
into the island, petitioners claim that they, as well as all others who work, do
business, or earn a living in the island, were deprived of the source of their
livelihood as a result thereof. Their right to work and earn a living was curtailed by
the proclamation. Moreover, while Proclamation No. 475 cites various violations of
environmental laws in the island, these, for the petitioners, do not justify disregard
of the rights of thousands of law-abiding people. They contend that environmental
laws provide for specific penalties intended only for violators. Verily, to make those
innocent of environmental transgressions suffer the consequences of the Boracay
closure is tantamount to violating their right to due process.

Petitioners likewise argue that the closure of Boracay could not be anchored on
police power. For one, police power must be exercised not by the executive but by
legislative bodies through the creation of statutes and ordinances that aim to
promote the health, moral, peace, education, safety, and general welfare of the
people. For another, the measure is unreasonably unnecessary and unduly
oppressive.

In their Supplemental Petition, petitioners aver that Proclamation No. 475 unduly
impinges upon the local autonomy of affected Local Government Units (LGUs) since
it orders the said LGUs to implement the closure of Boracay and the ban of tourists
and non-residents therefrom. While petitioners acknowledge the President's power
of supervision over LGUs, they nevertheless point out that he does not wield the
power of control over them. As such, President Duterte can only call the attention
of the LGUs concerned with regard to rules not being followed, which is the true
essence of supervision, but he cannot lay down the rules himself as this already
constitutes control.

Finally, petitioners state that this case does not simply revolve on the need to
rehabilitate Boracay, but rather, on the extent of executive power and the manner
by which it was wielded by President Duterte. To them, necessity does not justify
the President's abuse of power.

Respondents' Arguments

At the outset, respondents assert that President Duterte must be dropped as party-
respondent in this case because he is immune from suit. They also argue that the
petition should be dismissed outright for lack of basis. According to respondents,
prohibition is a preventive remedy to restrain future action. Here, President Duterte
had already issued Proclamation No. 475 and in fact, the rehabilitation of the island
was then already ongoing. These, according to respondents, have rendered
improper the issuance of a writ of prohibition considering that as a rule, prohibition
does not lie to restrain an act that is already fait accompli. Neither
is mandamus proper. Section 3, Rule 65 of the Rules of Court provides that
a mandamus petition may be resorted to when any tribunal, corporation, board,
officer or person unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or station. Respondents
argue that mandamus will not lie in this case because they were not neglectful of
their duty to protect the environment; on the contrary, they conscientiously
performed what they were supposed to do by ordering the closure of Boracay to
give way to its rehabilitation. Thus, to them, mandamus is obviously inappropriate.

At any rate, respondents contend that there is no real justiciable controversy in this
case. They see no clash between the right of the State to preserve and protect its
natural resources and the right of petitioners to earn a living. Proclamation No. 475
does not prohibit anyone from being gainfully employed.

Respondents moreover maintain that the petition is in the nature of a Strategic

Lawsuit Against Public Participation (SLAPP) under Rule 6 of A.M. No. 09-6-8-SC or
the Rules of Procedure for Environmental Cases, or a legal action filed to harass,
vex, exert undue pressure or stifle any legal recourse that any person, institution or
the government has taken or may take in the enforcement of environmental laws,
protection of the environment or assertion of environmental rights. Respondents
thus assert that the petition must be dismissed since it was filed for the said sole
purpose.

With regard to the substantive aspect, respondents contend that the issuance of
Proclamation No. 475 is a valid exercise of delegated legislative power, it being
anchored on Section 16 of Republic Act (RA) No. 10121, otherwise known as the
Philippine Disaster Risk Reduction and Management Act of 2010, or the authority
given to the President to declare a state of calamity, viz.:

SECTION 16. Declaration of State of Calamity. - The National Council shall

recommend to the President of the Philippines the declaration of a cluster of
barangays, municipalities, cities, provinces, and regions under a state of calamity,
and the lifting thereof, based on the criteria set by the National Council. The
President's declaration may warrant international humanitarian assistance as
deemed necessary.

xxxx

They likewise contend that Proclamation No. 475 was issued pursuant to the
President's executive power under Section 1, Article VII of the Constitution. As
generally defined, executive power is the power to enforce and administer laws. It
is the power of implementing the laws and enforcing their due observance. And in
order to effectively discharge the enforcement and administration of the laws, the
President is granted administrative power over bureaus and offices, which includes
the power of control. The power of control, in turn, refers to the authority to direct
the performance of a duty, restrain the commission of acts, review, approve,
reverse or modify acts and decisions of subordinate officials or units, and prescribe
standards, guidelines, plans and programs. Respondents allege that President
Duterte's issuance of Proclamation No. 475 was precipitated by his approval of the
recommendation of the National Disaster Risk Reduction and Management Council
(NDRRMC) to place Boracay under a state of calamity. By giving his imprimatur, it
is clear that the President merely exercised his power of control over the executive
branch.

In any case, respondents assert that the President has residual powers which are
implied from the grant of executive power and which are necessary for him to
comply with his duties under the Constitution as held in the case of Marcos v.
Manglapus.[18]

In sum, respondents emphasize that the issuance of Proclamation No. 475 is within
the ambit of the powers of the President, not contrary to the doctrine of separation
of powers, and in accordance with the mechanism laid out by the Constitution.

Further, respondents dispute petitioners' allegation that Proclamation No. 475

infringes upon the rights to travel and to due process. They emphasize that the
right to travel is not an absolute right. It may be impaired or restricted in the
interest of national security, public safety, or public health. In fact, there are
already several existing laws which serve as statutory limitations to the right to
travel.

Anent the alleged violation of the right to due process, respondents challenge
petitioners' claim that they were deprived of their livelihood without due process.
Respondents call attention to the fact that Zabal as sandcastle maker and
Jacosalem as driver are freelancers and thus belong to the informal economy
sector. This means that their source of livelihood is never guaranteed and is
susceptible to changes in regulations and the over-all business climate. In any case,
petitioners' contentions must yield to the State's exercise of police power. As held
in Ermita-Malate Hotel & Motel Operators Association, Inc. v. The Hon. City Mayor
of Manila,[19] the mere fact that some individuals in the community may be deprived
of their present business or of a particular mode of living cannot prevent the
exercise of the police power of the State. Indeed, to respondents, private interests
should yield to the reasonable prerogatives of the State for the public good and
welfare, which precisely are the primary objectives of the government measure
herein questioned

Lastly, respondents insist that Proclamation No. 475 does not unduly transgress
upon the local autonomy of the LGUs concerned. Under RA 10121, it is actually the
Local Disaster Risk Reduction Management Council concerned which, subject to
several criteria, is tasked to take the lead in preparing for, responding to, and
recovering from the effects of any disaster when a state of calamity is declared. In
any case, the devolution of powers upon LGUs pursuant to the constitutional
mandate of ensuring their autonomy does not mean that the State can no longer
interfere in their affairs. This is especially true in this case since Boracay's
environmental disaster cannot be treated as a localized problem that can be
resolved by the concerned LGUs only. The magnitude and gravity of the problem
require the intervention and assistance of different national government agencies in
coordination with the concerned LGUs.

As a final point, respondents aver that the bottom line of petitioners' lengthy
discourse and constitutional posturing is their intention to re-open Boracay to
tourists and non-residents for the then remainder of the duration of the closure and
thus perpetuate and further aggravate the island's environmental degradation.
Respondents posit that this is unacceptable since Boracay cannot be sacrificed for
the sake of profit and personal convenience of the few.

Our Ruling

First, we discuss the procedural issues.

President Duterte is dropped as

respondent in this case

As correctly pointed out by respondents, President Duterte must be dropped as

respondent in this case. The Court's pronouncement in Professor David v. President
Macapagal-Arroyo[20] on the non-suability of an incumbent President cannot be any
clearer, viz.:

x x x Settled is the doctrine that the President, during his tenure of office or actual
incumbency, may not be sued in any civil or criminal case, and there is no need to
provide for it in the Constitution or law. It will degrade the dignity of the high office
of the President, the Head of State, if he can be dragged into court litigations while
serving as such. Furthermore, it is important that he be freed from any form of
harassment, hindrance or distraction to enable him to fully attend to the
performance of his official duties and functions. Unlike the legislative and judicial
branch, only one constitutes the executive branch and anything which impairs his
usefulness in the discharge of the many great and important duties imposed upon
him by the Constitution necessarily impairs the operation of the Government.[21]

Accordingly, President Duterte is dropped as respondent in this case.

Propriety of Prohibition and Mandamus

Section 2, Rule 65 of the Rules of Court provides for a petition for prohibition as
follows:

SEC. 2. Petition for prohibition. – When the proceedings of any tribunal,

corporation, board, officer or person, whether exercising judicial, quasi-judicial or
ministerial functions, are without or in excess of its or his jurisdiction, or with grave
abuse of discretion amounting to lack or in excess of jurisdiction, and there is no
appeal or any other plain, speedy, and adequate remedy in the ordinary course of
law, a person aggrieved thereby may file a verified petition in the proper court,
alleging the facts with certainty and praying that judgment be rendered
commanding the respondent to desist from further proceedings in the action or
matter specified therein, or otherwise granting such incidental reliefs as law and
justice may require.

xxxx

"Indeed, prohibition is a preventive remedy seeking that a judgment be rendered

directing the defendant to desist from continuing with the commission of an act
perceived to be illegal. As a rule, the proper function of a writ of prohibition is to
prevent the performance of an act which is about to be done. It is not intended to
provide a remedy for acts already accomplished."[22]

Mandamus, on the other hand, is provided for by Section 3 of the same Rule 65:

SEC. 3. Petition for mandamus. – When any tribunal, corporation, board, officer or
person unlawfully neglects the performance of an act which the law specifically
enjoins as a duty resulting from an office, trust, station, or unlawfully excludes
another from the use and enjoyment of a right or office to which such other is
entitled, and there is no other plain, speedy and adequate remedy in the ordinary
course of law, the person aggrieved thereby may file a verified petition in the
proper court, alleging the facts with certainty and praying that judgment be
rendered commanding the respondent, immediately or at some other time to be
specified by the court, to do the act required to be done to protect the rights of the
petitioner, and to pay the damages sustained by the petitioner by reason of the
wrongful acts of the respondent.

xxxx
"As the quoted provision instructs, mandamus will lie if the tribunal, corporation,
board, officer, or person unlawfully neglects the performance of an act which the
law enjoins as a duty resulting from an office, trust, or station."[23]

It is upon the above-discussed contexts of prohibition and mandamus that

respondents base their contention of improper recourse. Respondents maintain that
prohibition is not proper in this case because the closure of Boracay is already a fait
accompli. Neither is mandamus appropriate since there is no neglect of duty on
their part as they were precisely performing their duty to protect the environment
when the closure was ordered.

Suffice it to state, however, that the use of prohibition and mandamus is not merely
confined to Rule 65. These extraordinary remedies may be invoked when
constitutional violations or issues are raised. As the Court stated in Spouses
Imbong v. Hon. Ochoa, Jr.:[24]

As far back as Tañada v. Angara, the Court has unequivocally declared

that certiorari, prohibition and mandamus are appropriate remedies to raise
constitutional issues and to review and/or prohibit/nullify, when proper,
acts of legislative and executive officials, as there is no other plain, speedy
or adequate remedy in the ordinary course of law. This ruling was later on
applied in Macalintal v. COMELEC, Aldaba v. COMELEC, Magallona v. Ermita, and
countless others. In Tañada, the Court wrote:

In seeking to nullify an act of the Philippine Senate on the ground that it

contravenes the Constitution, the petition no doubt raises a justiciable controversy.
Where an action of the legislative branch is seriously alleged to have infringed the
Constitution, it becomes not only the right but in fact the duty of the judiciary to
settle the dispute. 'The question thus posed is judicial rather than political. The duty
(to adjudicate) remains to assure that the supremacy of the Constitution is upheld.'
Once a 'controversy as to the application or interpretation of constitutional provision
is raised before this Court, as in the instant case, it becomes a legal issue which the
Court is bound by constitutional mandate to decide. x x x[25] (Citations omitted;
emphasis supplied)

It must be stressed, though, that resort to prohibition and mandamus on the basis
of alleged constitutional violations is not without limitations. After all, this Court
does not have unrestrained authority to rule on just about any and every claim of
constitutional violation.[26] The petition must be subjected to the four exacting
requisites for the exercise of the power of judicial review, viz.: (a) there must be an
actual case or controversy; (b) the petitioners must possess locus standi; (c) the
question of constitutionality must be raised at the earliest opportunity; and (d) the
issue of constitutionality must be the lis mota of the case.[27] Hence, it is not
enough that this petition mounts a constitutional challenge against Proclamation
No. 475. It is likewise necessary that it meets the aforementioned requisites before
the Court sustains the propriety of the recourse.

Existence of Requisites for Judicial Review

In La Bugal-B'laan Tribal Association, Inc. v. Sec. Ramos,[28] an actual case or
controversy was characterized as a "case or controversy that is appropriate or ripe
for determination, not conjectural or anticipatory, lest the decision of the court
would amount to an advisory opinion. The power does not extend to hypothetical
questions since any attempt at abstraction could only lead to dialectics and barren
legal question and to sterile conclusions unrelated to actualities."[29]

The existence of an actual controversy in this case is evident. President Duterte

issued Proclamation No. 475 on April 26, 2018 and, pursuant thereto, Boracay was
temporarily closed the same day. Entry of non-residents and tourists to the island
was not allowed until October 25, 2018. Certainly, the implementation of the
proclamation has rendered legitimate the concern of petitioners that constitutional
rights may have possibly been breached by this governmental measure. It bears to
state that when coupled with sufficient facts, "reasonable certainty of the
occurrence of a perceived threat to any constitutional interest suffices to provide a
basis for mounting a constitutional challenge".[30] And while it may be argued that
the reopening of Boracay has seemingly rendered moot and academic questions
relating to the ban of tourists and non-residents into the island, abstention from
judicial review is precluded by such possibility of constitutional violation and also by
the exceptional character of the situation, the paramount public interest involved,
and the fact that the case is capable of repetition.[31]

As to legal standing, petitioners assert that they were directly injured since their
right to travel and, their right to work and earn a living which thrives solely on
tourist arrivals, were affected by the closure. They likewise want to convince the
Court that the issues here are of transcendental importance since according to
them, the resolution of the same will have far-reaching consequences upon all
persons living and working in Boracay; upon the Province of Aklan which is heavily
reliant on the island's tourism industry; and upon the whole country considering
that fundamental constitutional rights were allegedly breached.

"Legal standing or locus standi is a party's personal and substantial interest in a

case such that he has sustained or will sustain direct injury as a result of the
governmental act being challenged. It calls for more than just a generalized
grievance. The term 'interest' means a material interest, an interest in issue
affected by the decree, as distinguished from mere interest in the question
involved, or a mere incidental interest."[32] There must be a present substantial
interest and not a mere expectancy or a future, contingent, subordinate, or
consequential interest.[33]

In Galicto v. Aquino III,[34] the therein petitioner, Jelbert B. Galicto (Galicto)

questioned the constitutionality of Executive Order No. 7 (EO7) issued by President
Benigno Simeon C. Aquino III, which ordered, among others, a moratorium on the
increases in the salaries and other forms of compensation of all government-
owned-and-controlled corporations (GOCCs) and government financial institutions.
The Court held that Galicto, an employee of the GOCC Philhealth, has no legal
standing to assail EO7 for his failure to demonstrate that he has a personal stake or
material interest in the outcome of the case. His interest, if any, was speculative
and based on a mere expectancy. Future increases in his salaries and other benefits
were contingent events or expectancies to which he has no vested rights. Hence, he
possessed no locus standi to question the curtailment thereof.

Here, as mentioned, Zabal is a sandcastle maker and Jacosalem, a driver. The

nature of their livelihood is one wherein earnings are not guaranteed. As correctly
pointed out by respondents, their earnings are not fixed and may vary depending
on the business climate in that while they can earn much on peak seasons, it is also
possible for them not to earn anything on lean seasons, especially when the rainy
days set in. Zabal and Jacosalem could not have been oblivious to this kind of
situation, they having been in the practice of their trade for a considerable length of
time. Clearly, therefore, what Zabal and Jacosalem could lose in this case are mere
projected earnings which are in no way guaranteed, and are sheer expectancies
characterized as contingent, subordinate, or consequential interest, just like
in Galicto. Concomitantly, an assertion of direct injury on the basis of loss of
income does not clothe Zabal and Jacosalem with legal standing.

As to Bandiola, the petition is bereft of any allegation as to his substantial interest

in the case and as to how he sustained direct injury as a result of the issuance of
Proclamation No. 475. While the allegation that he is a non-resident who
occasionally goes to Boracay for business and pleasure may suggest that he is
claiming direct injury on the premise that his right to travel was affected by the
proclamation, the petition fails to expressly provide specifics as to how. "It has
been held that a party who assails the constitutionality of a statute must have a
direct and personal interest. [He] must show not only that the law or any
governmental act is invalid, but also that [he] sustained or is in immediate danger
of sustaining some direct injury as a result of its enforcement, and not merely that
[he] suffers thereby in some indefinite way. [He] must show that [he] has been or
is about to be denied some right or privilege to which [he] is lawfully entitled or
that [he] is about to be subjected to some burdens or penalties by reason of the
statute or act complained of."[35] Indeed, the petition utterly fails to demonstrate
that Bandiola possesses the requisite legal standing to sue.

Notwithstanding petitioners' lack of locus standi, this Court will allow this petition to
proceed to its ultimate conclusion due to its transcendental importance. After all,
the rule on locus standi is a mere procedural technicality, which the Court, in a long
line of cases involving subjects of transcendental importance, has waived or
relaxed, thus allowing non-traditional plaintiffs such as concerned citizens,
taxpayers, voters and legislators to sue in cases of public interest, albeit they may
not have been personally injured by a government act.[36] More importantly, the
matters raised in this case, involved on one hand, possible violations of the
Constitution and, on the other, the need to rehabilitate the country's prime tourist
destination. Undeniably, these matters affect public interests and therefore are of
transcendental importance to the people. In addition, the situation calls for review
because as stated, it is capable of repetition, the Court taking judicial notice of the
many other places in our country that are suffering from similar environmental
degradation.
As to the two other requirements, their existence is indubitable. It will be recalled
that even before a formal issuance on the closure of Boracay was made by the
government, petitioners already brought the question of the constitutionality of the
then intended closure to this Court. And, a day after Proclamation No. 475 was
issued, they filed a supplemental petition impugning its constitutionality. Clearly,
the filing of the petition and the supplemental petition signals the earliest
opportunity that the constitutionality of the subject government measure could be
raised. There can also be no denying that the very lis mota of this case is the
constitutionality of Proclamation No. 475.

Defense of SLAPP

Suffice it to state that while this case touches on the environmental issues in
Boracay, the ultimate issue for resolution is the constitutionality of Proclamation
No. 475. The procedure in the treatment of a defense of SLAPP provided for under
Rule 6 of the Rules of Procedure for Environmental Cases should not, therefore, be
made to apply.

Now as to the substantive issues.

We first quote in full Proclamation No. 475.

PROCLAMATION No. 475

DECLARING A STATE OF CALAMITY IN THE BARANGAYS OF BALABAG, MANOC-

MANOC AND YAPAK (ISLAND OF BORACAY) IN THE MUNICIPALITY OF MALAY,
AKLAN, AND TEMPORARY CLOSURE OF THE ISLAND AS A TOURIST DESTINATION

WHEREAS, Section 15, Article II of the 1987 Constitution states that the State shall
protect and promote the right to health of the people and instill health
consciousness among them;

WHEREAS, Section 16, Article II of the 1987 Constitution provides that it is the
policy of the State to protect and advance the right of the people to a balanced and
healthful ecology in accord with the rhythm and harmony of nature;

WHEREAS, Section 2, Article XII of the 1987 Constitution provides that the State
shall protect the nation's marine wealth in its archipelagic waters, territorial sea,
and exclusive economic zone;

WHEREAS, an Inter-Agency Task Force, composed of the Department of

Environment and Natural Resources (DENR), the [DILG] and the Department of
Tourism (DOT), was established to evaluate the environmental state of the Island
of Boracay, and investigate possible violations of existing environmental and health
laws, rules and regulations;

WHEREAS, the investigations and validation undertaken revealed that:

 a. There is a high concentration of fecal coliform in the Bolabog beaches
located in the eastern side of Boracay Island due to insufficient sewer
lines and illegal discharge of untreated waste water into the beach,
with daily tests conducted from 6 to 10 March 2018 revealing
consistent failure in compliance with acceptable water standards, with
an average result of 18,000 most probable number (MPN)/100ml,
exceeding the standard level of 400 MPN/100ml;

b. Most commercial establishments and residences are not connected to

the sewerage infrastructure of Boracay Island, and waste products are
not being disposed through the proper sewerage infrastructures in
violation of environmental law, rules, and regulations;

c. Only 14 out of 51 establishments near the shores of Boracay Island

are compliant with the provision of Republic Act (RA) No. 9275 or the
Philippine Clean Water Act of 2004;

d. Dirty water results in the degradation of the coral reefs and coral cover
of Boracay Island, which declined by approximately 70.5% from 1988
to 2011, with the highest decrease taking place between 2008 and
2011 during a period of increased tourist arrivals (approximately
38.4%);

e. Solid waste within Boracay Island is at a generation rate of 90 to 115

tons per day, while the hauling capacity of the local government is
only 30 tons per day, hence, leaving approximately 85 tons of waste in
the Island daily;

f. The natural habitats of Puka shells, nesting grounds of marine turtles,

and roosting grounds of flying foxes or fruit bats have been damaged
and/or destroyed; and

g. Only four (4) out of nine (9) wetlands in Boracay Island remain due to
illegal encroachment of structures, including 937 identified illegal
structures constructed on forestlands and wetlands, as well as 102
illegal structures constructed on areas already classified as easements,
and the disappearance of the wetlands, which acts as natural
catchments, enhances flooding in the area;

WHEREAS, the findings of the Department of Science and Technology (DOST)

reveal that beach erosion is prevalent in Boracay Island, particularly along the West
Beach, where as much as 40 meters of erosion has taken place in the past 20 years
from 1993 to 2003, due to storms, extraction of sand along the beach to construct
properties and structures along the foreshore, and discharge of waste water near
the shore causing degradation of coral reefs and seagrass meadows that supply the
beach with sediments and serve as buffer to wave action;
WHEREAS, the DOST also reports that based on the 2010-2015 Coastal Ecosystem
Conservation and Adaptive Management Study of the Japan International
Cooperation Agency, direct discharge of waste water near the shore has resulted in
the frequent algal bloom and coral deterioration, which may reduce the source of
sand and cause erosion;

WHEREAS, the data from the Region VI - Western Visayas Regional Disaster Risk
Reduction and Management Council shows that the number of tourists in the island
in a day amounts to 18,082, and the tourist arrival increased by more than 160%
from 2012 to 2017;

WHEREAS, the continuous rise of tourist arrivals, the insufficient sewer and waste
management system, and environmental violations of establishments aggravate the
environmental degradation and destroy the ecological balance of the Island of
Boracay, resulting in major damage to property and natural resources, as well as
the disruption of the normal way of life of the people therein;

WHEREAS, it is necessary to implement urgent measures to address the

abovementioned human-induced hazards, to protect and promote the health and
well-being of its residents, workers and tourists, and to rehabilitate the Island in
order to ensure the sustainability of the area and prevent further degradation of its
rich ecosystem;

WHEREAS, RA No. 9275 provides that the DENR shall designate water bodies, or
portions thereof, where specific pollutants from either natural or man-made source
have already exceeded water quality guidelines as non-attainment areas for the
exceeded pollutants and shall prepare and implement a program that will not allow
new sources of exceeded water pollutant in non-attainment areas without a
corresponding reduction in discharges from existing sources;

WHEREAS, RA No. 9275 also mandates the DENR, in coordination with other
concerned agencies and the private sectors, to take such measures as may be
necessary to upgrade the quality of such water in non-attainment areas to meet the
standards under which it has been classified, and the local government units to
prepare and implement contingency plans and other measures including relocation,
whenever necessary, for the protection of health and welfare of the residents within
potentially affected areas;

WHEREAS, Proclamation No. 1064 (s. 2006) classified the Island of Boracay into
377.68 hectares of reserved forest land for protection purposes and 628.96
hectares of agricultural land as alienable and disposable land;

WHEREAS, pursuant to the Regalian Doctrine, and as emphasized in recent

jurisprudence, whereby all lands not privately owned belong to the State, the entire
island of Boracay is state-owned, except for lands already covered by existing valid
titles;
WHEREAS, pursuant to RA No. 10121, or the Philippine Disaster Risk Reduction
and Management Act of 2010, the National Disaster Risk Reduction and
Management Council has recommended the declaration of a State of Calamity in
the Island of Boracay and the temporary closure of the Island as a tourist
destination to ensure public safety and public health, and to assist the government
in its expeditious rehabilitation, as well as in addressing the evolving socio-
economic needs of affected communities;

NOW, THEREFORE, I, RODRIGO ROA DUTERTE, President of the Philippines, by

virtue of the powers vested in me by the Constitution and existing laws, do hereby
declare a State of Calamity in the barangays of Balabag, Manoc-Manoc and Yapak
(Island of Boracay) in the Municipality of Malay, Aklan. In this regard, the
temporary closure of the Island as a tourist destination for six (6) months starting
26 April 2018, or until 25 October 2018, is hereby ordered subject to applicable
laws, rules, regulations and jurisprudence.

Concerned government agencies shall, as may be necessary or appropriate,

undertake the remedial measures during a State of Calamity as provided in RA No.
10121 and other applicable laws, rules and regulations, such as control of the prices
of basic goods and commodities for the affected areas, employment of negotiated
procurement and utilization of appropriate funds, including the National Disaster
Risk Reduction and Management Fund, for relief and rehabilitation efforts in the
area. All departments and other concerned government agencies are also hereby
directed to coordinate with, and provide or augment the basic services and facilities
of affected local government units, if necessary.

The State of Calamity in the Island of Boracay shall remain in force and effect until
lifted by the President, notwithstanding the lapse of the six-month closure period.

All departments, agencies and offices, including government-owned or controlled

corporations and affected local government units are hereby directed to implement
and execute the abovementioned closure and the appropriate rehabilitation works,
in accordance with pertinent operational plans and directives, including the Boracay
Action Plan.

The Philippine National Police, Philippine Coast Guard and other law enforcement
agencies, with the support of the Armed Forces of the Philippines, are hereby
directed to act with restraint and within the bounds of the law in the strict
implementation of the closure of the Island and ensuring peace and order in the
area.

The Municipality of Malay, Aklan is also hereby directed to ensure that no tourist
will be allowed entry to the island of Boracay until such time that the closure has
been lifted by the President.

All tourists, residents and establishment owners in the area are also urged to act
within the bounds of the law and to comply with the directives herein provided for
the rehabilitation and restoration of the ecological balance of the Island which will
be for the benefit of all concerned.

It must be noted at the outset that petitioners failed to present and establish the
factual bases of their arguments because they went directly to this Court. In ruling
on the substantive issues in this case, the Court is, thus, constrained to rely on,
and uphold the factual bases, which prompted the issuance of the challenged
proclamation, as asserted by respondents. Besides, executive determinations, such
as said factual bases, are generally final on this Court.[37]

The Court observes that the meat of petitioners' constitutional challenge on

Proclamation No. 475 is the right to travel.

Clearly then, the one crucial question that needs to be preliminarily answered is
- does Proclamation No. 475 constitute an impairment on the right to travel?

The Court answers in the negative.

Proclamation No. 475 does not pose

an actual impairment on the right to
travel

Petitioners claim that Proclamation No. 475 impairs the right to travel based on the
following provisions:

NOW, THEREFORE, I, RODRIGO ROA DUTERTE, President of the Philippines, by

virtue of the powers vested in me by the Constitution and existing laws, do hereby
declare a State of Calamity in the barangays of Balabag, Manoc-Manoc and Yapak
(Island of Boracay) in the Municipality of Malay, Aklan. In this regard, the
temporary closure of the Island as a tourist destination for six (6) months
starting 26 April 2018, or until 25 October 2018, is hereby ordered subject
to applicable laws, rules, regulations and jurisprudence.

xxxx

The Municipality of Malay, Aklan is also hereby directed to ensure that no tourist
will be allowed entry to the island of Boracay until such time that the closure
has been lifted by the President.

xxxx

The activities proposed to be undertaken to rehabilitate Boracay involved

inspection, testing, demolition, relocation, and construction. These could not have
been implemented freely and smoothly with tourists coming in and out of the island
not only because of the possible disruption that they may cause to the works being
undertaken, but primarily because their safety and convenience might be
compromised. Also, the contaminated waters in the island were not just confined to
a small manageable area. The excessive water pollutants were all over Bolabog
beach and the numerous illegal drainpipes connected to and discharging
wastewater over it originate from different parts of the island. Indeed, the activities
occasioned by the necessary digging of these pipes and the isolation of the
contaminated beach waters to give way to treatment could not be done in the
presence of tourists. Aside from the dangers that these contaminated waters pose,
hotels, inns, and other accommodations may not be available as they would all be
inspected and checked to determine their compliance with environmental laws.
Moreover, it bears to state that a piece-meal closure of portions of the island would
not suffice since as mentioned, illegal drainpipes extend to the beach from various
parts of Boracay. Also, most areas in the island needed major structural
rectifications because of numerous resorts and tourism facilities which lie along
easement areas, illegally reclaimed wetlands, and of forested areas that were
illegally cleared for construction purposes. Hence, the need to close the island in its
entirety and ban tourists therefrom.

In fine, this case does not actually involve the right to travel in its essential sense
contrary to what petitioners want to portray. Any bearing that Proclamation No. 475
may have on the right to travel is merely corollary to the closure of Boracay and
the ban of tourists and non-residents therefrom which were necessary incidents of
the island's rehabilitation. There is certainly no showing that Proclamation No. 475
deliberately meant to impair the right to travel. The questioned proclamation is
clearly focused on its purpose of rehabilitating Boracay and any intention to directly
restrict the right cannot, in any manner, be deduced from its import. This is
contrary to the import of several laws recognized as constituting an impairment on
the right to travel which directly impose restriction on the right, viz.:

[1] The Human Security Act of 2010 or Republic Act (R.A.) No. 9372. The law
restricts the right travel of an individual charged with the crime of terrorism even
though such person is out on bail.

[2] The Philippine Passport Act of 1996 or R.A. No. 8239. Pursuant to said law, the
Secretary of Foreign Affairs or his authorized consular officer may refuse the
issuance of, restrict the use of, or withdraw, a passport of a Filipino citizen.

[3] The 'Anti-Trafficking in Persons Act of 2003' or RA 9208. Pursuant to the

provisions thereof, the Bureau of Immigration, in order to manage migration and
curb trafficking in persons, issued Memorandum Order Radjr No. 2011-011,
allowing its Travel Control and Enforcement Unit to 'offload passengers with
fraudulent travel documents, doubtful purpose of travel, including possible victims
of human trafficking' from our ports.

[4] The Migrant Workers and Overseas Filipinos Act of 1995 or R.A. No. 8042, as
amended by R.A. No. 10022. In enforcement of said law, the Philippine Overseas
Employment Administration (POEA) may refuse to issue deployment permit[s] to a
specific country that effectively prevents our migrant workers to enter such
country.
[5] The Act on Violence Against Women and Children or R.A. No. 9262. The law
restricts movement of an individual against whom the protection order is intended.

[6] Inter-Country Adoption Act of 1995 or R.A. No. 8043. Pursuant thereto, the
Inter-Country Adoption Board may issue rules restrictive of an adoptee's right to
travel 'to protect the Filipino child from abuse, exploitation, trafficking and/or sale
or any other practice in connection with adoption which is harmful, detrimental, or
prejudicial to the child.'[38]

In Philippine Association of Service Exporters, Inc. v. Hon. Drilon,[39] the Court held
that the consequence on the right to travel of the deployment ban implemented by
virtue of Department Order No. 1, Series of 1998 of the Department of Labor and
Employment does not impair the right.

Also significant to note is that the closure of Boracay was only temporary
considering the categorical pronouncement that it was only for a definite period of
six months.

Hence, if at all, the impact of Proclamation No. 475 on the right to travel is not
direct but merely consequential; and, the same is only for a reasonably short period
of time or merely temporary.

In this light, a discussion on whether President Duterte exercised a power

legislative in nature loses its significance. Since Proclamation No. 475 does not
actually impose a restriction on the right to travel, its issuance did not result to any
substantial alteration of the relationship between the State and the people. The
proclamation is therefore not a law and conversely, the President did not usurp the
law-making power of the legislature.

For obvious reason, there is likewise no more need to determine the existence in
this case of the requirements for a valid impairment of the right to travel.

Even if it is otherwise, Proclamation

No. 475 must be upheld for being in
the nature of a valid police power
measure

Police power, amongst the three fundamental and inherent powers of the state, is
the most pervasive and comprehensive.[40] "It has been defined as the 'state
authority to enact legislation that may interfere with personal liberty or property in
order to promote general welfare."[41] "As defined, it consists of (1) imposition or
restraint upon liberty or property, (2) in order to foster the common good. It is not
capable of exact definition but has been purposely, veiled in general terms to
underscore its all-comprehensive embrace."[42] The police power "finds no specific
Constitutional grant for the plain reason that it does not owe its origin to the
Charter"[43] since "it is inborn in the very fact of statehood and sovereignty."[44] It is
said to be the "inherent and plenary power of the State which enables it to prohibit
all things hurtful to the comfort, safety, and welfare of the society."[45] Thus, police
power constitutes an implied limitation on the Bill of Rights.[46] After all, "the Bill of
Rights itself does not purport to be an absolute guaranty of individual rights and
liberties. 'Even liberty itself, the greatest of all rights, is not unrestricted license to
act according to one's will.' It is subject to the far more overriding demands and
requirements of the greater number."[47]

"Expansive and extensive as its reach may be, police power is not a force without
limits."[48] "It has to be exercised within bounds – lawful ends through lawful
means, i.e., that the interests of the public generally, as distinguished from that of
a particular class, require its exercise, and that the means employed are reasonably
necessary for the accomplishment of the purpose while not being unduly oppressive
upon individuals."[49]

That the assailed governmental measure in this case is within the scope of police
power cannot be disputed. Verily, the statutes[50] from which the said measure
draws authority and the constitutional provisions[51] which serve as its framework
are primarily concerned with the environment and health, safety, and well-being of
the people, the promotion and securing of which are clearly legitimate objectives of
governmental efforts and regulations. The motivating factor in the issuance of
Proclamation No. 475 is without a doubt the interest of the public in general. The
only question now is whether the means employed are reasonably necessary for the
accomplishment of the purpose and not unduly oppressive upon individuals.

The pressing need to implement urgent measures to rehabilitate Boracay is beyond

cavil from the factual milieu that precipitated the President's issuance of
Proclamation No. 475. This necessity is even made more critical and insistent by
what the Court said in Oposa v. Hon. Factoran, Jr.[52] in regard the rights to a
balanced and healthful ecology and to health, which rights are likewise integral
concerns in this case. Oposa warned that unless the rights to a balanced and
healthful ecology and to health are given continuing importance and the State
assumes its solemn obligation to preserve and protect them, the time will come
that nothing will be left not only for this generation but for the generations to come
as well.[53] It further taught that the right to a balanced and healthful ecology
carries with it the correlative duty to refrain from impairing the environment.[54]

Against the foregoing backdrop, we now pose this question: Was the temporary
closure of Boracay as a tourist destination for six months reasonably necessary
under the circumstances? The answer is in the affirmative.

As earlier noted, one of the root causes of the problems that beset Boracay was
tourist influx. Tourist arrivals in the island were clearly far more than Boracay could
handle. As early as 2007, the DENR had already determined this as the major cause
of the catastrophic depletion of the island's biodiversity.[55] Also part of the equation
is the lack of commitment to effectively enforce pertinent environmental laws.
Unfortunately, direct action on these matters has been so elusive that the situation
reached a critical level. Hence, by then, only bold and sweeping steps were required
by the situation.
Certainly, the closure of Boracay, albeit temporarily, gave the island its much
needed breather, and likewise afforded the government the necessary leeway in its
rehabilitation program. Note that apart from review, evaluation and amendment of
relevant policies, the bulk of the rehabilitation activities involved inspection, testing,
demolition, relocation, and construction. These works could not have easily been
done with tourists present. The rehabilitation works in the first place were not
simple, superficial or mere cosmetic but rather quite complicated, major, and
permanent in character as they were intended to serve as long-term solutions to
the problem.[56] Also, time is of the essence. Every precious moment lost is to the
detriment of Boracay's environment and of the health and well-being of the people
thereat. Hence, any unnecessary distraction or disruption is most unwelcome.
Moreover, as part of the rehabilitation efforts, operations of establishments in
Boracay had to be halted in the course thereof since majority, if not all of them,
need to comply with environmental and regulatory requirements in order to align
themselves with the government's goal to restore Boracay into normalcy and
develop its sustainability. Allowing tourists into the island while it was undergoing
necessary rehabilitation would therefore be pointless as no establishment would
cater to their accommodation and other needs. Besides, it could not be said that
Boracay, at the time of the issuance of the questioned proclamation, was in such a
physical state that would meet its purpose of being a tourist destination. For one,
its beach waters could not be said to be totally safe for swimming. In any case, the
closure, to emphasize, was only for a definite period of six months, i.e., from April
26, 2018 to October 25, 2018. To the mind of the Court, this period constitutes a
reasonable time frame, if not to complete, but to at least put in place the necessary
rehabilitation works to be done in the island. Indeed, the temporary closure of
Boracay, although unprecedented and radical as it may seem, was reasonably
necessary and not unduly oppressive under the circumstances. It was the most
practical and realistic means of ensuring that rehabilitation works in the island are
started and carried out in the most efficacious and expeditious way. Absent a clear
showing of grave abuse of discretion, unreasonableness, arbitrariness or
oppressiveness, the Court will not disturb the executive determination that the
closure of Boracay was necessitated by the foregoing circumstances. As earlier
noted, petitioners totally failed to counter the factual bases of, and justification for
the challenged executive action.

Undoubtedly, Proclamation No. 475 is a valid police power measure. To repeat,

police power constitutes an implied limitation to the Bill of Rights, and that even
liberty itself, the greatest of all rights, is subject to the far more overriding
demands and requirements of the greater number.

For the above reasons, petitioners' constitutional challenge on Proclamation No. 475
anchored on their perceived impairment of the right to travel must fail.

Petitioners have no vested rights on

their sources of income as to be
entitled to due process
Petitioners argue that Proclamation No. 475 impinges on their constitutional right to
due process since they were deprived of the corollary right to work and earn a
living by reason of the issuance thereof.

Concededly, "[a] profession, trade or calling is a property right within the meaning
of our constitutional guarantees. One cannot be deprived of the right to work and
the right to make a living because these rights are property rights, the arbitrary
and unwarranted deprivation of which normally constitutes an actionable
wrong."[57] Under this premise, petitioners claim that they were deprived of due
process when their right to work and earn a living was taken away from them when
Boracay was ordered closed as a tourist destination. It must be stressed, though,
that "when the conditions so demand as determined by the legislature, property
rights must bow to the primacy of police power because property rights, though
sheltered by due process, must yield to general welfare."[58] Otherwise, police
power as an attribute to promote the common good would be diluted considerably if
on the mere plea of petitioners that they will suffer loss of earnings and capital,
government measures implemented pursuant to the said state power would be
stymied or invalidated.[59]

In any case, petitioners, particularly Zabal and Jacosalem, cannot be said to have
already acquired vested rights to their sources of income in Boracay. As heretofore
mentioned, they are part of the informal sector of the economy where earnings are
not guaranteed. In Southern Luzon Drug Corporation v. Department of Social
Welfare and Development,[60] the Court elucidated on vested rights, as follows:

x x x Vested rights are 'fixed, unalterable, or irrevocable.' More extensively, they

are depicted as follows:

Rights which have so completely and definitely accrued to or settled in a person

that they are not subject to be defeated or cancelled by the act of any other private
person, and which it is right and equitable that the government should recognize
and protect, as being lawful in themselves, and settled according to the then
current rules of law, and of which the individual could not be deprived arbitrarily
without injustice, or of which he could not justly be deprived otherwise than by the
established methods of procedure and for the public welfare. x x x A right is not
'vested' unless it is more than a mere expectancy based on the anticipated
continuance of present laws; it must be an established interest in property, not
open to doubt. x x x To be vested in its accurate legal sense, a right must be
complete and consummated, and one of which the person to whom it belongs
cannot be divested without his consent. x x x[61]

Here, Zabal and Jacosalem's asserted right to whatever they may earn from tourist
arrivals in Boracay is merely an inchoate right or one that has not fully developed
and therefore cannot be claimed as one's own. An inchoate right is a mere
expectation, which may or may not come into fruition. "It is contingent as it only
comes 'into existence on an event or condition which may not happen or be
performed until some other event may prevent their vesting."'[62] Clearly, said
petitioners' earnings are contingent in that, even assuming tourists are still allowed
in the island, they will still earn nothing if no one avails of their services. Certainly,
they do not possess any vested right on their sources of income, and under this
context, their claim of lack of due process collapses. To stress, only rights which
have completely and definitely accrued and settled are entitled protection under the
due process clause.

Besides, Proclamation No. 475 does not strip Zabal and Jacosalem of their right to
work and earn a living. They are free to work and practice their trade elsewhere.
That they were not able to do so in Boracay, at least for the duration of its closure,
is a necessary consequence of the police power measure to close and rehabilitate
the island.

Also clearly untenable is petitioners' claim that they were being made to suffer the
consequences of the environmental transgressions of others. It must be stressed
that the temporary closure of Boracay as a tourist destination and the consequent
ban of tourists into the island were not meant to serve as penalty to violators of
environmental laws. The temporary closure does not erase the environmental
violations committed; hence, the liabilities of the violators remain and only they
alone shall suffer the same. The temporary inconvenience that petitioners or other
persons may have experienced or are experiencing is but the consequence of the
police measure intended to attain a much higher purpose, that is, to protect the
environment, the health of the people, and the general welfare. Indeed, any and all
persons may be burdened by measures intended for the common good or to serve
some important governmental interest.[63]

No intrusion into the autonomy of the

concerned LGUs

The alleged intrusion of the President into the autonomy of the LGUs concerned is
likewise too trivial to merit this Court's consideration. Contrary to petitioners'
argument, RA 10121 recognizes and even puts a premium on the role of the LGUs
in disaster risk reduction and management as shown by the fact that a number of
the legislative policies set out in the subject statute recognize and aim to
strengthen the powers decentralized to LGUs.[64] This role is echoed in the
questioned proclamation.

The fact that other government agencies are involved in the rehabilitation works
does not create the inference that the powers and functions of the LGUs are being
encroached upon. The respective roles of each government agency are particularly
defined and enumerated in Executive Order No. 53[65] and all are in accordance with
their respective mandates. Also, the situation in Boracay can in no wise be
characterized or labelled as a mere local issue as to leave its rehabilitation to local
actors. Boracay is a prime tourist destination which caters to both local and foreign
tourists. Any issue thereat has corresponding effects, direct or otherwise, at a
national level. This, for one, reasonably takes the issues therein from a level that
concerns only the local officials. At any rate, notice must be taken of the fact that
even if the concerned LGUs have long been fully aware of the problems afflicting
Boracay, they failed to effectively remedy it. Yet still, in recognition of their
mandated roles and involvement in the rehabilitation of Boracay, Proclamation No.
475 directed “[a]ll departments, agencies and offices, including government-owned
or controlled corporations and affected local government units x x x to
implement and execute x x x the closure [of Boracay] and the appropriate
rehabilitation works, in accordance with pertinent operational plans and directives,
including the Boracay Action Plan. "

As a final note, the Court in Metropolitan Manila Development Authority v.

Concerned Residents of Manila Bay,[66] called out the concerned government
agencies for their cavalier attitude towards solving environmental destruction
despite hard evidence and clear signs of climate crisis. It equated the failure to put
environmental protection on a plane of high national priority to the then lacking
level of bureaucratic efficiency and commitment. Hence, the Court therein took it
upon itself to put the heads of concerned department-agencies and the bureaus and
offices under them on continuing notice and to enjoin them to perform their
mandates and duties towards the clean-up and/or restoration of Manila Bay,
through a "continuing mandamus." It likewise took the occasion to state, viz.:

In the light of the ongoing environmental degradation, the Court wishes to

emphasize the extreme necessity for all concerned executive departments and
agencies to immediately act and discharge their respective official duties and
obligations. Indeed, time is of the essence; hence, there is a need to set timetables
for the performance and completion of the tasks, some of them as defined for them
by law and the nature of their respective offices and mandates.

The importance of the Manila Bay as a sea resource, playground and as a historical
landmark cannot be over-emphasized. It is not yet too late in the day to restore the
Manila Bay to its former splendor and bring back the plants and sea life that once
thrived in its blue waters. But the tasks ahead, daunting as they may be, could only
be accomplished if those mandated, with the help and cooperation of all civic-
minded individuals, would put their minds to these tasks and take responsibility.
This means that the State, through [the concerned department-agencies], has to
take the lead in the preservation and protection of the Manila Bay.

The era of delays, procrastination, and ad hoc measures is over. [The concerned
department-agencies] must transcend their limitations, real or imaginary, and
buckle down to work before the problem at hand becomes unmanageable. Thus, we
must reiterate that different government agencies and instrumentalities cannot
shirk from their mandates; they must perform their basic functions in cleaning up
and rehabilitating the Manila Bay. x x x[67]

There is an obvious similarity in Metropolitan Manila Development Authority and in

the present case in that both involve the restoration of key areas in the country
which were once glowing with radiance and vitality but are now in shambles due to
abuses and exploitation. What sets these two cases apart is that in the former,
those mandated to act still needed to be enjoined in order to act. In this case, the
bold and urgent action demanded by the Court in Metropolitan Manila Development
Authority is now in the roll out. Still, the voice of cynicism, naysayers, and
procrastinators heard during times of inaction can still be heard during this time of
full action – demonstrating a classic case of "damn if you do, damn if you don't".
Thus, in order for the now staunch commitment to save the environment not to
fade, it behooves upon the courts to be extra cautious in invalidating government
measures meant towards addressing environmental degradation. Absent any clear
showing of constitutional infirmity, arbitrariness or grave abuse of discretion, these
measures must be upheld and even lauded and promoted. After all, not much time
is left for us to remedy the present environmental situation. To borrow from Oposa,
unless the State undertakes its solemn obligation to preserve the rights to a
balanced and healthful ecology and advance the health of the people, "the day
would not be too far when all else would be lost not only for the present generation,
but also for those to come – generations which stand to inherit nothing but parched
earth incapable of sustaining life."[68]

All told, the Court sustains the constitutionality and validity of Proclamation No.
475.

WHEREFORE, the Petition for Prohibition and Mandamus is DISMISSED.

SO ORDERED.

G.R. No. 158693 November 17, 2004

JENNY M. AGABON and VIRGILIO C. AGABON, petitioners,

vs.
NATIONAL LABOR RELATIONS COMMISSION (NLRC), RIVIERA HOME IMPROVEMENTS, INC.
and VICENTE ANGELES, respondents.

DECISION

YNARES-SANTIAGO, J.:

This petition for review seeks to reverse the decision1 of the Court of Appeals dated January 23,
2003, in CA-G.R. SP No. 63017, modifying the decision of National Labor Relations Commission
(NLRC) in NLRC-NCR Case No. 023442-00.

Private respondent Riviera Home Improvements, Inc. is engaged in the business of selling and
installing ornamental and construction materials. It employed petitioners Virgilio Agabon and Jenny
Agabon as gypsum board and cornice installers on January 2, 19922 until February 23, 1999 when
they were dismissed for abandonment of work.

Petitioners then filed a complaint for illegal dismissal and payment of money claims3 and on
December 28, 1999, the Labor Arbiter rendered a decision declaring the dismissals illegal and
ordered private respondent to pay the monetary claims. The dispositive portion of the decision
states:

WHEREFORE, premises considered, We find the termination of the complainants illegal.

Accordingly, respondent is hereby ordered to pay them their backwages up to November 29,
1999 in the sum of:

1. Jenny M. Agabon - P56, 231.93

2. Virgilio C. Agabon - 56, 231.93

and, in lieu of reinstatement to pay them their separation pay of one (1) month for every year
of service from date of hiring up to November 29, 1999.

Respondent is further ordered to pay the complainants their holiday pay and service
incentive leave pay for the years 1996, 1997 and 1998 as well as their premium pay for
holidays and rest days and Virgilio Agabon's 13th month pay differential amounting to TWO
THOUSAND ONE HUNDRED FIFTY (P2,150.00) Pesos, or the aggregate amount of ONE
HUNDRED TWENTY ONE THOUSAND SIX HUNDRED SEVENTY EIGHT & 93/100
(P121,678.93) Pesos for Jenny Agabon, and ONE HUNDRED TWENTY THREE
THOUSAND EIGHT HUNDRED TWENTY EIGHT & 93/100 (P123,828.93) Pesos for Virgilio
Agabon, as per attached computation of Julieta C. Nicolas, OIC, Research and Computation
Unit, NCR.

SO ORDERED.4

On appeal, the NLRC reversed the Labor Arbiter because it found that the petitioners had
abandoned their work, and were not entitled to backwages and separation pay. The other money
claims awarded by the Labor Arbiter were also denied for lack of evidence.5

Upon denial of their motion for reconsideration, petitioners filed a petition for certiorari with the Court
of Appeals.

The Court of Appeals in turn ruled that the dismissal of the petitioners was not illegal because they
had abandoned their employment but ordered the payment of money claims. The dispositive portion
of the decision reads:

WHEREFORE, the decision of the National Labor Relations Commission is REVERSED only
insofar as it dismissed petitioner's money claims. Private respondents are ordered to pay
petitioners holiday pay for four (4) regular holidays in 1996, 1997, and 1998, as well as their
service incentive leave pay for said years, and to pay the balance of petitioner Virgilio
Agabon's 13th month pay for 1998 in the amount of P2,150.00.

SO ORDERED.6

Hence, this petition for review on the sole issue of whether petitioners were illegally dismissed.7
Petitioners assert that they were dismissed because the private respondent refused to give them
assignments unless they agreed to work on a "pakyaw" basis when they reported for duty on
February 23, 1999. They did not agree on this arrangement because it would mean losing benefits
as Social Security System (SSS) members. Petitioners also claim that private respondent did not
comply with the twin requirements of notice and hearing.8

Private respondent, on the other hand, maintained that petitioners were not dismissed but had
abandoned their work.9 In fact, private respondent sent two letters to the last known addresses of the
petitioners advising them to report for work. Private respondent's manager even talked to petitioner
Virgilio Agabon by telephone sometime in June 1999 to tell him about the new assignment at Pacific
Plaza Towers involving 40,000 square meters of cornice installation work. However, petitioners did
not report for work because they had subcontracted to perform installation work for another
company. Petitioners also demanded for an increase in their wage to P280.00 per day. When this
was not granted, petitioners stopped reporting for work and filed the illegal dismissal case.10

It is well-settled that findings of fact of quasi-judicial agencies like the NLRC are accorded not only
respect but even finality if the findings are supported by substantial evidence. This is especially so
when such findings were affirmed by the Court of Appeals.11 However, if the factual findings of the
NLRC and the Labor Arbiter are conflicting, as in this case, the reviewing court may delve into the
records and examine for itself the questioned findings.12

Accordingly, the Court of Appeals, after a careful review of the facts, ruled that petitioners' dismissal
was for a just cause. They had abandoned their employment and were already working for another
employer.

To dismiss an employee, the law requires not only the existence of a just and valid cause but also
enjoins the employer to give the employee the opportunity to be heard and to defend himself.13 Article
282 of the Labor Code enumerates the just causes for termination by the employer: (a) serious
misconduct or willful disobedience by the employee of the lawful orders of his employer or the latter's
representative in connection with the employee's work; (b) gross and habitual neglect by the
employee of his duties; (c) fraud or willful breach by the employee of the trust reposed in him by his
employer or his duly authorized representative; (d) commission of a crime or offense by the
employee against the person of his employer or any immediate member of his family or his duly
authorized representative; and (e) other causes analogous to the foregoing.

Abandonment is the deliberate and unjustified refusal of an employee to resume his employment.14 It
is a form of neglect of duty, hence, a just cause for termination of employment by the employer.15 For
a valid finding of abandonment, these two factors should be present: (1) the failure to report for work
or absence without valid or justifiable reason; and (2) a clear intention to sever employer-employee
relationship, with the second as the more determinative factor which is manifested by overt acts from
which it may be deduced that the employees has no more intention to work. The intent to
discontinue the employment must be shown by clear proof that it was deliberate and unjustified.16

In February 1999, petitioners were frequently absent having subcontracted for an installation work
for another company. Subcontracting for another company clearly showed the intention to sever the
employer-employee relationship with private respondent. This was not the first time they did this. In
January 1996, they did not report for work because they were working for another company. Private
respondent at that time warned petitioners that they would be dismissed if this happened again.
Petitioners disregarded the warning and exhibited a clear intention to sever their employer-employee
relationship. The record of an employee is a relevant consideration in determining the penalty that
should be meted out to him.17
In Sandoval Shipyard v. Clave,18 we held that an employee who deliberately absented from work
without leave or permission from his employer, for the purpose of looking for a job elsewhere, is
considered to have abandoned his job. We should apply that rule with more reason here where
petitioners were absent because they were already working in another company.

The law imposes many obligations on the employer such as providing just compensation to workers,
observance of the procedural requirements of notice and hearing in the termination of employment.
On the other hand, the law also recognizes the right of the employer to expect from its workers not
only good performance, adequate work and diligence, but also good conduct19 and loyalty. The
employer may not be compelled to continue to employ such persons whose continuance in the
service will patently be inimical to his interests.20

After establishing that the terminations were for a just and valid cause, we now determine if the
procedures for dismissal were observed.

The procedure for terminating an employee is found in Book VI, Rule I, Section 2(d) of the Omnibus
Rules Implementing the Labor Code:

Standards of due process: requirements of notice. – In all cases of termination of

employment, the following standards of due process shall be substantially observed:

I. For termination of employment based on just causes as defined in Article 282 of the Code:

(a) A written notice served on the employee specifying the ground or grounds for termination,
and giving to said employee reasonable opportunity within which to explain his side;

(b) A hearing or conference during which the employee concerned, with the assistance of
counsel if the employee so desires, is given opportunity to respond to the charge, present his
evidence or rebut the evidence presented against him; and

(c) A written notice of termination served on the employee indicating that upon due
consideration of all the circumstances, grounds have been established to justify his
termination.

In case of termination, the foregoing notices shall be served on the employee's last known
address.

Dismissals based on just causes contemplate acts or omissions attributable to the employee while
dismissals based on authorized causes involve grounds under the Labor Code which allow the
employer to terminate employees. A termination for an authorized cause requires payment of
separation pay. When the termination of employment is declared illegal, reinstatement and full
backwages are mandated under Article 279. If reinstatement is no longer possible where the
dismissal was unjust, separation pay may be granted.

Procedurally, (1) if the dismissal is based on a just cause under Article 282, the employer must give
the employee two written notices and a hearing or opportunity to be heard if requested by the
employee before terminating the employment: a notice specifying the grounds for which dismissal is
sought a hearing or an opportunity to be heard and after hearing or opportunity to be heard, a notice
of the decision to dismiss; and (2) if the dismissal is based on authorized causes under Articles 283
and 284, the employer must give the employee and the Department of Labor and Employment
written notices 30 days prior to the effectivity of his separation.
From the foregoing rules four possible situations may be derived: (1) the dismissal is for a just cause
under Article 282 of the Labor Code, for an authorized cause under Article 283, or for health reasons
under Article 284, and due process was observed; (2) the dismissal is without just or authorized
cause but due process was observed; (3) the dismissal is without just or authorized cause and there
was no due process; and (4) the dismissal is for just or authorized cause but due process was not
observed.

In the first situation, the dismissal is undoubtedly valid and the employer will not suffer any liability.

In the second and third situations where the dismissals are illegal, Article 279 mandates that the
employee is entitled to reinstatement without loss of seniority rights and other privileges and full
backwages, inclusive of allowances, and other benefits or their monetary equivalent computed from
the time the compensation was not paid up to the time of actual reinstatement.

In the fourth situation, the dismissal should be upheld. While the procedural infirmity cannot be
cured, it should not invalidate the dismissal. However, the employer should be held liable for non-
compliance with the procedural requirements of due process.

The present case squarely falls under the fourth situation. The dismissal should be upheld because
it was established that the petitioners abandoned their jobs to work for another company. Private
respondent, however, did not follow the notice requirements and instead argued that sending notices
to the last known addresses would have been useless because they did not reside there anymore.
Unfortunately for the private respondent, this is not a valid excuse because the law mandates the
twin notice requirements to the employee's last known address.21 Thus, it should be held liable for
non-compliance with the procedural requirements of due process.

A review and re-examination of the relevant legal principles is appropriate and timely to clarify the
various rulings on employment termination in the light of Serrano v. National Labor Relations
Commission.22

Prior to 1989, the rule was that a dismissal or termination is illegal if the employee was not given any
notice. In the 1989 case of Wenphil Corp. v. National Labor Relations Commission,23 we reversed this
long-standing rule and held that the dismissed employee, although not given any notice and hearing,
was not entitled to reinstatement and backwages because the dismissal was for grave misconduct
and insubordination, a just ground for termination under Article 282. The employee had a violent
temper and caused trouble during office hours, defying superiors who tried to pacify him. We
concluded that reinstating the employee and awarding backwages "may encourage him to do even
worse and will render a mockery of the rules of discipline that employees are required to
observe."24 We further held that:

Under the circumstances, the dismissal of the private respondent for just cause should be
maintained. He has no right to return to his former employment.

However, the petitioner must nevertheless be held to account for failure to extend to private
respondent his right to an investigation before causing his dismissal. The rule is explicit as
above discussed. The dismissal of an employee must be for just or authorized cause and
after due process. Petitioner committed an infraction of the second requirement. Thus, it
must be imposed a sanction for its failure to give a formal notice and conduct an
investigation as required by law before dismissing petitioner from employment. Considering
the circumstances of this case petitioner must indemnify the private respondent the amount
of P1,000.00. The measure of this award depends on the facts of each case and the gravity
of the omission committed by the employer.25
The rule thus evolved: where the employer had a valid reason to dismiss an employee but did not
follow the due process requirement, the dismissal may be upheld but the employer will be penalized
to pay an indemnity to the employee. This became known as the Wenphil or Belated Due Process
Rule.

On January 27, 2000, in Serrano, the rule on the extent of the sanction was changed. We held that
the violation by the employer of the notice requirement in termination for just or authorized causes
was not a denial of due process that will nullify the termination. However, the dismissal is ineffectual
and the employer must pay full backwages from the time of termination until it is judicially declared
that the dismissal was for a just or authorized cause.

The rationale for the re-examination of the Wenphil doctrine in Serrano was the significant number of
cases involving dismissals without requisite notices. We concluded that the imposition of penalty by
way of damages for violation of the notice requirement was not serving as a deterrent. Hence, we
now required payment of full backwages from the time of dismissal until the time the Court finds the
dismissal was for a just or authorized cause.

Serrano was confronting the practice of employers to "dismiss now and pay later" by imposing full
backwages.

We believe, however, that the ruling in Serrano did not consider the full meaning of Article 279 of the
Labor Code which states:

ART. 279. Security of Tenure. – In cases of regular employment, the employer shall not
terminate the services of an employee except for a just cause or when authorized by this
Title. An employee who is unjustly dismissed from work shall be entitled to reinstatement
without loss of seniority rights and other privileges and to his full backwages, inclusive of
allowances, and to his other benefits or their monetary equivalent computed from the time
his compensation was withheld from him up to the time of his actual reinstatement.

This means that the termination is illegal only if it is not for any of the justified or authorized causes
provided by law. Payment of backwages and other benefits, including reinstatement, is justified only
if the employee was unjustly dismissed.

The fact that the Serrano ruling can cause unfairness and injustice which elicited strong dissent has
prompted us to revisit the doctrine.

To be sure, the Due Process Clause in Article III, Section 1 of the Constitution embodies a system of
rights based on moral principles so deeply imbedded in the traditions and feelings of our people as
to be deemed fundamental to a civilized society as conceived by our entire history. Due process is
that which comports with the deepest notions of what is fair and right and just.26 It is a constitutional
restraint on the legislative as well as on the executive and judicial powers of the government
provided by the Bill of Rights.

Due process under the Labor Code, like Constitutional due process, has two aspects:
substantive, i.e., the valid and authorized causes of employment termination under the Labor Code;
and procedural, i.e., the manner of dismissal. Procedural due process requirements for dismissal are
found in the Implementing Rules of P.D. 442, as amended, otherwise known as the Labor Code of
the Philippines in Book VI, Rule I, Sec. 2, as amended by Department Order Nos. 9 and
10.27 Breaches of these due process requirements violate the Labor Code. Therefore statutory due
process should be differentiated from failure to comply with constitutional due process.
Constitutional due process protects the individual from the government and assures him of his rights
in criminal, civil or administrative proceedings; while statutory due process found in the Labor Code
and Implementing Rules protects employees from being unjustly terminated without just cause after
notice and hearing.

In Sebuguero v. National Labor Relations Commission,28 the dismissal was for a just and valid cause
but the employee was not accorded due process. The dismissal was upheld by the Court but the
employer was sanctioned. The sanction should be in the nature of indemnification or penalty, and
depends on the facts of each case and the gravity of the omission committed by the employer.

In Nath v. National Labor Relations Commission,29 it was ruled that even if the employee was not
given due process, the failure did not operate to eradicate the just causes for dismissal. The
dismissal being for just cause, albeit without due process, did not entitle the employee to
reinstatement, backwages, damages and attorney's fees.

Mr. Justice Jose C. Vitug, in his separate opinion in MGG Marine Services, Inc. v. National Labor
Relations Commission,30 which opinion he reiterated in Serrano, stated:

C. Where there is just cause for dismissal but due process has not been properly observed
by an employer, it would not be right to order either the reinstatement of the dismissed
employee or the payment of backwages to him. In failing, however, to comply with the
procedure prescribed by law in terminating the services of the employee, the employer must
be deemed to have opted or, in any case, should be made liable, for the payment of
separation pay. It might be pointed out that the notice to be given and the hearing to be
conducted generally constitute the two-part due process requirement of law to be accorded
to the employee by the employer. Nevertheless, peculiar circumstances might obtain in
certain situations where to undertake the above steps would be no more than a useless
formality and where, accordingly, it would not be imprudent to apply the res ipsa loquitur rule
and award, in lieu of separation pay, nominal damages to the employee. x x x.31

After carefully analyzing the consequences of the divergent doctrines in the law on employment
termination, we believe that in cases involving dismissals for cause but without observance of the
twin requirements of notice and hearing, the better rule is to abandon the Serrano doctrine and to
follow Wenphil by holding that the dismissal was for just cause but imposing sanctions on the
employer. Such sanctions, however, must be stiffer than that imposed in Wenphil. By doing so, this
Court would be able to achieve a fair result by dispensing justice not just to employees, but to
employers as well.

The unfairness of declaring illegal or ineffectual dismissals for valid or authorized causes but not
complying with statutory due process may have far-reaching consequences.

This would encourage frivolous suits, where even the most notorious violators of company policy are
rewarded by invoking due process. This also creates absurd situations where there is a just or
authorized cause for dismissal but a procedural infirmity invalidates the termination. Let us take for
example a case where the employee is caught stealing or threatens the lives of his co-employees or
has become a criminal, who has fled and cannot be found, or where serious business losses
demand that operations be ceased in less than a month. Invalidating the dismissal would not serve
public interest. It could also discourage investments that can generate employment in the local
economy.

The constitutional policy to provide full protection to labor is not meant to be a sword to oppress
employers. The commitment of this Court to the cause of labor does not prevent us from sustaining
the employer when it is in the right, as in this case.32 Certainly, an employer should not be compelled
to pay employees for work not actually performed and in fact abandoned.

The employer should not be compelled to continue employing a person who is admittedly guilty of
misfeasance or malfeasance and whose continued employment is patently inimical to the employer.
The law protecting the rights of the laborer authorizes neither oppression nor self-destruction of the
employer.33

It must be stressed that in the present case, the petitioners committed a grave offense, i.e.,
abandonment, which, if the requirements of due process were complied with, would undoubtedly
result in a valid dismissal.

An employee who is clearly guilty of conduct violative of Article 282 should not be protected by the
Social Justice Clause of the Constitution. Social justice, as the term suggests, should be used only
to correct an injustice. As the eminent Justice Jose P. Laurel observed, social justice must be
founded on the recognition of the necessity of interdependence among diverse units of a society and
of the protection that should be equally and evenly extended to all groups as a combined force in our
social and economic life, consistent with the fundamental and paramount objective of the state of
promoting the health, comfort, and quiet of all persons, and of bringing about "the greatest good to
the greatest number."34

This is not to say that the Court was wrong when it ruled the way it did in Wenphil, Serrano and
related cases. Social justice is not based on rigid formulas set in stone. It has to allow for changing
times and circumstances.

Justice Isagani Cruz strongly asserts the need to apply a balanced approach to labor-management
relations and dispense justice with an even hand in every case:

We have repeatedly stressed that social justice – or any justice for that matter – is for the
deserving, whether he be a millionaire in his mansion or a pauper in his hovel. It is true that,
in case of reasonable doubt, we are to tilt the balance in favor of the poor to whom the
Constitution fittingly extends its sympathy and compassion. But never is it justified to give
preference to the poor simply because they are poor, or reject the rich simply because they
are rich, for justice must always be served for the poor and the rich alike, according to the
mandate of the law.35

Justice in every case should only be for the deserving party. It should not be presumed that every
case of illegal dismissal would automatically be decided in favor of labor, as management has rights
that should be fully respected and enforced by this Court. As interdependent and indispensable
partners in nation-building, labor and management need each other to foster productivity and
economic growth; hence, the need to weigh and balance the rights and welfare of both the employee
and employer.

Where the dismissal is for a just cause, as in the instant case, the lack of statutory due process
should not nullify the dismissal, or render it illegal, or ineffectual. However, the employer should
indemnify the employee for the violation of his statutory rights, as ruled in Reta v. National Labor
Relations Commission.36 The indemnity to be imposed should be stiffer to discourage the abhorrent
practice of "dismiss now, pay later," which we sought to deter in the Serrano ruling. The sanction
should be in the nature of indemnification or penalty and should depend on the facts of each case,
taking into special consideration the gravity of the due process violation of the employer.
Under the Civil Code, nominal damages is adjudicated in order that a right of the plaintiff, which has
been violated or invaded by the defendant, may be vindicated or recognized, and not for the purpose
of indemnifying the plaintiff for any loss suffered by him.37

As enunciated by this Court in Viernes v. National Labor Relations Commissions,38 an employer is

liable to pay indemnity in the form of nominal damages to an employee who has been dismissed if,
in effecting such dismissal, the employer fails to comply with the requirements of due process. The
Court, after considering the circumstances therein, fixed the indemnity at P2,590.50, which was
equivalent to the employee's one month salary. This indemnity is intended not to penalize the
employer but to vindicate or recognize the employee's right to statutory due process which was
violated by the employer.39

The violation of the petitioners' right to statutory due process by the private respondent warrants the
payment of indemnity in the form of nominal damages. The amount of such damages is addressed
to the sound discretion of the court, taking into account the relevant circumstances.40 Considering the
prevailing circumstances in the case at bar, we deem it proper to fix it at P30,000.00. We believe this
form of damages would serve to deter employers from future violations of the statutory due process
rights of employees. At the very least, it provides a vindication or recognition of this fundamental
right granted to the latter under the Labor Code and its Implementing Rules.

Private respondent claims that the Court of Appeals erred in holding that it failed to pay petitioners'
holiday pay, service incentive leave pay and 13th month pay.

We are not persuaded.

We affirm the ruling of the appellate court on petitioners' money claims. Private respondent is liable
for petitioners' holiday pay, service incentive leave pay and 13th month pay without deductions.

As a general rule, one who pleads payment has the burden of proving it. Even where the employee
must allege non-payment, the general rule is that the burden rests on the employer to prove
payment, rather than on the employee to prove non-payment. The reason for the rule is that the
pertinent personnel files, payrolls, records, remittances and other similar documents – which will
show that overtime, differentials, service incentive leave and other claims of workers have been paid
– are not in the possession of the worker but in the custody and absolute control of the employer.41

In the case at bar, if private respondent indeed paid petitioners' holiday pay and service incentive
leave pay, it could have easily presented documentary proofs of such monetary benefits to disprove
the claims of the petitioners. But it did not, except with respect to the 13th month pay wherein it
presented cash vouchers showing payments of the benefit in the years disputed.42 Allegations by
private respondent that it does not operate during holidays and that it allows its employees 10 days
leave with pay, other than being self-serving, do not constitute proof of payment. Consequently, it
failed to discharge the onus probandi thereby making it liable for such claims to the petitioners.

Anent the deduction of SSS loan and the value of the shoes from petitioner Virgilio Agabon's 13th
month pay, we find the same to be unauthorized. The evident intention of Presidential Decree No.
851 is to grant an additional income in the form of the 13th month pay to employees not already
receiving the same43 so as "to further protect the level of real wages from the ravages of world-wide
inflation."44 Clearly, as additional income, the 13th month pay is included in the definition of wage
under Article 97(f) of the Labor Code, to wit:

(f) "Wage" paid to any employee shall mean the remuneration or earnings, however
designated, capable of being expressed in terms of money whether fixed or ascertained on a
 time, task, piece , or commission basis, or other method of calculating the same, which is
payable by an employer to an employee under a written or unwritten contract of employment
for work done or to be done, or for services rendered or to be rendered and includes the fair
and reasonable value, as determined by the Secretary of Labor, of board, lodging, or other
facilities customarily furnished by the employer to the employee…"

from which an employer is prohibited under Article 11345 of the same Code from making any
deductions without the employee's knowledge and consent. In the instant case, private respondent
failed to show that the deduction of the SSS loan and the value of the shoes from petitioner Virgilio
Agabon's 13th month pay was authorized by the latter. The lack of authority to deduct is further
bolstered by the fact that petitioner Virgilio Agabon included the same as one of his money claims
against private respondent.

The Court of Appeals properly reinstated the monetary claims awarded by the Labor Arbiter ordering
the private respondent to pay each of the petitioners holiday pay for four regular holidays from 1996
to 1998, in the amount of P6,520.00, service incentive leave pay for the same period in the amount
of P3,255.00 and the balance of Virgilio Agabon's thirteenth month pay for 1998 in the amount of
P2,150.00.

WHEREFORE, in view of the foregoing, the petition is DENIED. The decision of the Court of
Appeals dated January 23, 2003, in CA-G.R. SP No. 63017, finding that petitioners' Jenny and
Virgilio Agabon abandoned their work, and ordering private respondent to pay each of the petitioners
holiday pay for four regular holidays from 1996 to 1998, in the amount of P6,520.00, service
incentive leave pay for the same period in the amount of P3,255.00 and the balance of Virgilio
Agabon's thirteenth month pay for 1998 in the amount of P2,150.00 is AFFIRMED with
the MODIFICATION that private respondent Riviera Home Improvements, Inc. is
further ORDERED to pay each of the petitioners the amount of P30,000.00 as nominal damages for
non-compliance with statutory due process.

No costs.

SO ORDERED.

Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez,

Corona, Carpio-Morales, Callejo, Sr., Azcuna, Tinga, Chico-Nazario, and Garcia, JJ., concur.

SEPARATE OPINION

TINGA, J:

I concur in the result, the final disposition of the petition being correct. There is no denying the
importance of the Court's ruling today, which should be considered as definitive as to the effect of
the failure to render the notice and hearing required under the Labor Code when an employee is
being dismissed for just causes, as defined under the same law. The Court emphatically reaffirms
the rule that dismissals for just cause are not invalidated due to the failure of the employer to
observe the proper notice and hearing requirements under the Labor Code. At the same time,
The Decision likewise establishes that the Civil Code provisions on damages serve as the proper
framework for the appropriate relief to the employee dismissed for just cause if the notice-hearing
requirement is not met. Serrano v. NLRC,1 insofar as it is controlling in dismissals for unauthorized
causes, is no longer the controlling precedent. Any and all previous rulings and statements of the
Court inconsistent with these determinations are now deemed inoperative.

My views on the questions raised in this petition are comprehensive, if I may so in all modesty. I offer
this opinion to discuss the reasoning behind my conclusions, pertaining as they do to questions of
fundamental importance.

Prologue

The factual backdrop of the present Petition for Review is not novel. Petitioners claim that they were
illegally dismissed by the respondents, who allege in turn that petitioners had actually abandoned
their employment. There is little difficulty in upholding the findings of the NRLC and the Court of
Appeals that petitioners are guilty of abandonment, one of the just causes for termination under the
Labor Code. Yet, the records also show that the employer was remiss in not giving the notice
required by the Labor Code; hence, the resultant controversy as to the legal effect of such failure vis-
à-vis the warranted dismissal.

Ostensibly, the matter has been settled by our decision in Serrano2, wherein the Court ruled that the
failure to properly observe the notice requirement did not render the dismissal, whether for just or
authorized causes, null and void, for such violation was not a denial of the constitutional right to due
process, and that the measure of appropriate damages in such cases ought to be the amount of
wages the employee should have received were it not for the termination of his employment without
prior notice.3 Still, the Court has, for good reason, opted to reexamine the so-called Serrano doctrine
through the present petition

Antecedent Facts

Respondent Riviera Home Improvements, Inc (Riviera Home) is engaged in the manufacture and
installation of gypsum board and cornice. In January of 1992, the Agabons were hired in January of
1992 as cornice installers by Riviera Home. According to their personnel file with Riviera Home, the
Agabon given address was 3RDS Tailoring, E. Rodriguez Ave., Moonwalk Subdivision, P-II
Parañaque City, Metro Manila.4

It is not disputed that sometime around February 1999, the Agabons stopped rendering services for
Riviera Home. The Agabons allege that beginning on 23 February 1999, they stopped receiving
assignments from Riviera Home.5 When they demanded an explanation, the manager of Riviera
Homes, Marivic Ventura, informed them that they would be hired again, but on a "pakyaw" (piece-
work) basis. When the Agabons spurned this proposal, Riviera Homes refused to continue their
employment under the original terms and agreement.6 Taking affront, the Agabons filed a complaint
for illegal dismissal with the National Labor Relations Commission ("NLRC").

Riviera Homes adverts to a different version of events leading to the filing of the complaint for illegal
dismissal. It alleged that in the early quarter of 1999, the Agabons stopped reporting for work with
Riviera. Two separate letters dated 10 March 1999, were sent to the Agabons at the address
indicated in their personnel file. In these notices, the Agabons were directed to report for work
immediately.7 However, these notices were returned unserved with the notation "RTS Moved." Then,
in June of 1999, Virgilio Agabon informed Riviera Homes by telephone that he and Jenny Agabon
were ready to return to work for Riviera Homes, on the condition that their wages be first adjusted.
On 18 June 1999, the Agabons went to Riviera Homes, and in a meeting with management,
requested a wage increase of up to Two Hundred Eighty Pesos (P280.00) a day. When no
affirmative response was offered by Riviera Homes, the Agabons initiated the complaint before the
NLRC.8

In their Position Paper, the Agabons likewise alleged that they were required to work even on
holidays and rest days, but were never paid the legal holiday pay or the premium pay for holiday or
rest day. They also asserted that they were denied Service Incentive Leave pay, and that Virgilio
Agabon was not given his thirteenth (13th) month pay for the year 1998.9

After due deliberation, Labor Arbiter Daisy G. Cauton-Barcelona rendered a Decision dated 28
December 1999, finding the termination of the Agabons illegal, and ordering Riviera Homes to pay
backwages in the sum of Fifty Six Thousand Two Hundred Thirty One Pesos and Ninety Three
Centavos (P56,231.93) each. The Labor Arbiter likewise ordered, in lieu of reinstatement, the
payment of separation pay of one (1) month pay for every year of service from date of hiring up to 29
November 1999, as well as the payment of holiday pay, service incentive leave pay, and premium
pay for holiday and restday, plus thirteenth (13th) month differential to Virgilio Agabon.10

In so ruling, the Labor Arbiter declared that Riviera Homes was unable to satisfactorily refute the
Agabons' claim that they were no longer given work to do after 23 February 1999 and that their
rehiring was only on "pakyaw" basis. The Labor Arbiter also held that Riviera Homes failed to comply
with the notice requirement, noting that Riviera Homes well knew of the change of address of the
Agabons, considering that the identification cards it issued stated a different address from that on
the personnel file.11 The Labor Arbiter asserted the principle that in all termination cases, strict
compliance by the employer with the demands of procedural and substantive due process is a
condition sine qua non for the same to be declared valid.12

On appeal, the NLRC Second Division set aside the Labor Arbiter's Decision and ordered the
dismissal of the complaint for lack of merit.13 The NLRC held that the Agabons were not able to
refute the assertion that for the payroll period ending on 15 February 1999, Virgilio and Jenny
Agabon worked for only two and one-half (2½) and three (3) days, respectively. It disputed the
earlier finding that Riviera Homes had known of the change in address, noting that the address
indicated in the

identification cards was not the Agabons, but that of the persons who should be notified in case of
emergency concerning the employee.14 Thus, proper service of the notice was deemed to have been
accomplished. Further, the notices evinced good reason to believe that the Agabons had not been
dismissed, but had instead abandoned their jobs by refusing to report for work.

In support of its conclusion that the Agabons had abandoned their work, the NLRC also observed
that the Agabons did not seek reinstatement, but only separation pay. While the choice of relief was
premised by the Agabons on their purported strained relations with Riviera Homes, the NLRC
pointed out that such claim was amply belied by the fact that the Agabons had actually sought a
conference with Riviera Homes in June of 1999. The NLRC likewise found that the failure of the
Labor Arbiter to justify the award of extraneous money claims, such as holiday and service incentive
leave pay, confirmed that there was no proof to justify such claims.

A Petition for Certiorari was promptly filed with the Court of Appeals by the Agabons, imputing grave
abuse of discretion on the part of the NLRC in dismissing their complaint for illegal dismissal. In
a Decision15 dated 23 January 2003, the Court of Appeals affirmed the finding that the Agabons had
abandoned their employment. It noted that the two elements constituting abandonment had been
established, to wit: the failure to report for work or absence without valid justifiable reason, and; a
clear intention to sever the employer-employee relationship. The intent to sever the employer-
employee relationship was buttressed by the Agabon's choice to seek not reinstatement, but
separation pay. The Court of Appeals likewise found that the service of the notices were valid, as the
Agabons did not notify Riviera Homes of their change of address, and thus the failure to return to
work despite notice amounted to abandonment of work.

However, the Court of Appeals reversed the NLRC as regards the denial of the claims for holiday
pay, service incentive leave pay, and the balance of Virgilio Agabon's thirteenth (13th) month pay. It
ruled that the failure to adduce proof in support thereof was not fatal and that the burden of proving
that such benefits had already been paid rested on Riviera Homes.16 Given that Riviera Homes failed
to present proof of payment to the Agabons of their holiday pay and service incentive leave pay for
the years 1996, 1997 and 1998, the Court of Appeals chose to believe that such benefits had not
actually been received by the employees. It also ruled that the apparent deductions made by Riviera
Homes on the thirteenth (13th) month pay of Virgilio Agabon violated Section 10 of the Rules and
Regulations Implementing Presidential Decree No. 851.17 Accordingly, Riviera Homes was ordered
to pay the Agabons holiday for four (4) regular holidays in 1996, 1997 and 1998, as well as their
service incentive leave pay for said years, and the balance of Virgilio Agabon's thirteenth (13th)
month pay for 1998 in the amount of Two Thousand One Hundred Fifty Pesos (P2,150.00).18

In their Petition for Review, the Agabons claim that they had been illegally dismissed, reasserting
their version of events, thus: (1) that they had not been given new assignments since 23 February
1999; (2) that they were told that they would only be re-hired on a "pakyaw" basis, and; (3) that
Riviera Homes had knowingly sent the notices to their old address despite its knowledge of their
change of address as indicated in the identification cards.19 Further, the Agabons note that only one
notice was sent to each of them, in violation of the rule that the employer must furnish two written
notices before termination — the first to apprise the employee of the cause for which dismissal is
sought, and the second to notify the employee of the decision of dismissal.20 The Agabons likewise
maintain that they did not seek reinstatement owing to the strained relations between them and
Riviera Homes.

The Agabons present to this Court only one issue, i.e.: whether or not they were illegally dismissed
from their employment.21 There are several dimensions though to this issue which warrant full
consideration.

The Abandonment Dimension

Review of Factual Finding of Abandonment

As the Decision points out, abandonment is characterized by the failure to report for work or
absence without valid or justifiable reason, and a clear intention to sever the employer-employee
relationship. The question of whether or not an employee has abandoned employment is essentially
a factual issue.22 The NLRC and the Court of Appeals, both appropriate triers of fact, concluded that
the Agabons had actually abandoned their employment, thus there is little need for deep inquiry into
the correctness of this factual finding. There is no doubt that the Agabons stopped reporting for work
sometime in February of 1999. And there is no evidence to support their assertion that such absence
was due to the deliberate failure of Riviera Homes to give them work. There is also the fact, as noted
by the NLRC and the Court of Appeals, that the Agabons did not pray for reinstatement, but only for
separation

pay and money claims.23 This failure indicates their disinterest in maintaining the employer-employee
relationship and their unabated avowed intent to sever it. Their excuse that strained relations
between them and Riviera Homes rendered reinstatement no longer feasible was hardly given
credence by the NLRC and the Court of Appeals.24
The contrary conclusion arrived at by the Labor Arbiter as regards abandonment is of little bearing to
the case. All that the Labor Arbiter said on that point was that Riviera Homes was not able to refute
the Agabons' claim that they were terminated on 23 February 1999.25 The Labor Arbiter did not
explain why or how such finding was reachhy or how such finding was reachhe Agabons was more
credible than that of Riviera Homes'. Being bereft of reasoning, the conclusion deserves scant
consideration.

Compliance with Notice Requirement

At the same time, both the NLRC and the Court of Appeals failed to consider the apparent fact that
the rules governing notice of termination were not complied with by Riviera Homes. Section 2, Book
V, Rule XXIII of the Omnibus Rules Implementing the Labor Code (Implementing Rules) specifically
provides that for termination of employment based on just causes as defined in Article 282, there
must be: (1) written notice served on the employee specifying the grounds for termination and giving
employee reasonable opportunity to explain his/her side; (2) a hearing or conference wherein the
employee, with the assistance of counsel if so desired, is given opportunity to respond to the charge,
present his evidence or rebut evidence presented against him/her; and (3) written notice of
termination served on the employee indicating that upon due consideration of all the circumstances,
grounds have been established to justify termination.

At the same time, Section 2, Book V, Rule XXIII of the Implementing Rules does not require strict
compliance with the above procedure, but only that the same be "substantially observed."

Riviera Homes maintains that the letters it sent on 10 March 1999 to the Agabons sufficiently
complied with the notice rule. These identically worded letters noted that the Agabons had stopped
working without permission that they failed to return for work despite having been repeatedly told to
report to the office and resume their employment.26 The letters ended with an invitation to the
Agabons to report back to the office and return to work.27

The apparent purpose of these letters was to advise the Agabons that they were welcome to return
back to work, and not to notify them of the grounds of termination. Still, considering that only
substantial compliance with the notice requirement is required, I am prepared to say that the letters
sufficiently conform to the first notice required under the Implementing Rules. The purpose of the
first notice is to duly inform the employee that a particular transgression is being considered against
him or her, and that an opportunity is being offered for him or her to respond to the charges. The
letters served the purpose of informing the Agabons of the pending matters beclouding their
employment, and extending them the opportunity to clear the air.

Contrary to the Agabons' claim, the letter-notice was correctly sent to the employee's last known
address, in compliance with the Implementing Rules. There is no dispute that these letters were not
actually received by the Agabons, as they had apparently moved out of the address indicated
therein. Still, the letters were sent to what Riviera Homes knew to be the Agabons' last known
address, as indicated in their personnel file. The Agabons insist that Riviera Homes had known of
the change of address, offering as proof their company IDs which purportedly print out their correct
new address. Yet, as pointed out by the NLRC and the Court of Appeals, the addresses indicated in
the IDs are not the Agabons, but that of the person who is to be notified in case on emergency
involve either or both of the Agabons.

The actual violation of the notice requirement by Riviera Homes lies in its failure to serve on the
Agabons the second notice which should inform them of termination. As the Decision notes, Riviera
Homes' argument that sending the second notice was useless due to the change of address is
inutile, since the Implementing Rules plainly require that the notice of termination should be served
at the employee's last known address.

The importance of sending the notice of termination should not be trivialized. The termination letter
serves as indubitable proof of loss of employment, and its receipt compels the employee to evaluate
his or her next options. Without such notice, the employee may be left uncertain of his fate; thus, its
service is mandated by the Implementing Rules. Non-compliance with the notice rule, as evident in
this case, contravenes the Implementing Rules. But does the violation serve to invalidate the
Agabons' dismissal for just cause?

The So-Called Constitutional Law Dimension

Justices Puno and Panganiban opine that the Agabons should be reinstated as a consequence of
the violation of the notice requirement. I respectfully disagree, for the reasons expounded below.

Constitutional Considerations
Of Due Process and the Notice-Hearing
Requirement in Labor Termination Cases

Justice Puno proposes that the failure to render due notice and hearing prior to dismissal for just
cause constitutes a violation of the constitutional right to due process. This view, as acknowledged
by Justice Puno himself, runs contrary to the Court's pronouncement in Serrano v. NLRC28 that the
absence of due notice and hearing prior to dismissal, if for just cause, violates statutory due process.

The ponencia of Justice Vicente V. Mendoza in Serrano provides this cogent overview of the history
of the doctrine:

Indeed, to contend that the notice requirement in the Labor Code is an aspect of due process
is to overlook the fact that Art. 283 had its origin in Art. 302 of the Spanish Code of
Commerce of 1882 which gave either party to the employer-employee relationship the right
to terminate their relationship by giving notice to the other one month in advance. In lieu of
notice, an employee could be laid off by paying him a mesada equivalent to his salary for
one month. This provision was repealed by Art. 2270 of the Civil Code, which took effect on
August 30, 1950. But on June 12, 1954, R.A. No. 1052, otherwise known as the Termination
Pay Law, was enacted reviving the mesada. On June 21, 1957, the law was amended by
R.A. No. 1787 providing for the giving of advance notice for every year of service.29

Under Section 1 of the Termination Pay Law, an employer could dismiss an employee without just
cause by serving written notice on the employee at least one month in advance or one-half month for
every year of service of the employee, whichever was longer.30 Failure to serve such written notice
entitled the employee to compensation equivalent to his salaries or wages corresponding to the
required period of notice from the date of termination of his employment.

However, there was no similar written notice requirement under the Termination Pay Law if the
dismissal of the employee was for just cause. The Court, speaking through Justice JBL Reyes, ruled
in Phil. Refining Co. v. Garcia:31

[Republic] Act 1052, as amended by Republic Act 1787, impliedly recognizes the right of the
employer to dismiss his employees (hired without definite period) whether for just case, as
therein defined or enumerated, or without it. If there be just cause, the employer is not
required to serve any notice of discharge nor to disburse termination pay to the
employee. xxx32
Clearly, the Court, prior to the enactment of the Labor Code, was ill-receptive to the notion that
termination for just cause without notice or hearing violated the constitutional right to due process.
Nonetheless, the Court recognized an award of damages as the appropriate remedy. In Galsim v.
PNB,33 the Court held:

Of course, the employer's prerogative to dismiss employees hired without a definite period
may be with or without cause. But if the manner in which such right is exercised is abusive,
the employer stands to answer to the dismissed employee for damages.34

The Termination Pay Law was among the repealed laws with the enactment of the Labor Code in
1974. Significantly, the Labor Code, in its inception, did not require notice or hearing before an
employer could terminate an employee for just cause. As Justice Mendoza explained:

Where the termination of employment was for a just cause, no notice was required to be
given to the employee. It was only on September 4, 1981 that notice was required to be
given even where the dismissal or termination of an employee was for cause. This was made
in the rules issued by the then Minister of Labor and Employment to implement B.P. Blg. 130
which amended the Labor Code. And it was still much later when the notice requirement was
embodied in the law with the amendment of Art. 277(b) by R.A. No. 6715 on March 2,
1989.35

It cannot be denied though that the thinking that absence of notice or hearing prior to termination
constituted a constitutional violation has gained a jurisprudential foothold with the Court. Justice
Puno, in his Dissenting Opinion, cites several cases in support of this theory, beginning
with Batangas Laguna Tayabas Bus Co. v. Court of Appeals36 wherein we held that "the failure of
petitioner to give the private respondent the benefit of a hearing before he was dismissed constitutes
an infringement on his constitutional right to due process of law.37

Still, this theory has been refuted, pellucidly and effectively to my mind, by Justice Mendoza's
disquisition in Serrano, thus:

xxx There are three reasons why, on the other hand, violation by the employer of the notice
requirement cannot be considered a denial of due process resulting in the nullity of the
employee's dismissal or layoff.

The first is that the Due Process Clause of the Constitution is a limitation on governmental
powers. It does not apply to the exercise of private power, such as the termination of
employment under the Labor Code. This is plain from the text of Art. III, §1 of the
Constitution, viz.: "No person shall be deprived of life, liberty, or property without due
process of law. . . ." The reason is simple: Only the State has authority to take the life, liberty,
or property of the individual. The purpose of the Due Process Clause is to ensure that the
exercise of this power is consistent with what are considered civilized methods.

The second reason is that notice and hearing are required under the Due Process Clause
before the power of organized society are brought to bear upon the individual. This is
obviously not the case of termination of employment under Art. 283. Here the employee is
not faced with an aspect of the adversary system. The purpose for requiring a 30-day written
notice before an employee is laid off is not to afford him an opportunity to be heard on any
charge against him, for there is none. The purpose rather is to give him time to prepare for
the eventual loss of his job and the DOLE an opportunity to determine whether economic
causes do exist justifying the termination of his employment.
 xxx

The third reason why the notice requirement under Art. 283 can not be considered a
requirement of the Due Process Clause is that the employer cannot really be expected to be
entirely an impartial judge of his own cause. This is also the case in termination of
employment for a just cause under Art. 282 (i.e., serious misconduct or willful disobedience
by the employee of the lawful orders of the employer, gross and habitual neglect of duties,
fraud or willful breach of trust of the employer, commission of crime against the employer or
the latter's immediate family or duly authorized representatives, or other analogous cases).38

The Court in the landmark case of People v. Marti39 clarified the proper dimensions of the Bill of
Rights.

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; Italics supplied)40

I do not doubt that requiring notice and hearing prior to termination for just cause is an admirable
sentiment borne out of basic equity and fairness. Still, it is not a constitutional requirement that can
impose itself on the relations of private persons and entities. Simply put, the Bill of Rights affords
protection against possible State oppression against its citizens, but not against an unjust or
repressive conduct by a private party towards another.

Justice Puno characterizes the notion that constitutional due process limits government action alone
as "passé," and adverts to nouvelle vague theories which assert that private conduct may be
restrained by constitutional due process. His dissent alludes to the American experience making
references to the post-Civil War/pre-World War II era when the US Supreme Court seemed overly
solicitous to the rights of big business over those of the workers.

Theories, no matter how entrancing, remain theoretical unless adopted by legislation, or more
controversially, by judicial opinion. There were a few decisions of the US Supreme Court that,
ostensibly, imposed on private persons the values of the constitutional guarantees. However, in
deciding the cases, the American High Court found it necessary to link the actors to adequate
elements of the "State" since the Fourteenth Amendment plainly begins with the words "No State
shall…"41

More crucially to the American experience, it had become necessary to pass legislation in order to
compel private persons to observe constitutional values. While the equal protection clause was
deemed sufficient by the Warren Court to bar racial segregation in public facilities, it necessitated
enactment of the Civil Rights Acts of 1964 to prohibit segregation as enforced by private persons
within their property. In this jurisdiction, I have trust in the statutory regime that governs the
correction of private wrongs. There are thousands of statutes, some penal or regulatory in nature,
that are the source of actionable claims against private persons. There is even no stopping the
State, through the legislative cauldron, from compelling private individuals, under pain of legal
sanction, into observing the norms ordained in the Bill of Rights.

Justice Panganiban's Separate Opinion asserts that corporate behemoths and even individuals may
now be sources of abuses and threats to human rights and liberties.42 The concern is not unfounded,
but appropriate remedies exist within our statutes, and so resort to the constitutional trump card is
not necessary. Even if we were to engage the premise, the proper juristic exercise should be to
examine whether an employer has taken the attributes of the State so that it could be compelled by
the Constitution to observe the proscriptions of the Bill of Rights. But the strained analogy simply
does not square since the attributes of an employer are starkly incongruous with those of the State.
Employers plainly do not possess the awesome powers and the tremendous resources which the
State has at its command.

The differences between the State and employers are not merely literal, but extend to their very
essences. Unlike the State, the raison d'etre of employers in business is to accumulate profits.
Perhaps the State and the employer are similarly capacitated to inflict injury or discomfort on
persons under their control, but the same power is also possessed by a school principal, hospital
administrator, or a religious leader, among many others. Indeed, the scope and reach of authority of
an employer pales in comparison with that of the State. There is no basis to conclude that an
employer, or even the employer class, may be deemed a de facto state and on that premise,
compelled to observe the Bill of Rights. There is simply no nexus in their functions, distaff as they
are, that renders it necessary to accord the same jurisprudential treatment.

It may be so, as alluded in the dissent of Justice Puno, that a conservative court system overly
solicitous to the concerns of business may consciously gut away at rights or privileges owing to the
labor sector. This certainly happened before in the United States in the early part of the twentieth
century, when the progressive labor legislation such as that enacted during President Roosevelt's
New Deal regime — most of them addressing problems of labor — were struck down by an arch-
conservative Court.43 The preferred rationale then was to enshrine within the constitutional order
business prerogatives, rendering them superior to the express legislative intent. Curiously, following
its judicial philosophy at the time the U. S. Supreme Court made due process guarantee towards
employers prevail over the police power to defeat the cause of labor.44

Of course, this Court should not be insensate to the means and methods by which the entrenched
powerful class may maneuver the socio-political system to ensure self-preservation. However, the
remedy to rightward judicial bias is not leftward judicial bias. The more proper judicial attitude is to
give due respect to legislative prerogatives, regardless of the ideological sauce they are dipped in.

While the Bill of Rights maintains a position of primacy in the constitutional hierarchy,45 it has scope
and limitations that must be respected and asserted by the Court, even though they may at times
serve somewhat bitter ends. The dissenting opinions are palpably distressed at the effect of
the Decision, which will undoubtedly provoke those reflexively sympathetic to the labor class. But
haphazard legal theory cannot be used to justify the obverse result. The adoption of the dissenting
views would give rise to all sorts of absurd constitutional claims. An excommunicated Catholic might
demand his/her reinstatement into the good graces of the Church and into communion on the
ground that excommunication was violative of the constitutional right to due process. A celebrity
contracted to endorse Pepsi Cola might sue in court to void a stipulation that prevents him/her from
singing the praises of Coca Cola once in a while, on the ground that such stipulation violates the
constitutional right to free speech. An employee might sue to prevent the employer from reading
outgoing e-mail sent through the company server using the company e-mail address, on the ground
that the constitutional right to privacy of communication would be breached.

The above concerns do not in anyway serve to trivialize the interests of labor. But we must avoid
overarching declarations in order to justify an end result beneficial to labor. I dread the doctrinal
acceptance of the notion that the Bill of Rights, on its own, affords protection and sanctuary not just
from the acts of State but also from the conduct of private persons. Natural and juridical persons
would hesitate to interact for fear that a misstep could lead to their being charged in court as a
constitutional violator. Private institutions that thrive on their exclusivity, such as churches or cliquish
groups, could be forced to renege on their traditional tenets, including vows of secrecy and the like, if
deemed by the Court as inconsistent with the Bill of Rights. Indeed, that fundamental right of all
private persons to be let alone would be forever diminished because of a questionable notion that
contravenes with centuries of political thought.

It is not difficult to be enraptured by novel legal ideas. Their characterization is susceptible to the
same marketing traps that hook consumers to new products. With the help of unique wrapping, a
catchy label, and testimonials from professed experts from exotic lands, a malodorous idea may gain
wide acceptance, even among those self-possessed with their own heightened senses of
perception. Yet before we join the mad rush in order to proclaim a theory as "brilliant," a rigorous test
must first be employed to determine whether it complements or contradicts our own system of laws
and juristic thought. Without such analysis, we run the risk of abnegating the doctrines we have
fostered for decades and the protections they may have implanted into our way of life.

Should the Court adopt the view that the Bill of Rights may be invoked to invalidate actions by
private entities against private individuals, the Court would open the floodgates to, and the docket
would be swamped with, litigations of the scurrilous sort. Just as patriotism is the last refuge of
scoundrels, the broad constitutional claim is the final resort of the desperate litigant.

Constitutional Protection of Labor

The provisions of the 1987 Constitution affirm the primacy of labor and advocate a multi-faceted
state policy that affords, among others, full protection to labor. Section 18, Article II thereof provides:

The State affirms labor as a primary social economic force. It shall protect the rights of
workers and promote their welfare.

Further, Section 3, Article XIII states:

The State shall afford full protection to labor, local and overseas, organized and
unorganized, and promote full employment and equal employment opportunities for all.

It shall guarantee the rights of all workers to self-organization, collective bargaining and
negotiations, and peaceful concerted activities, including the right to strike in accordance
with law. They shall be entitled to security to tenure, humane conditions of work, and a living
wage. They shall also participate in policy and decision-making processes affecting their
rights and benefits as may be provided by law.

The State shall promote the principle of shared responsibility between workers and
employers and the preferential use of voluntary modes in settling disputes, including
conciliation, and shall enforce their mutual compliance therewith to foster industrial peace.
 The State shall regulate the relations between workers and employers, recognizing the right
of labor to its just share in the fruits of production and the right of enterprises to reasonable
returns on investments, and to expansion and growth.

The constitutional enshrinement of the guarantee of full protection of labor is not novel to the 1987
Constitution. Section 6, Article XIV of the 1935 Constitution reads:

The State shall afford protection to labor, especially to working women, and minors, and shall
regulate the relations between the landowner and tenant, and between labor and capital in
industry and in agriculture. The State may provide for compulsory arbitration.

Similarly, among the principles and state policies declared in the 1973 Constitution, is that provided
in Section 9, Article II thereof:

The State shall afford full protection to labor, promote full employment and equality in
employment, ensure equal work opportunities regardless of sex, race or creed, and regulate
the relations between workers and employers. The State shall assure the rights of workers to
self-organization, collective bargaining, security of tenure, and just and humane conditions of
work. The State may provide for compulsory arbitration.

On the other hand, prior to the 1973 Constitution, the right to security of tenure could only be found
in legislative enactments and their respective implementing rules and regulations. It was only in the
1973 Constitution that security of tenure was elevated as a constitutional right. The development of
the concept of security of tenure as a constitutionally recognized right was discussed by this Court
in BPI Credit Corporation v. NLRC,46 to wit:

The enthronement of the worker's right to security or tenure in our fundamental law was not
achieved overnight. For all its liberality towards labor, our 1935 Constitution did not elevate
the right as a constitutional right. For a long time, the worker's security of tenure had only the
protective mantle of statutes and their interpretative rules and regulations. It was as
uncertain protection that sometimes yielded to the political permutations of the times. It took
labor nearly four decades of sweat and tears to persuade our people thru their leaders, to
exalt the worker's right to security of tenure as a sacrosanct constitutional right. It was Article
II, section 2 [9] of our 1973 Constitution that declared as a policy that the State shall assure
the right of worker's to security tenure. The 1987 Constitution is even more solicitous of the
welfare of labor. Section 3 of its Article XIII mandates that the State shall afford full protection
to labor and declares that all workers shall be entitled to security of tenure. Among the
enunciated State policies are the

promotion of social justice and a just and dynamic social order. In contrast, the prerogative of
management to dismiss a worker, as an aspect of property right, has never been endowed
with a constitutional status.

The unequivocal constitutional declaration that all workers shall be entitled to security of
tenure spurred our lawmakers to strengthen the protective walls around this hard earned
right. The right was protected from undue infringement both by our substantive and
procedural laws. Thus, the causes for dismissing employees were more defined and
restricted; on the other hand, the procedure of termination was also more clearly delineated.
These substantive and procedural laws must be strictly complied with before a worker can be
dismissed from his employment.47
It is quite apparent that the constitutional protection of labor was entrenched more than eight
decades ago, yet such did not prevent this Court in the past from affirming dismissals for just cause
without valid notice. Nor was there any pretense made that this constitutional maxim afforded a
laborer a positive right against dismissal for just cause on the ground of lack of valid prior notice. As
demonstrated earlier, it was only after the enactment of the Labor Code that the doctrine relied upon
by the dissenting opinions became en vogue. This point highlights my position that the violation of
the notice requirement has statutory moorings, not constitutional.

It should be also noted that the 1987 Constitution also recognizes the principle of shared
responsibility between workers and employers, and the right of enterprise to reasonable returns,
expansion, and growth. Whatever perceived imbalance there might have been under previous
incarnations of the provision have been obviated by Section 3, Article XIII.

In the case of Manila Prince Hotel v. GSIS,48 we affirmed the presumption that all constitutional
provisions are self-executing. We reasoned that to declare otherwise would result in the pernicious
situation wherein by mere inaction and disregard by the legislature, constitutional mandates would
be rendered ineffectual. Thus, we held:

As against constitutions of the past, modern constitutions have been generally ed upon a
different principle and have often become in effect extensive codes of laws intended to
operate directly upon the people in a manner similar to that of statutory enactments, and the
function of constitutional conventions has evolved into one more like that of a legislative
body. Hence, unless it is expressly provided that a legislative act is necessary to enforce a
constitutional mandate, the presumption now is that all provisions of the constitution are self-
executing. If the constitutional provisions are treated as requiring legislation instead of self-
executing, the legislature would have the power to ignore and practically nullify the mandate
of the fundamental law. This can be cataclysmic. That is why the prevailing view is, as it has
always been, that —

. . . in case of doubt, the Constitution should be considered self-executing rather than

non-self-executing. . . . Unless the contrary is clearly intended, the provisions of the
Constitution should be considered self-executing, as a contrary rule would give the
legislature discretion to determine when, or whether, they shall be effective. These
provisions would be subordinated to the will of the lawmaking body, which could
make them entirely meaningless by simply refusing to pass the needed implementing
statute.49

In further discussing self-executing provisions, this Court stated that:

In self-executing constitutional provisions, the legislature may still enact legislation to

facilitate the exercise of powers directly granted by the constitution, further the operation of
such a provision, prescribe a practice to be used for its enforcement, provide a convenient
remedy for the protection of the rights secured or the determination thereof, or place
reasonable safeguards around the exercise of the right. The mere fact that legislation may
supplement and add to or prescribe a penalty for the violation of a self-executing
constitutional provision does not render such a provision ineffective in the absence of such
legislation. The omission from a constitution of any express provision for a remedy for
enforcing a right or liability is not necessarily an indication that it was not intended to be self-
executing. The rule is that a self-executing provision of the constitution does not necessarily
exhaust legislative power on the subject, but any legislation must be in harmony with the
constitution, further the exercise of constitutional right and make it more available.
 Subsequent legislation however does not necessarily mean that the subject constitutional
provision is not, by itself, fully enforceable.50

Thus, the constitutional mandates of protection to labor and security of tenure may be deemed as
self-executing in the sense that these are automatically acknowledged and observed without need
for any enabling legislation. However, to declare that the constitutional provisions are enough to
guarantee the full exercise of the rights embodied therein, and the realization of ideals therein
expressed, would be impractical, if not unrealistic. The espousal of such view presents the
dangerous tendency of being overbroad and exaggerated. The guarantees of "full protection to
labor" and "security of tenure", when examined in isolation, are facially unqualified, and the broadest
interpretation possible suggests a blanket shield in favor of labor against any form of removal
regardless of circumstance. This interpretation implies an unimpeachable right to continued
employment-a utopian notion, doubtless-but still hardly within the contemplation of the framers.
Subsequent legislation is still needed to define the parameters of these guaranteed rights to ensure
the protection and promotion, not only the rights of the labor sector, but of the employers' as well.
Without specific and pertinent legislation, judicial bodies will be at a loss, formulating their own
conclusion to approximate at least the aims of the Constitution.

Ultimately, therefore, Section 3 of Article XIII cannot, on its own, be a source of a positive
enforceable right to stave off the dismissal of an employee for just cause owing to the failure to serve
proper notice or hearing. As manifested by several framers of the 1987 Constitution, the provisions
on social justice require legislative enactments for their enforceability. This is reflected in the record
of debates on the social justice provisions of the Constitution:

MS. [FELICITAS S.] AQUINO: We appreciate the concern of the Commissioner. But this
Committee [on Social Justice] has actually become the forum already of a lot of specific
grievances and specific demands, such that understandably, we may have been, at
one time or another, dangerously treading into the functions of legislation. Our only
plea to the Commission is to focus our perspective on the matter of social justice and its
rightful place in the Constitution. What we envision here is a mandate specific enough
that would give impetus for statutory implementation. We would caution ourselves in
terms of the judicious exercise of self-censorship against treading into the functions
of legislation. (emphasis supplied)51

xxx

[FLORENZ D.] REGALADO: I notice that the 1935 Constitution had only one section on
social justice; the same is true with the 1973 Constitution. But they seem to have stood us in
good stead; and I am a little surprised why, despite that attempt at self-censorship,
there are certain provisions here which are properly for legislation.52

xxx

BISHOP [TEODORO S.] BACANI: [I] think the distinction that was given during the
presentation of the provisions on the Bill of Rights by Commissioner Bernas is very apropos
here. He spoke of self-executing rights which belong properly to the Bill of Rights, and
then he spoke of a new body of rights which are more of claims and that these have
come about largely through the works of social philosophers and then the teaching of
the Popes. They focus on the common good and hence, it is not as easy to pinpoint
precisely these rights nor the situs of the rights. And yet, they exist in relation to the
common good.53
 xxx

MS. [MINDA LUZ M.] QUESADA: I think the nitty-gritty of this kind of collaboration will
be left to legislation but the important thing now is the conservation, utilization or
maximization of the very limited resources. xxx

[RICARDO J.] ROMULO: The other problem is that, by and large, government services are
inefficient. So, this is a problem all by itself. On Section 19, where the report says that
people's organizations as a principal means of empowering the people to pursue and protect
through peaceful means…, I do not suppose that the Committee would like to either
preempt or exclude the legislature, because the concept of a representative and
democratic system really is that the legislature is normally the principal means.

[EDMUNDO G.] GARCIA: That is correct. In fact, people cannot even dream of
influencing the composition or the membership of the legislature, if they do not get
organized. It is, in fact, a recognition of the principle that unless a citizenry is organized and
mobilized to pursue its ends peacefully, then it cannot really participate effectively.54

There is no pretense on the part of the framers that the provisions on Social Justice, particularly
Section 3 of Article XIII, are self-executory. Still, considering the rule that provisions should be
deemed self-executing if enforceable without further legislative action, an examination of Section 3
of Article XIII is warranted to determine whether it is complete in itself as a definitive law, or if it
needs future legislation for completion and enforcement.55 Particularly, we should inquire whether or
not the provision voids the dismissal of a laborer for just cause if no valid notice or hearing is
attendant.

Constitutional Commissioner Fr. Joaquin G. Bernas makes a significant comment on Section 3,

Article XIII of the 1987 Constitution:

The [cluster] of rights guaranteed in the second paragraph are the right "to security of tenure,
humane conditions of work, and a living wage." Again, although these have been set apart
by a period (.) from the next sentence and are therefore not modified by the final phrase "as
may be provided by law," it is not the intention to place these beyond the reach of valid
laws. xxx (emphasis supplied)56

At present, the Labor Code is the primary mechanism to carry out the Constitution's directives. This
is clear from Article 357 under Chapter 1 thereof which essentially restates the policy on the
protection of labor as worded in the 1973 Constitution, which was in force at the time of enactment of
the Labor Code. It crystallizes the fundamental law's policies on labor, defines the parameters of the
rights granted to labor such as the right to security of tenure, and prescribes the standards for the
enforcement of such rights in concrete terms. While not infallible, the measures provided therein
tend to ensure the achievement of the constitutional aims.

The necessity for laws concretizing the constitutional principles on the protection of labor is evident
in the reliance placed upon such laws by the Court in resolving the issue of the validity of a worker's
dismissal. In cases where that was the issue confronting the Court, it consistently recognized the
constitutional right to security of tenure and employed the standards laid down by prevailing laws in
determining whether such right was violated.58 The Court's reference to laws other than the
Constitution in resolving the issue of dismissal is an implicit acknowledgment that the right to
security of tenure, while recognized in the Constitution, cannot be implemented uniformly absent a
law prescribing concrete standards for its enforcement.
As discussed earlier, the validity of an employee's dismissal in previous cases was examined by the
Court in accordance with the standards laid down by Congress in the Termination Pay Law, and
subsequently, the Labor Code and the amendments thereto. At present, the validity of an
employee's dismissal is weighed against the standards laid down in Article 279, as well as Article
282 in relation to Article 277(b) of the Labor Code, for a dismissal for just cause, and Article 283 for
a dismissal for an authorized cause.

The Effect of Statutory Violation

Of Notice and Hearing

There is no doubt that the dismissal of an employee even for just cause, without prior notice or
hearing, violates the Labor Code. However, does such violation necessarily void the dismissal?

Before I proceed with my discussion on dismissals for just causes, a brief comment regarding
dismissals for authorized cause under Article 283 of the Labor Code. While the justiciable question
in Serrano pertained to a dismissal for unauthorized cause, the ruling therein was crafted as
definitive to dismissals for just cause. Happily, the Decision today does not adopt the same unwise
tack. It should be recognized that dismissals for just cause and dismissals for authorized cause are
governed by different provisions, entail divergent requisites, and animated by distinct rationales. The
language of Article 283 expressly effects the termination for authorized cause to the service of
written notice on the workers and the Ministry of Labor at least one (1) month before the intended
date of termination. This constitutes an eminent difference than dismissals for just cause, wherein
the causal relation between the notice and the dismissal is not expressly stipulated. The
circumstances distinguishing just and authorized causes are too markedly different to be subjected
to the same rules and reasoning in interpretation.

Since the present petition is limited to a question arising from a dismissal for just cause, there is no
reason for making any pronouncement regarding authorized causes. Such declaration would be
merely obiter, since they are neither the law of the case nor dispositive of the present petition. When
the question becomes justiciable before this Court, we will be confronted with an appropriate factual
milieu on which we can render a more judicious disposition of this admittedly important question.

B. Dismissal for Just Cause

There is no express provision in the Labor Code that voids a dismissal for just cause on the ground
that there was no notice or hearing. Under Section 279, the employer is precluded from dismissing
an employee except for a just cause as provided in Section 282, or an authorized cause under
Sections 283 and 284. Based on reading Section 279 alone, the existence of just cause by itself is
sufficient to validate the termination.

Just cause is defined by Article 282, which unlike Article 283, does not condition the termination on
the service of written notices. Still, the dissenting opinions propound that even if there is just cause,
a termination may be invalidated due to the absence of notice or hearing. This view is anchored
mainly on constitutional moorings, the basis of which I had argued against earlier. For determination
now is whether there is statutory basis under the Labor Code to void a dismissal for just cause due
to the absence of notice or hearing.

As pointed out by Justice Mendoza in Serrano, it was only in 1989 that the Labor Code was
amended to enshrine into statute the twin requirements of notice and hearing.59 Such requirements
are found in Article 277 of the Labor Code, under the heading "Miscellaneous Provisions." Prior to
the amendment, the notice-hearing requirement was found under the implementing rules issued by
the then Minister of Labor in 1981. The present-day implementing rules likewise mandate that the
standards of due process, including the requirement of written notice and hearing, "be substantially
observed."60

Indubitably, the failure to substantially comply with the standards of due process, including the notice
and hearing requirement, may give rise to an actionable claim against the employer. Under Article
288, penalties may arise from violations of any provision of the Labor Code. The Secretary of Labor
likewise enjoys broad powers to inquire into existing relations between employers and employees.
Systematic violations by management of the statutory right to due process would fall under the broad
grant of power to the Secretary of Labor to investigate under Article 273.

However, the remedy of reinstatement despite termination for just cause is simply not authorized by
the Labor Code. Neither the Labor Code nor its implementing rules states that a termination for just
cause is voided because the requirement of notice and hearing was not observed. This is not simply
an inadvertent semantic failure, but a conscious effort to protect the prerogatives of the employer to
dismiss an employee for just cause. Notably, despite the several pronouncements by this Court in
the past equating the notice-hearing requirement in labor cases to a constitutional maxim, neither
the legislature nor the executive has adopted the same tack, even gutting the protection to provide
that substantial compliance with due process suffices.

The Labor Code significantly eroded management prerogatives in the hiring and firing of employees.
Whereas employees could be dismissed even without just cause under the Termination Pay Law61,
the Labor Code affords workers broad security of tenure. Still, the law recognizes the right of the
employer to terminate for just cause. The just causes enumerated under the Labor Code ¾ serious
misconduct or willful disobedience, gross and habitual neglect, fraud or willful breach of trust,
commission of a crime by the employee against the employer, and other analogous causes ¾ are
characterized by the harmful behavior of an employee against the business or the person of the
employer.

These just causes for termination are not negated by the absence of notice or hearing. An employee
who tries to kill the employer cannot be magically absolved of trespasses just because the employer
forgot to serve due notice. Or a less extreme example, the gross and habitual neglect of an
employee will not be improved upon just because the employer failed to conduct a hearing prior to
termination.

In fact, the practical purpose of requiring notice and hearing is to afford the employee the opportunity
to dispute the contention that there was just cause in the dismissal. Yet it must be understood – if a
dismissed employee is deprived of the right to notice and hearing, and thus denied the
opportunity to present countervailing evidence that disputes the finding of just cause,
reinstatement will be valid not because the notice and hearing requirement was not observed,
but because there was no just cause in the dismissal. The opportunity to dispute the finding of
the just cause is readily available before the Labor Arbiter, and the subsequent levels of appellate
review. Again, as held in Serrano:

Even in cases of dismissal under Art. 282, the purpose for the requirement of notice and hearing is
not to comply with the Due Process Clause of the Constitution. The time for notice and hearing is at
the trial stage. Then that is the time we speak of notice and hearing as the essence of procedural
due process. Thus, compliance by the employer with the notice requirement before he dismisses an
employee does not foreclose the right of the latter to question the legality of his dismissal. As Art.
277(b) provides, "Any decision taken by the employer shall be without prejudice to the right of the
worker to contest the validity or legality of his dismissal by filing a complaint with the regional branch
of the National Labor Relations Commission.62
The Labor Code presents no textually demonstrable commitment to invalidate a dismissal for just
cause due to the absence of notice or hearing. This is not surprising, as such remedy will not restore
the employer or employee into equity. Absent a showing of integral causation, the mutual infliction of
wrongs does not negate either injury, but instead enforces two independent rights of relief.

The Damages' Dimensions

Award for Damages Must Have Statutory Basis

The Court has grappled with the problem of what should be the proper remedial relief of an
employee dismissed with just cause, but not afforded either notice or hearing. In a long line of cases,
beginning with Wenphil Corp. v. NLRC63 and up until Serrano in 2000, the Court had deemed an
indemnification award as sufficient to answer for the violation by the employer against the employee.
However, the doctrine was modified in Serrano.

I disagree with Serrano insofar as it held that employees terminated for just cause are to be paid
backwages from the time employment was terminated "until it is determined that the termination is
for just cause because the failure to hear him before he is dismissed renders the termination of his
employment without legal effect."64 Article 279 of the Labor Code clearly authorizes the payment of
backwages only if an employee is unjustly dismissed. A dismissal for just cause is obviously
antithetical to an unjust dismissal. An award for backwages is not clearly warranted by the law.

The Impropriety of Award for Separation Pay

The formula of one month's pay for every year served does have statutory basis. It is found though
in the Labor Code though, not the Civil Code. Even then, such computation is made for separation
pay under the Labor Code. But separation pay is not an appropriate as a remedy in this case, or in
any case wherein an employee is terminated for just cause. As Justice Vitug noted in his separate
opinion in Serrano, an employee whose employment is terminated for a just cause is not entitled to
the payment of separation benefits.65 Separation pay is traditionally a monetary award paid as an
alternative to reinstatement which can no longer be effected in view of the long passage of time or
because of the realities of the situation.66 However, under Section 7, Rule 1, Book VI of the Omnibus
Rules Implementing the Labor Code, "[t]he separation from work of an employee for a just cause
does not entitle him to the termination pay provided in the Code."67 Neither does the Labor Code
itself provide instances wherein separation pay is warranted for dismissals with just cause.
Separation pay is warranted only for dismissals for authorized causes, as enumerated in Article 283
and 284 of the Labor Code.

The Impropriety of Equity Awards

Admittedly, the Court has in the past authorized the award of separation pay for duly terminated
employees as a measure of social justice, provided that the employee is not guilty of serious
misconduct reflecting on moral character.68 This doctrine is inapplicable in this case, as the Agabons
are guilty of abandonment, which is the deliberate and unjustified refusal of an employee to resume
his employment. Abandonment is tantamount to serious misconduct, as it constitutes a willful breach
of the employer-employee relationship without cause.

The award of separation pay as a measure of social justice has no statutory basis, but clearly
emanates from the Court's so-called "equity jurisdiction." The Court's equity jurisdiction as a basis for
award, no matter what form it may take, is likewise unwarranted in this case. Easy resort to equity
should be avoided, as it should yield to positive rules which pre-empt and prevail over such
persuasions.69 Abstract as the concept is, it does not admit to definite and objective standards.
I consider the pronouncement regarding the proper monetary awards in such cases as Wenphil
Corp. v. NLRC,70 Reta,71 and to a degree, even Serrano as premised in part on equity. This decision
is premised in part due to the absence of cited statutory basis for these awards. In these cases, the
Court deemed an indemnity award proper without exactly saying where in statute could such award
be derived at. Perhaps, equity or social justice can be invoked as basis for the award. However, this
sort of arbitrariness, indeterminacy and judicial usurpation of legislative prerogatives is precisely the
source of my discontent. Social justice should be the aspiration of all that we do, yet I think it the
more mature attitude to consider that it ebbs and flows within our statutes, rather than view it as an
independent source of funding.

Article 288 of the Labor Code as a Source of Liability

Another putative source of liability for failure to render the notice requirement is Article 288 of the
Labor Code, which states:

Article 288 states:

Penalties. — Except as otherwise provided in this Code, or unless the acts complained of
hinges on a question of interpretation or implementation of ambiguous provisions of an
existing collective bargaining agreement, any violation of the provisions of this Code
declared to be unlawful or penal in nature shall be punished with a fine of not less than One
Thousand Pesos (P1,000.00) nor more than Ten Thousand Pesos (P10,000.00), or
imprisonment of not less than three months nor more than three years, or both such fine and
imprisonment at the discretion of the court.

It is apparent from the provision that the penalty arises due to contraventions of the provisions of the
Labor Code. It is also clear that the provision comes into play regardless of who the violator may be.
Either the employer or the employee may be penalized, or perhaps even officials tasked with
implementing the Labor Code.

However, it is apparent that Article 288 is a penal provision; hence, the prescription for penalties
such as fine and imprisonment. The Article is also explicit that the imposition of fine or imprisonment
is at the "discretion of the court." Thus, the proceedings under the provision is penal in character.
The criminal case has to be instituted before the proper courts, and the Labor Code violation subject
thereof duly proven in an adversarial proceeding. Hence, Article 288 cannot apply in this case and
serve as basis to impose a penalty on Riviera Homes.

I also maintain that under Article 288 the penalty should be paid to the State, and not to the person
or persons who may have suffered injury as a result of the violation. A penalty is a sum of money
which the law requires to be paid by way of punishment for doing some act which is prohibited or for
not doing some act which is required to be done.72 A penalty should be distinguished from damages
which is the pecuniary compensation or indemnity to a person who has suffered loss, detriment, or
injury, whether to his person, property, or rights, on account of the unlawful act or omission or
negligence of another. Article 288 clearly serves as a punitive fine, rather than a compensatory
measure, since the provision penalizes an act that violates the Labor Code even if such act does not
cause actual injury to any private person.

Independent of the employee's interests protected by the Labor Code is the interest of the State in
seeing to it that its regulatory laws are complied with. Article 288 is intended to satiate the latter
interest. Nothing in the language of Article 288 indicates an intention to compensate or remunerate a
private person for injury he may have sustained.
It should be noted though that in Serrano, the Court observed that since the promulgation of Wenphil
Corp. v. NLRC73 in 1989, "fines imposed for violations of the notice requirement have varied
from P1,000.00 to P2,000.00 to P5,000.00 to P10,000.00."74 Interestingly, this range is the same
range of the penalties imposed by Article 288. These "fines" adverted to in Serrano were paid to the
dismissed employee. The use of the term "fines," as well as the terminology employed a few other
cases,75 may have left an erroneous impression that the award implemented beginning
with Wenphil was based on Article 288 of the Labor Code. Yet, an examination of Wenphil reveals
that what the Court actually awarded to the employee was an "indemnity", dependent on the facts of
each case and the gravity of the omission committed by the employer. There is no mention
in Wenphil of Article 288 of the Labor Code, or indeed, of any statutory basis for the award.

The Proper Basis: Employer's Liability under the Civil Code

As earlier stated, Wenphil allowed the payment of indemnity to the employee dismissed for just
cause is dependent on the facts of each case and the gravity of the omission committed by the
employer. However, I considered Wenphil flawed insofar as it is silent as to the statutory basis for
the indemnity award. This failure, to my mind, renders it unwise for to reinstate the Wenphil rule, and
foster the impression that it is the judicial business to invent awards for damages without clear
statutory basis.

The proper legal basis for holding the employer liable for monetary damages to the employee
dismissed for just cause is the Civil Code. The award of damages should be measured
against the loss or injury suffered by the employee by reason of the employer's violation or,
in case of nominal damages, the right vindicated by the award. This is the proper paradigm
authorized by our law, and designed to obtain the fairest possible relief.

Under Section 217(4) of the Labor Code, the Labor Arbiter has jurisdiction over claims for actual,
moral, exemplary and other forms of damages arising from the employer-employee relations. It is
thus the duty of Labor Arbiters to adjudicate claims for damages, and they should disabuse
themselves of any inhibitions if it does appear that an award for damages is warranted. As triers of
facts in a specialized field, they should attune themselves to the particular conditions or problems
attendant to employer-employee relationships, and thus be in the best possible position as to the
nature and amount of damages that may be warranted in this case.

The damages referred under Section 217(4) of the Labor Code are those available under the Civil
Code. It is but proper that the Civil Code serve as the basis for the indemnity, it being the law that
regulates the private relations of the members of civil society, determining their respective rights and
obligations with reference to persons, things, and civil acts.76 No matter how impressed with the
public interest the relationship between a private employer and employee is, it still is ultimately a
relationship between private individuals. Notably, even though the Labor Code could very well have
provided set rules for damages arising from the employer-employee relationship, referral was
instead made to the concept of damages as enumerated and defined under the Civil Code.

Given the long controversy that has dogged this present issue regarding dismissals for just cause, it
is wise to lay down standards that would guide the proper award of damages under the Civil Code in
cases wherein the employer failed to comply with statutory due process in dismissals for just cause.

First. I believe that it can be maintained as a general rule, that failure to comply with the statutory
requirement of notice automatically gives rise to nominal damages, at the very least, even if the
dismissal was sustained for just cause.
Nominal damages are adjudicated in order that a right of a plaintiff which has been violated or
invaded by another may be vindicated or recognized without having to indemnify the plaintiff for any
loss suffered by him.77 Nominal damages may likewise be awarded in every obligation arising from
law, contracts, quasi-contracts, acts or omissions punished by law, and quasi-delicts, or where any
property right has been invaded.

Clearly, the bare act of failing to observe the notice requirement gives rise to nominal damages
assessable against the employer and due the employee. The Labor Code indubitably entitles the
employee to notice even if dismissal is for just cause, even if there is no apparent intent to void such
dismissals deficiently implemented. It has also been held that one's employment, profession, trade,
or calling is a "property right" and the wrongful interference therewith gives rise to an actionable
wrong.78

In Better Buildings, Inc. v. NLRC,79 the Court ruled that the while the termination therein was for just
and valid cause, the manner of termination was done in complete disregard of the necessary
procedural safeguards.80 The Court found nominal damages as the proper form of award, as it was
purposed to vindicate the right to procedural due process violated by the employer.81 A similar
holding was maintained in Iran v. NLRC82 and Malaya Shipping v. NLRC.83 The doctrine has express
statutory basis, duly recognizes the existence of the right to notice, and vindicates the violation of
such right. It is sound, logical, and should be adopted as a general rule.

The assessment of nominal damages is left to the discretion of the court,84 or in labor cases, of the
Labor Arbiter and the successive appellate levels. The authority to nominate standards governing
the award of nominal damages has clearly been delegated to the judicial branch, and it will serve
good purpose for this Court to provide such guidelines. Considering that the affected right is a
property right, there is justification in basing the amount of nominal damages on the particular
characteristics attaching to the claimant's employment. Factors such as length of service, positions
held, and received salary may be considered to obtain the proper measure of nominal damages.
After all, the degree by which a property right should be vindicated is affected by the estimable value
of such right.

At the same time, it should be recognized that nominal damages are not meant to be compensatory,
and should not be computed through a formula based on actual losses. Consequently, nominal
damages usually limited in pecuniary value.85 This fact should be impressed upon the prospective
claimant, especially one who is contemplating seeking actual/compensatory damages.

Second. Actual or compensatory damages are not available as a matter of right to an employee
dismissed for just cause but denied statutory due process. They must be based on clear factual and
legal bases,86 and correspond to such pecuniary loss suffered by the employee as duly
proven.87 Evidently, there is less degree of discretion to award actual or compensatory damages.

I recognize some inherent difficulties in establishing actual damages in cases for terminations
validated for just cause. The dismissed employee retains no right to continued employment from the
moment just cause for termination exists, and such time most likely would have arrived even before
the employer is liable to send the first notice. As a result, an award of backwages disguised as
actual damages would almost never be justified if the employee was dismissed for just cause. The
possible exception would be if it can be proven the ground for just cause came into being only after
the dismissed employee had stopped receiving wages from the employer.

Yet it is not impossible to establish a case for actual damages if dismissal was for just cause.
Particularly actionable, for example, is if the notices are not served on the employee, thus hampering
his/her opportunities to obtain new employment. For as long as it can be demonstrated that the
failure of the employer to observe procedural due process mandated by the Labor Code is the
proximate cause of pecuniary loss or injury to the dismissed employee, then actual or compensatory
damages may be awarded.

Third. If there is a finding of pecuniary loss arising from the employer violation, but the amount
cannot be proved with certainty, then temperate or moderate damages are available under Article
2224 of the Civil Code. Again, sufficient discretion is afforded to the adjudicator as regards the
proper award, and the award must be reasonable under the circumstances.88 Temperate or nominal
damages may yet prove to be a plausible remedy, especially when common sense dictates that
pecuniary loss was suffered, but incapable of precise definition.

Fourth. Moral and exemplary damages may also be awarded in the appropriate circumstances. As
pointed out by the Decision, moral damages are recoverable where the dismissal of the employee
was attended by bad faith, fraud, or was done in a manner contrary to morals, good customs or
public policy, or the employer committed an act oppressive to labor.89 Exemplary damages may avail
if the dismissal was effected in a wanton, oppressive or malevolent manner.

Appropriate Award of Damages to the Agabons

The records indicate no proof exists to justify the award of actual or compensatory damages, as it
has not been established that the failure to serve the second notice on the Agabons was the
proximate cause to any loss or injury. In fact, there is not even any showing that such violation
caused any sort of injury or discomfort to the Agabons. Nor do they assert such causal relation.
Thus, the only appropriate award of damages is nominal damages. Considering the circumstances, I
agree that an award of Fifteen Thousand Pesos (P15,000.00) each for the Agabons is sufficient.

All premises considered, I VOTE to:

(1) DENY the PETITION for lack of merit, and AFFIRM the Decision of the Court of Appeals
dated 23 January 2003, with the MODIFICATION that in addition, Riviera Homes be

ORDERED to pay the petitioners the sum of Fifteen Thousand Pesos (P15,000.00) each, as
nominal damages.

(2) HOLD that henceforth, dismissals for just cause may not be invalidated due to the failure
to observe the due process requirements under the Labor Code, and that the only indemnity
award available to the employee dismissed for just cause are damages under the Civil Code
as duly proven. Any and all previous rulings and statements of the Court inconsistent with
this holding are now deemed INOPERATIVE.
G.R. No. 198554 July 30, 2012

MAJOR GENERAL CARLOS F. GARCIA, AFP (RET.), Petitioner,

vs.
THE EXECUTIVE SECRETARY, representing the OFFICE OF THE PRESIDENT; THE
SECRETARY OF NATIONAL DEFENSE VOLTAIRE T. GAZMIN; THE CHIEF OF STAFF, ARMED
FORCES OF THE PHILIPPINES, GEN. EDUARDO SL. OBAN, JR., and LT. GEN. GAUDENCIO S.
PANGILINAN, AFP (RET.), DIRECTOR, BUREAU OF CORRECTIONS, Respondents.

DECISION

PERALTA, J.:

For resolution of this Court is the Petition for Certiorari dated September 29, 2011 under Rule 65,
Section 1 of the Revised Rules of Civil Procedure which seeks to annul and set aside the
Confirmation of Sentence dated September 9, 2011, promulgated by the Office of the President.

The facts, as culled from the records, are the following:

On October 13, 2004, the Provost Martial General of the Armed Forces of the Philippines (AFP), Col.
Henry A. Galarpe, by command of Vice-Admiral De Los Reyes, issued a Restriction to
Quarters1 containing the following:

1. Pursuant to Article of War 70 and the directive of the Acting Chief of Staff, AFP to the
undersigned dtd 12 October 2004, you are hereby placed under Restriction to Quarters
under guard pending investigation of your case.

2. You are further advised that you are not allowed to leave your quarters without the
expressed permission from the Acting Chief of Staff, AFP.

3. In case you need immediate medical attention or required by the circumstance to be

confined in a hospital, you shall likewise be under guard.

Thereafter, a Charge Sheet dated October 27, 2004 was filed with the Special General Court Martial
NR 2 presided by Maj. Gen. Emmanuel R. Teodosio, AFP, (Ret.), enumerating the following
violations allegedly committed by petitioner:

CHARGE 1: VIOLATION OF THE 96TH ARTICLE OF WAR (CONDUCT UNBECOMING AN

OFFICER AND GENTLEMAN).

SPECIFICATION 1: In that MAJOR GENERAL CARLOS FLORES GARCIA 0-5820 ARMED

FORCES OF THE PHILIPPINES, person subject to military law, did, on or about 16 March 2004,
knowingly, wrongfully and unlawfully fail to disclose/declare all his existing assets in his Sworn
Statement of Assets and Liabilities and Net Worth for the year 2003 as required by Republic Act No.
3019, as amended in relation to Republic Act 6713, such as the following: cash holdings with the
Armed Forces Police Savings and Loans Association, Inc. (AFPSLAI) in the amount of six million
five hundred [thousand] pesos (P6,500,000.00); cash dividend received from AFPSLAI from June
2003 to December 2003 in the amount of one million three hundred sixty-five thousand pesos
(P1,365,000.00); dollar peso deposits with Land Bank of the Philippines, Allied Banking Corporation,
Banco de Oro Universal Bank, Bank of Philippine Islands, United Coconut Planter's Bank and
Planter's Development Bank; motor vehicles registered under his and his wife’s names such as 1998
Toyota Hilux Utility Vehicle with Plate Nr. WRY-843, Toyota Car with Plate Nr. PEV-665, Toyota
Previa with Plate Nr. UDS-195, 1997 Honda Civic Car with Plate Nr. FEC 134, 1997 Mitsubishi L-
300 Van with Plate Nr. FDZ 582 and 2001 Toyota RAV 4 Utility Vehicle with Plate Nr. FEV-498,
conduct unbecoming an officer and gentleman.

SPECIFICATION 2: In that MAJOR GENERAL CARLOS FLORES GARCIA 0-5820 ARMED

FORCES OF THE PHILIPPINES, person subject to military law, did, on or about 11 March 2003,
knowingly, wrongfully and unlawfully fail to disclose/declare all his existing assets in his Sworn
Statement of Assets and Liabilities and Net worth for the year 2002 as required by Republic Act No.
3019, as amended in relation to Republic Act 6713, such as the following: his cash holdings with the
Armed Forces Police Savings and Loans Association, Inc. (AFPSLAI) in the amount of six million
five hundred [thousand] pesos (P6,500,000.00); cash dividend received form AFPSLAI in June 2002
and December 2002 in the total amount of one million four hundred thirty-five thousand pesos
(1,435,000.00), dollar and peso deposits with Land Bank of the Philippines, Allied Banking
Corporation, Banco de Oro Universal Bank, Bank of the Philippine Islands, United Coconut Planter's
Bank and Planter's Development Bank; motor vehicles registered under his and his wife’s names
such as 1998 Toyota Hilux Utility Vehicle with Plate Nr. WRY-843, Toyota Car with Plate Nr. PEV-
665, Toyota Previa with Plate Nr. UDS-195, 1997 Honda Civic Car with Plate Nr. FEC-134, 1997
Mitsubishi L-300 Van with Plate Nr. FDZ-582, and 2001 Toyota RAV 4

Utility Vehicle with Plate Nr. FEV-498, conduct unbecoming an officer and gentleman.

SPECIFICATION 3: In that MAJOR GENERAL CARLOS FLORES GARCIA 0-5820 ARMED

FORCES OF THE PHILIPPINES, person subject to military law, did, while in the active military
service of the Armed Forces of the Philippines, knowingly, wrongfully and unlawfully violate his
solemn oath as a military officer to uphold the Constitution and serve the people with utmost loyalty
by acquiring and holding the status of an immigrant/permanent residence of the United

States of America in violation of the State policy governing public officers, thereby causing dishonor
and disrespect to the military professional and seriously compromises his position as an officer and
exhibits him as morally unworthy to remain in the honorable profession of arms.

CHARGE II: VIOLATION OF THE 97TH ARTICLE OF WAR (CONDUCT PREJUDICIAL TO GOOD
ORDER AND MILITARY DISCIPLINE).

SPECIFICATION 1: In that MAJOR GENERAL CARLOS FLORES GARCIA 0-5820 ARMED

FORCES OF THE PHILIPPINES, person subject to military law, did, on or about 16 March 2004,
knowingly, wrongfully and unlawfully make untruthful statements under oath of his true assets in his
Statement of Assets and Liabilities and Net worth for the year 2003 as required by Republic Act No.
3019, as amended in relation to Republic Act 6713, conduct prejudicial to good order and military
discipline.

SPECIFICATION NO. 2: In that MAJOR GENERAL CARLOS FLORES GARCIA 0-5820 ARMED
FORCES OF THE PHILIPPINES, person subject to military law, did, on or about 11 March 2003,
knowingly, wrongfully and unlawfully make untruthful statements under oath of his true assts in his
Statement of Assets and Liabilities and Net worth for the year 2002 as required by Republic Act No.
3019, as amended in relation to Republic Act 6713, conduct prejudicial to good order and military
discipline.

Petitioner, upon arraignment on November 16, 2004, pleaded not guilty on all the charges.
The Office of the Chief of Staff, through a Memorandum2 dated November 18, 2004, directed the
transfer of confinement of petitioner from his quarters at Camp General Emilio Aguinaldo to the
ISAFP Detention Center. On the same day, petitioner, having reached the age of fifty-six (56),
compulsorily retired from military service after availing of the provisions of Presidential Decree (P.D.)
No. 1650,3 amending Sections 3 and 5 of P.D. 1638, which establishes a system of retirement for
military personnel of the Armed Forces of the Philippines.

Pursuant to a Resolution4 dated June 1, 2005 of the Second Division of the Sandiganbayan,
petitioner was transferred from the ISAFP Detention Center to the Camp Crame Custodial Detention
Center.

After trial, at the Special General Court Martial No. 2, on December 2, 2005, the findings or the After-
Trial Report5 of the same court was read to the petitioner. The report contains the following verdict
and sentence:

MGEN CARLOS FLORES GARCIA 0-5820 AFP the court in closed session upon secret written
ballot 2/3 of all the members present at the time the voting was taken concurring the following
findings. Finds you:

On Specification 1 of Charge 1 – Guilty except the words dollar deposits with Land Bank of the Phils,
dollar peso deposits with Allied Bank, Banco de Oro, Universal Bank, Bank of the Philippine Island,
United Coconut Planters Bank and Planters Development Bank.

On Specification 2 of Charge 1 – Guilty except the words dollar deposits with Land Bank of the Phils,
dollar peso deposits with Allied Bank, Banco de Oro, Universal Bank, Bank of the Philippine Island,
United Coconut Planters Bank and Planters Development Bank.

On Specification 3 of Charge 1 – Guilty

On Specification 1 of Charge 2 – Guilty

On Specification 2 of Charge 2 – Guilty

And again in closed session upon secret written ballot 2/3 all the members are present at the time
the votes was taken concurrently sentences you to be dishonorably [discharged] from the service, to
forfeit all pay and allowances due and to become due and to be confined at hard labor at such place
the reviewing authority may direct for a period of two (2) years. So ordered. (Emphases supplied)

Afterwards, in a document6 dated March 27, 2006, the Staff Judge Advocate stated the following
recommended action:

IV. RECOMMENDED ACTION:

The court, after evaluating the evidence, found accused: GUILTY on Charge 1, GUILTY on
Specification 1 on Charge 1 – except the words dollar deposits with Land Bank of the Philippines,
dollar and peso deposits with Allied Banking Corporation, Banco de Oro Universal Bank, Bank of the
Philippine Islands, United Coconut Planter's Bank and Planter's Development Bank; GUILTY on
Charge 1, Specification 2 except the words dollar deposits with Land Bank of the Philippines, dollar
and peso deposits with Allied Banking Corporation, Banco de Oro Universal Bank, Bank of the
Philippine Islands, United Coconut Planters Bank and Planter's Development Bank; GUILTY on
Specification 3 of Charge 1; GUILTY on Charge 2 and all its specifications. The sentence imposed
by the Special GCM is to be dishonorably discharged from the service, to forfeit all pay and
allowances due and to become due; and to be confined at hard labor at such place the reviewing
authority may direct for a period of two (2) years. As it is, the sentence is proper and legal.
Recommend that the sentence be approved. The PNP custodial facility in Camp Crame, Quezon
City, is the appropriate place of confinement. The period of confinement from 18 October 2004 shall
be credited in his favor and deducted from the two (2) years to which the accused was sentenced.
Thus, confinement will expire on 18 October 2006. Considering that the period left not served is less
than one (1) year, confinement at the National Penitentiary is no longer appropriate.

4. To carry this recommendation into effect, a draft "ACTION OF THE REVIEWING AUTHORITY" is
hereto attached.

In an undated document,7 the AFP Board of Military Review recommended the following action:

8. RECOMMENDED ACTION:

A. Only so much of the sentence as provides for the mandatory penalty of dismissal from the
military service and forfeiture of pay and allowances due and to become due for the offenses
of violation of AW 96 (Conduct Unbecoming an Officer and a Gentleman) and for violation of
AW 97 (Conduct Prejudicial to Good Order and Military Discipline) be imposed upon the
Accused.

B. The records of the instant case should be forwarded to the President thru the Chief of
Staff and the Secretary of National Defense, for final review pursuant to AW 47, the Accused
herein being a General Officer whose case needs confirmation by the President.

C. To effectuate the foregoing, attached for CSAFP's signature/approval is a proposed 1st

Indorsement to the President, thru the Secretary of National Defense, recommending approval of the
attached prepared "ACTION OF THE PRESIDENT."

After six (6) years and two (2) months of preventive confinement, on December 16, 2010, petitioner
was released from the Camp Crame Detention Center.8

The Office of the President, or the President as Commander-in-Chief of the AFP and acting as the
Confirming Authority under the Articles of War, confirmed the sentence imposed by the Court Martial
against petitioner. The Confirmation of Sentence,9 reads in part:

NOW, THEREFORE, I, BENIGNO S. AQUINO III, the President as Commander-in-Chief of the

Armed Forces of the Philippines, do hereby confirm the sentence imposed by the Court Martial in the
case of People of the Philippines versus Major General Carlos Flores Garcia AFP:

a) To be dishonorable discharged from the service;

b) To forfeit all pay and allowances due and to become due; and

c) To be confined for a period of two (2) years in a penitentiary.

FURTHER, pursuant to the 48th and 49th Articles of War, the sentence on Major General Carlos
Flores Garcia AFP shall not be remitted/mitigated by any previous confinement. Major General
Carlos Flores Garcia AFP shall serve the foregoing sentence effective on this date.
DONE, in the City of Manila, this 9th day of September, in the year of our Lord, Two Thousand and
Eleven.

Consequently, on September 15, 2011, respondent Secretary of National Defense Voltaire T.

Gazmin, issued a Memorandum10 to the Chief of Staff, AFP for strict implementation, the
Confirmation of Sentence in the Court Martial Case of People of the Philippines Versus Major
General Carlos Flores Garcia AFP.

On September 16, 2011, petitioner was arrested and detained, and continues to be detained at the
National Penitentiary, Maximum Security, Bureau of Corrections, Muntinlupa City.11

Aggrieved, petitioner filed with this Court the present petition for certiorari and petition for habeas
corpus, alternatively. However, this Court, in its Resolution12 dated October 10, 2011, denied the
petition for habeas corpus. Petitioner filed a motion for reconsideration13 dated November 15, 2011,
but was denied14 by this Court on December 12, 2011.

Petitioner enumerates the following grounds to support his petition:

GROUNDS

A.

THE JURISDICTION OF THE GENERAL COURT MARTIAL CEASED IPSO FACTO UPON THE
RETIREMENT OF PETITIONER, FOR WHICH REASON THE OFFICE OF THE PRESIDENT
ACTED WITHOUT JURISDICTION IN ISSUING THE CONFIRMATION OF SENTENCE, AND
PETITIONER'S ARREST AND CONFINEMENT PURSUANT THERETO IS ILLEGAL, THUS
WARRANTING THE WRIT OF HABEAS CORPUS.

B.

EVEN ASSUMING FOR THE SAKE OF ARGUMENT THAT PETITIONER REMAINED AMENABLE
TO COURT MARTIAL JURISDICTION AFTER HIS RETIREMENT, THE OFFICE OF THE
PRESIDENT ACTED WITH GRAVE ABUSE OF DISCRETION IN IMPOSING THE SENTENCE OF
TWO (2) YEARS CONFINEMENT WITHOUT ANY LEGAL BASIS, FOR WHICH REASON
PETITIONER'S ARREST AND CONFINEMENT IS ILLEGAL, THUS WARRANTING THE WRIT OF
HABEAS CORPUS.

C.

EVEN ASSUMING FOR THE SAKE OF ARGUMENT THAT THE PENALTY OF TWO (2) YEARS
CONFINEMENT MAY BE IMPOSED IN ADDITION TO THE PENALTIES OF DISMISSAL AND
FORFEITURE, THE SENTENCE HAD BEEN FULLY SERVED IN VIEW OF PETITIONER'S
PREVENTIVE CONFINEMENT WHICH EXCEEDED THE 2-YEAR SENTENCE, AND THE OFFICE
OF THE PRESIDENT HAS NO AUTHORITY TO REPUDIATE SAID SERVICE OF SENTENCE,
FOR WHICH REASON PETITIONER'S ARREST AND CONFINEMENT DESPITE FULL SERVICE
OF SENTENCE IS ILLEGAL, THUS WARRANTING THE WRIT OF HABEAS CORPUS.15

In view of the earlier resolution of this Court denying petitioner's petition for habeas corpus, the
above grounds are rendered moot and academic. Thus, the only issue in this petition for certiorari
under Rule 65 of the Revised Rules of Civil Procedure, which was properly filed with this
Court, is whether the Office of the President acted with grave abuse of discretion, amounting to lack
or excess of jurisdiction, in issuing the Confirmation of Sentence dated September 9, 2011.

In its Comment16 dated October 27, 2011, the Office of the Solicitor General (OSG) lists the following
counter-arguments:

I.

PETITIONER'S DIRECT RECOURSE TO THE HONORABLE COURT VIOLATES THE DOCTRINE

OF HIERARCHY OF COURTS; HENCE, THE PETITION SHOULD BE OUTRIGHTLY DISMISSED.

II.

THE GENERAL COURT MARTIAL RETAINED JURISDICTION OVER PETITIONER DESPITE HIS
RETIREMENT DURING THE PENDENCY OF THE PROCEEDINGS AGAINST HIM SINCE THE
SAID TRIBUNAL'S JURISDICTION HAD ALREADY FULLY ATTACHED PRIOR TO PETITIONER'S
RETIREMENT.

III.

THE CONFIRMATION ISSUED BY THE OFFICE OF THE PRESIDENT DIRECTING PETITIONER

TO BE CONFINED FOR TWO (2) YEARS IN A PENITENTIARY IS SANCTIONED BY C. A. NO.
408 AND EXECUTIVE ORDER NO. 178, PURSUANT TO THE PRESIDENT'S CONSTITUTIONAL
AUTHORITY AS THE COMMANDER-IN-CHIEF OF THE AFP.

IV.

PETITIONER'S RIGHT TO A SPEEDY DISPOSITION OF HIS CASE WAS NOT VIOLATED IN THIS
CASE.

V.

THE IMPOSITION OF THE PENALTY OF TWO (2) YEARS CONFINEMENT ON PETITIONER BY

THE GCM, AND AS CONFIRMED BY THE PRESIDENT OF THE PHILIPPINES, IS VALID.

VI.

ACCORDINGLY, PUBLIC RESPONDENTS DID NOT ACT WITH GRAVE ABUSE OF DISCRETION
IN ISSUING AND IMPLEMENTING THE CONFIRMATION OF SENTENCE.17

Petitioner, in his Reply18 dated January 20, 2012, disagreed with the arguments raised by the OSG
due to the following:

(A)

THE CONFIRMATION OF THE COURT MARTIAL SENTENCE IS AN ACT BY THE PRESIDENT,

AS THE COMMANDER-IN-CHIEF, AND NOT MERELY AS THE HEAD OF THE EXECUTIVE
BRANCH. THEREFORE, THE HONORABLE COURT IS THE ONLY APPROPRIATE COURT
WHERE HIS ACT MAY BE IMPUGNED, AND NOT IN THE LOWER COURTS, I.E., REGIONAL
TRIAL COURT ("RTC") OR THE COURT OF APPEALS ("CA"), AS THE OSG ERRONEOUSLY
POSTULATES.
(B)

ALTHOUGH THE GENERAL COURT MARTIAL ("GCM") RETAINED JURISDICTION "OVER THE
PERSON" OF PETITIONER EVEN AFTER HE RETIRED FROM THE ARMED FORCES OF THE
PHILIPPINES ('AFP"), HOWEVER, HIS RETIREMENT, CONTRARY TO THE STAND OF THE
OSG, SEVERED HIS "JURAL RELATIONSHIP" WITH THE MILITARY, THEREBY PLACING HIM
BEYOND THE SUBSTANTIVE REACH OF THE AFP'S COURT MARTIAL JURISDICTION.

(C)

UNDER ART. 29, REVISED PENAL CODE ("RPC"), PETITIONER'S COURT MARTIAL SENTENCE
OF TWO (2) YEARS IN CARCERATION HAD ALREADY BEEN SERVED IN FULL SINCE HE HAD
ALREADY SUFFERED PREVENTIVE IMPRISONMENT OF AT LEAST SIX (6) YEARS BEFORE
THE SENTENCE COULD BE CONFIRMED, WHICH MEANS THAT THE PRESIDENT HAD NO
MORE JURISDICTION WHEN HE CONFIRMED IT, THEREBY RENDERING THE
"CONFIRMATION OF SENTENCE" A PATENT NULLITY, AND, CONSEQUENTLY, INVALIDATING
THE OSG'S POSITION THAT THE PRESIDENT STILL HAD JURISDICTION WHEN HE
CONFIRMED THE SENTENCE.19

Petitioner raises the issue of the jurisdiction of the General Court Martial to try his case. According to
him, the said jurisdiction ceased ipso facto upon his compulsory retirement. Thus, he insists that the
Office of the President had acted without jurisdiction in issuing the confirmation of his sentence.

This Court finds the above argument bereft of merit.

Article 2 of the Articles of War20 circumscribes the jurisdiction of military law over persons subject
thereto, to wit:

Art. 2. Persons Subject to Military Law. - The following persons are subject to these articles and shall
be understood as included in the term "any person subject to military law" or "persons subject to
military law," whenever used in these articles:

(a) All officers and soldiers in the active service of the Armed Forces of the Philippines or of
the Philippine Constabulary; all members of the reserve force, from the dates of their call to
active duty and while on such active duty; all trainees undergoing military instructions; and all
other persons lawfully called, drafted, or ordered into, or to duty or for training in, the said
service, from the dates they are required by the terms of the call, draft, or order to obey the
same;

(b) Cadets, flying cadets, and probationary second lieutenants;

(c) All retainers to the camp and all persons accompanying or serving with the Armed Forces
of the Philippines in the field in time of war or when martial law is declared though not
otherwise subject to these articles;

(d) All persons under sentence adjudged by courts-martial.

(As amended by Republic Acts 242 and 516).

It is indisputable that petitioner was an officer in the active service of the AFP in March 2003 and
2004, when the alleged violations were committed. The charges were filed on October 27, 2004 and
he was arraigned on November 16, 2004. Clearly, from the time the violations were committed until
the time petitioner was arraigned, the General Court Martial had jurisdiction over the case. Well-
settled is the rule that jurisdiction once acquired is not lost upon the instance of the parties but
continues until the case is terminated.21 Therefore, petitioner's retirement on November 18, 2004 did
not divest the General Court Martial of its jurisdiction. In B/Gen. (Ret.) Francisco V. Gudani, et al. v.
Lt./Gen. Generoso Senga, et al.,22 this Court ruled that:

This point was settled against Gen. Gudani's position in Abadilla v. Ramos, where the Court
declared that an officer whose name was dropped from the roll of officers cannot be considered to
be outside the jurisdiction of military authorities when military justice proceedings were initiated
against him before the termination of his service. Once jurisdiction has been acquired over the
officer, it continues until his case is terminated. Thus, the Court held:

The military authorities had jurisdiction over the person of Colonel Abadilla at the time of the alleged
offenses. This jurisdiction having been vested in the military authorities, it is retained up to the end of
the proceedings against Colonel Abadilla. Well-settled is the rule that jurisdiction once acquired is
not lost upon the instance of the parties but continues until the case is terminated.

Citing Colonel Winthrop's treatise on Military Law, the Court further stated:

We have gone through the treatise of Colonel Winthrop and We find the following passage which
goes against the contention of the petitioners, viz. —

3. Offenders in general — Attaching of jurisdiction. It has further been held, and is now settled law, in
regard to military offenders in general, that if the military jurisdiction has once duly attached to them
previous to the date of the termination of their legal period of service, they may be brought to trial by
court-martial after that date, their discharge being meanwhile withheld. This principle has mostly
been applied to cases where the offense was committed just prior to the end of the term. In such
cases the interests of discipline clearly forbid that the offender should go unpunished. It is held
therefore that if before the day on which his service legally terminates and his right to a discharge is
complete, proceedings with a view to trial are commenced against him — as by arrest or the service
of charges, — the military jurisdiction will fully attach and once attached may be continued by a trial
by court-martial ordered and held after the end of the term of the enlistment of the accused x x x

Thus, military jurisdiction has fully attached to Gen. Gudani inasmuch as both the acts complained of
and the initiation of the proceedings against him occurred before he compulsorily retired on 4
October 2005. We see no reason to unsettle the Abadilla doctrine. The OSG also points out that
under Section 28 of Presidential Decree No. 1638, as amended, "an officer or enlisted man carried
in the retired list of the Armed Forces of the Philippines shall be subject to the Articles of War x x x"
To this citation, petitioners do not offer any response, and in fact have excluded the matter of Gen.
Gudani's retirement as an issue in their subsequent memorandum.23

It is also apt to mention that under Executive Order No. 178, or the Manual for Courts-Martial, AFP,
the jurisdiction of courts-martial over officers, cadets, soldiers, and other military personnel in the
event of discharge or other separation from the service, and the exceptions thereto, is defined thus:

10. COURT-MARTIAL – Jurisdiction in general – Termination – General Rules – The general rule is
that court-martial jurisdiction over officers, cadets, soldiers and others in the military service of the
Philippines ceases on discharge or other separation from such service, and that jurisdiction as to
any offense committed during a period of service thus terminated is not revived by a reentry into the
military service.
Exceptions – To this general rule there are, however, some exceptions, among them the following:

xxxx

In certain case, where the person's discharge or other separation does not interrupt his status as a
person belonging to the general category of persons subject to military law, court-martial jurisdiction
does not terminate. Thus, where an officer holding a reserve commission is discharged from said
commission by reason of acceptance of a commission in the Regular Force, there being no interval
between services under the respective commissions, there is no terminating of the officer's military
status, but merely the accomplishment of a change in his status from that of a reserve to that of a
regular officer, and that court-martial jurisdiction to try him for an offense (striking enlisted men for
example) committed prior to the discharge is not terminated by the discharge. So also, where a
dishonorable discharged general prisoner is tried for an offense committed while a soldier and prior
to his dishonorable discharge, such discharge does not terminate his amenability to trial for the
offense. (Emphases supplied.)

Petitioner also asserts that the General Court Martial's continuing jurisdiction over him despite his
retirement holds true only if the charge against him involves fraud, embezzlement or
misappropriation of public funds citing this Court's ruling in De la Paz v. Alcaraz,et al.24 and Martin v.
Ve r.25 However, this is not true. The OSG is correct in stating that in De la Paz,26 military jurisdiction
over the officer who reverted to inactive status was sustained by this Court because the violation
involved misappropriation of public funds committed while he was still in the active military service,
while in Martin,27 military jurisdiction was affirmed because the violation pertained to illegal disposal of
military property. Both cited cases centered on the nature of the offenses committed by the military
personnel involved, justifying the exercise of jurisdiction by the courts-martial. On the other hand, in
the present case, the continuing military jurisdiction is based on prior attachment of jurisdiction on
the military court before petitioner's compulsory retirement. This continuing jurisdiction is provided
under Section 1 of P.D. 1850,28 as amended, thus:

Section 1. Court Martial Jurisdiction over Integrated National Police and Members of the Armed
Forces. - Any provision of law to the contrary notwithstanding – (a) uniformed members of the
Integrated National Police who commit any crime or offense cognizable by the civil courts shall
henceforth be exclusively tried by courts-martial pursuant to and in accordance with Commonwealth
Act No. 408, as amended, otherwise known as the Articles of War; (b) all persons subject to military
law under article 2 of the aforecited Articles of War who commit any crime or offense shall be
exclusively tried by courts-martial or their case disposed of under the said Articles of War; Provided,
that, in either of the aforementioned situations, the case shall be disposed of or tried by the proper
civil or judicial authorities when court-martial jurisdiction over the offense has prescribed under
Article 38 of Commonwealth Act Numbered 408, as amended, or court-martial jurisdiction over the
person of the accused military or Integrated National Police personnel can no longer be exercised by
virtue of their separation from the active service without jurisdiction having duly attached beforehand
unless otherwise provided by law: Provided further, that the President may, in the interest of justice,
order or direct, at any time before arraignment, that a particular case be tried by the appropriate civil
court. (Emphasis supplied.)

Having established the jurisdiction of the General Court Martial over the case and the person of the
petitioner, the President, as Commander-in-Chief, therefore acquired the jurisdiction to confirm
petitioner's sentence as mandated under Article 47 of the Articles of War, which states:

Article 47. Confirmation – When Required. - In addition to the approval required by article forty-five,
confirmation by the President is required in the following cases before the sentence of a court-
martial is carried into execution, namely:
 (a) Any sentence respecting a general officer;

(b) Any sentence extending to the dismissal of an officer except that in time of war a
sentence extending to the dismissal of an officer below the grade of brigadier general may
be carried into execution upon confirmation by the commanding general of the Army in the
field;

(c) Any sentence extending to the suspension or dismissal of a cadet, probationary second
lieutenant; and

(d) Any sentence of death, except in the case of persons convicted in time of war, of murder,
mutiny, desertion, or as spies, and in such excepted cases of sentence of death may be
carried into execution, subject to the provisions of Article 50, upon confirmation by the
commanding general of the Army in the said field.

When the authority competent to confirm the sentence has already acted as the approving authority
no additional confirmation by him is necessary. (As amended by Republic Act No. 242). (Emphasis
supplied.)

In connection therewith, petitioner argues that the confirmation issued by the Office of the President
directing him to be confined for two (2) years in the penitentiary had already been fully served in
view of his preventive confinement which had exceeded two (2) years. Therefore, according to him,
the Office of the President no longer has the authority to order his confinement in a penitentiary. On
the other hand, the OSG opines that petitioner cannot legally demand the deduction of his
preventive confinement in the service of his imposed two-year confinement in a penitentiary,
because unlike our Revised Penal Code29 which specifically mandates that the period of preventive
imprisonment of the accused shall be deducted from the term of his imprisonment, the Articles of
War and/or the Manual for Courts-Martial do not provide for the same deduction in the execution of
the sentence imposed by the General Court Martial as confirmed by the President in appropriate
cases.

On the above matter, this Court finds the argument raised by the OSG unmeritorious and finds logic
in the assertion of petitioner that Article 29 of the Revised Penal Code can be made applicable in the
present case.

The OSG maintains that military commissions or tribunals are not courts within the Philippine judicial
system, citing Olaguer, et al. v. Military Commission No. 4,30 hence, they are not expected to apply
criminal law concepts in their implementation and execution of decisions involving the discipline of
military personnel. This is misleading. In Olaguer, the courts referred to were military commissions
created under martial law during the term of former President Ferdinand Marcos and was declared
unconstitutional by this Court, while in the present case, the General Court Martial which tried it, was
created under Commonwealth Act No. 408, as amended, and remains a valid entity.

In Marcos v. Chief of Staff, Armed Forces of the Philippines,31 this Court ruled that a court-martial
case is a criminal case and the General Court Martial is a "court" akin to any other courts. In the
same case, this Court clarified as to what constitutes the words "any court" used in Section 1732 of
the 1935 Constitution prohibiting members of Congress to appear as counsel in any criminal case in
which an officer or employee of the Government is accused of an offense committed in relation to his
office. This Court held:
We are of the opinion and therefore hold that it is applicable, because the words "any court" includes
the General Court-Martial, and a court-martial case is a criminal case within the meaning of the
above quoted provisions of our Constitution.

It is obvious that the words "any court," used in prohibiting members of Congress to appear as
counsel "in any criminal case in which an officer or employee of the Government is accused of an
offense committed in relation to his office," refers, not only to a civil, but also to a military court or a
Court-Martial. Because, in construing a Constitution, "it must be taken as established that where
words are used which have both a restricted and a general meaning, the general must prevail over
the restricted unless the nature of the subject matter of the context clearly indicates that the limited
sense is intended." (11 American Jurisprudence, pp. 680-682).

In the case of Ramon Ruffy vs. Chief of Staff of the Philippine Army,* 43 Off. Gaz., 855, we did not
hold that the word "court" in general used in our Constitution does not include a Court-Martial; what
we held is that the words "inferior courts" used in connection with the appellate jurisdiction of the
Supreme Court to "review on appeal certiorari or writ of error, as the law or rules of court may
provide, final judgments of inferior courts in all criminal cases in which the penalty imposed is death
or life imprisonment," as provided for in section 2, Article VIII, of the Constitution, do not refer to
Courts-Martial or Military Courts.

Winthrop's Military Law and Precedents, quoted by the petitioners and by this Court in the case of
Ramon Ruffy et al vs. Chief of Staff of the Philippine Army, supra, has to say in this connection the
following:

Notwithstanding that the court-martial is only an instrumentality of the executive power having no
relation or connection, in law, with the judicial establishments of the country, it is yet, so far as it is a
court at all, and within its field of action, as fully a court of law and justice as is any civil tribunal. As a
court of law, it is bound, like any court, by the fundamental principles of law, and, in the absence of
special provision of the subject in the military code, it observes in general the rules of evidence as
adopted in the common-law courts. As a court of justice, it is required by the terms of its statutory
oath, (art. 84.) to adjudicate between the U.S. and the accused "without partiality, favor, or affection,"
and according, not only to the laws and customs of the service, but to its "conscience," i.e. its sense
of substantial right and justice unaffected by technicalities. In the words of the Attorney General,
court-martial are thus, "in the strictest sense courts of justice. (Winthrop's Military Law and
Precedents, Vol. 1 and 2, 2nd Ed., p. 54.)

In re Bogart, 3 Fed. Cas., 796, 801, citing 6 Op. Attys. Gen. 425, with approval, the court said:

In the language of Attorney General Cushing, a court-martial is a lawful tribunal existing by the same
authority that any other exists by, and the law military is a branch of law as valid as any other, and it
differs from the general law of the land in authority only in this: that it applies to officers and soldiers
of the army but not to other members of the body politic, and that it is limited to breaches of military
duty.

And in re Davison, 21 F. 618, 620, it was held:

That court-martial are lawful tribunals existing by the same authority as civil courts of the United
States, have the same plenary jurisdiction in offenses by the law military as the latter courts have in
controversies within their cognizance, and in their special and more limited sphere are entitled to as
untrammelled an exercise of their powers.

And lastly, American Jurisprudence says:

SEC. 99. Representation by Counsel. — It is the general rule that one accused of the crime has the
right to be represented before the court by counsel, and this is expressly so declared by the statues
controlling the procedure in court-martial. It has been held that a constitutional provision extending
that right to one accused in any trial in any court whatever applies to a court-martial and gives the
accused the undeniable right to defend by counsel, and that a court-martial has no power to refuse
an attorney the right to appear before it if he is properly licensed to practice in the courts of the state.
(Citing the case of State ex rel Huffaker vs. Crosby, 24 Nev. 115, 50 Pac. 127; 36 American
Jurisprudence 253)

The fact that a judgment of conviction, not of acquittal, rendered by a court-martial must be approved
by the reviewing authority before it can be executed (Article of War 46), does not change or affect
the character of a court-martial as a court. A judgment of the Court of First Instance imposing death
penalty must also be approved by the Supreme Court before it can be executed.

That court-martial cases are criminal cases within the meaning of Section 17, Article VI, of the
Constitution is also evident, because the crimes and misdemeanors forbidden or punished by the
Articles of War are offenses against the Republic of the Philippines. According to section 1,

Rule 106, of the Rules of Court, a criminal action or case is one which involves a wrong or injury
done to the Republic, for the punishment of which the offender is prosecuted in the name of the
People of the Philippines; and pursuant to Article of War 17, "the trial advocate of a general or
special court-martial shall prosecute (the accused) in the name of the People of the Philippines."

Winthtrop, in his well known work "Military Law and Precedents' says the following:

In regard to the class of courts to which it belongs, it is lastly to be noted that the court-martial is
strictly a criminal court. It has no civil jurisdiction whatever; cannot enforce a contract, collect a debt,
or award damages in favor of an individual. . . . Its judgment is a criminal sentence not a civil verdict;
its proper function is to award punishment upon the ascertainment of guilt. (Winthrop's Military Law
and Precedents, Vols. 1 & 2, 2nd Ed., p. 55.)

In N. Y. it was held that the term "criminal case," used in the clause, must be allowed some meaning,
and none can be conceived, other than a prosecution for a criminal offense. Ex parte Carter. 66 S.
W. 540, 544, 166 No. 604, 57 L.R.A. 654, quoting People vs. Kelly, 24 N.Y. 74; Counselman vs.
Hitchcock, 12 S. Ct. 195; 142 U.S. 547, L. Ed. 111o. (Words and Phrases, Vol. 10, p. 485.)

Besides, that a court-martial is a court, and the prosecution of an accused before it is a criminal and
not an administrative case, and therefore it would be, under certain conditions, a bar to another
prosecution of the defendant for the same offense, because the latter would place the accused in
jeopardy, is shown by the decision of the Supreme Court of the United States in the case of Grafton
vs. United States, 206 U. S. 333; 51 Law. Ed., 1088, 1092, in which the following was held:

If a court-martial has jurisdiction to try an officer or soldier for a crime, its judgment will be accorded
the finality and conclusiveness as to the issues involved which attend the judgments of a civil court
in a case of which it may legally take cognizance; x x x and restricting our decision to the above
question of double jeopardy, we judge that, consistently with the above act of 1902, and for the
reasons stated, the plaintiff in error, a soldier in the Army, having been acquitted of the crime of
homicide, alleged to have been committed by him in the Philippines, by a military court of competent
jurisdiction, proceeding under the authority of the United States, could not be subsequently tried for
the same offense in a civil court exercising authority in that territory.33 (Emphasis supplied.)
Hence, as extensively discussed above, the General Court Martial is a court within the strictest
sense of the word and acts as a criminal court. On that premise, certain provisions of the Revised
Penal Code, insofar as those that are not provided in the Articles of War and the Manual for Courts-
Martial, can be supplementary. Under Article 10 of the Revised Penal Code:

Art. 10. Offenses not subject to the provisions of this Code. - Offenses which are or in the future may
be punishable under special laws are not subject to the provisions of this Code. This Code shall be
supplementary to such laws, unless the latter should specially provide the contrary.

A special law is defined as a penal law which punishes acts not defined and penalized by the
Revised Penal Code.34 In the present case, petitioner was charged with and convicted of Conduct
Unbecoming an Officer and Gentleman (96th Article of War) and Violation of the 97th Article of War,
or Conduct Prejudicial to Good Order and Military Discipline, both of which are not defined and
penalized under the Revised Penal Code. The corresponding penalty imposed by the General Court
Martial, which is two (2) years of confinement at hard labor is penal in nature. Therefore, absent any
provision as to the application of a criminal concept in the implementation and execution of the
General Court Martial's decision, the provisions of the Revised Penal Code, specifically Article 29
should be applied. In fact, the deduction of petitioner's period of confinement to his sentence has
been recommended in the Staff Judge Advocate Review, thus:

x x x Recommend that the sentence be approved. The PNP custodial facility in Camp Crame,
Quezon City, is the appropriate place of confinement. The period of confinement from 18 October
2004 shall be credited in his favor and deducted from the two (2) years to which the accused was
sentenced. Thus, confinement will expire on 18 October 2006. Considering that the period left not
served is less than one (1) year, confinement at the National Penitentiary is no longer
appropriate.35 (Emphasis supplied.)

The above was reiterated in the Action of the Reviewing Authority, thus:

In the foregoing General Court-Martial case of People of the Philippines versus MGEN. CARLOS F.
GARCIA 0-5820 AFP (now Retired), the verdict of GUILTY is hereby approved.

The sentence to be dishonorably discharged from the service; to forfeit all pay and allowances due
and to become due; and to be confined at hard labor at such place as the reviewing authority may
direct for a period of two (2) years is also approved.

Considering that the Accused has been in confinement since 18 October 2004, the entire period of
his confinement since 18 October 2004 will be credited in his favor. Consequently, his two (2) year
sentence of confinement will expire on 18 October 2006.

The proper place of confinement during the remaining unserved portion of his sentence is an official
military detention facility. However, the Accused is presently undergoing trial before the
1âwphi1

Sandiganbayan which has directed that custody over him be turned over to the civilian authority and
that he be confined in a civilian jail or detention facility pending the disposition of the case(s) before
said Court. For this reason, the Accused shall remain confined at the PNP's detention facility in
Camp Crame, Quezon City. The Armed Forces of the Philippines defers to the civilian authority on
this matter.

Should the Accused be released from confinement upon lawful orders by the Sandiganbayan before
the expiration of his sentence adjudged by the military court, the Provost Marshal General shall
immediately take custody over the Accused, who shall be transferred to and serve the remaining
unserved portion thereof at the ISAFP detention facility in Camp General Emilio Aguinaldo, Quezon
City.36 (Emphasis supplied.)

Nevertheless, the application of Article 29 of the Revised Penal Code in the Articles of War is in
accordance with the Equal Protection Clause of the 1987 Constitution. According to a long line of
decisions, equal protection simply requires that all persons or things similarly situated should be
treated alike, both as to rights conferred and responsibilities imposed.37 It requires public bodies and
institutions to treat similarly situated individuals in a similar manner.38 The purpose of the equal
protection clause is to secure every person within a state's jurisdiction against intentional and
arbitrary discrimination, whether occasioned by the express terms of a statute or by its improper
execution through the state's duly-constituted authorities.39 In other words, the concept of equal
justice under the law requires the state to govern impartially, and it may not draw distinctions
between individuals solely on differences that are irrelevant to a legitimate governmental
objective.40 It, however, does not require the universal application of the laws to all persons or things
without distinction. What it simply requires is equality among equals as determined according to a
valid classification. Indeed, the equal protection clause permits classification. Such classification,
however, to be valid must pass the test of reasonableness. The test has four requisites: (1) the
classification rests on substantial distinctions; (2) it is germane to the purpose of the law; (3) it is not
limited to existing conditions only; and (4) it applies equally to all members of the same
class.41 "Superficial differences do not make for a valid classification."42 In the present case, petitioner
belongs to the class of those who have been convicted by any court, thus, he is entitled to the rights
accorded to them. Clearly, there is no substantial distinction between those who are convicted of
offenses which are criminal in nature under military courts and the civil courts. Furthermore,
following the same reasoning, petitioner is also entitled to the basic and time-honored principle that
penal statutes are construed strictly against the State and liberally in favor of the accused.43 It must
be remembered that the provisions of the Articles of War which the petitioner violated are penal in
nature.

The OSG is correct when it argued that the power to confirm a sentence of the President, as
Commander-in-Chief, includes the power to approve or disapprove the entire or any part of the
sentence given by the court martial. As provided in Article 48 of the Articles of War:

Article 48. Power Incident to Power to Confirm. - The power to confirm the sentence of a court-
martial shall be held to include:

(a) The power to confirm or disapprove a finding, and to confirm so much only of a finding of
guilty of a particular offense as involves a finding of guilty of a lesser included offense when,
in the opinion of the authority having power to confirm, the evidence of record requires a
finding of only the lesser degree of guilt;

(b) The power to confirm or disapprove the whole or any part of the sentence; and

(c) The power to remand a case for rehearing, under the provisions of Article 50. (Emphasis
supplied.)

In addition, the President also has the power to mitigate or remit a sentence. Under Article 49 of the
Articles of War:

Article 49. Mitigation or Remission of Sentence. - The power to order the execution of the sentence
adjudged by a court-martial shall be held to include, inter alia, the power to mitigate or remit the
whole or any part of the sentence.
Any unexpected portion of a sentence adjudged by a court-martial may be mitigated or remitted by
the military authority competent to appoint, for the command, exclusive of penitentiaries and
Disciplinary Barracks of the Armed Forces of the Philippines or Philippine Constabulary, in which the
person under sentence is held, a court of the kind that imposed the sentence, and the same power
may be exercised by superior military authority; but no sentence approved or confirmed by the
President shall be remitted or mitigated by any other authority, and no approved sentence of loss of
files by an officer shall be remitted or mitigated by any authority inferior to the President, except as
provided in Article 52.

When empowered by the President to do so, the commanding general of the Army in the field or the
area commander may approve or confirm and commute (but not approve or confirm without
commuting), mitigate, or remit and then order executed as commuted, mitigated, or remitted any
sentence which under those Articles requires the confirmation of the President before the same may
be executed. (As amended by Republic Act No. 242).

Thus, the power of the President to confirm, mitigate and remit a sentence of erring military
personnel is a clear recognition of the superiority of civilian authority over the military. However,
although the law (Articles of War) which conferred those powers to the President is silent as to the
deduction of the period of preventive confinement to the penalty imposed, as discussed earlier, such
is also the right of an accused provided for by Article 29 of the RPC.

As to petitioner's contention that his right to a speedy disposition of his case was violated, this Court
finds the same to be without merit.

No less than our Constitution guarantees the right not just to a speedy trial but to the speedy
disposition of cases.44 However, it needs to be underscored that speedy disposition is a relative and
flexible concept. A mere mathematical reckoning of the time involved is not sufficient. Particular
regard must be taken of the facts and circumstances peculiar to each case.45 In determining whether
or not the right to the speedy disposition of cases has been violated, this Court has laid down the
following guidelines: (1) the length of the delay; (2) the reasons for such delay; (3) the assertion or
failure to assert such right by the accused; and (4) the prejudice caused by the delay.46

In this case, there was no allegation, whatsoever of any delay during the trial. What is being
questioned by petitioner is the delay in the confirmation of sentence by the President. Basically, the
case has already been decided by the General Court Martial and has also been reviewed by the
proper reviewing authorities without any delay. The only thing missing then was the confirmation of
sentence by the President. The records do not show that, in those six (6) years from the time the
decision of the General Court Martial was promulgated until the sentence was finally confirmed by
the President, petitioner took any positive action to assert his right to a speedy disposition of his
case. This is akin to what happened in Guerrero v. Court of Appeals,47 where, in spite of the lapse of
more than ten years of delay, the Court still held that the petitioner could not rightfully complain of
delay violative of his right to speedy trial or disposition of his case, since he was part of the reason
for the failure of his case to move on towards its ultimate resolution. The Court held, inter alia:

In the case before us, the petitioner merely sat and waited after the case was submitted for
resolution in 1979. It was only in 1989 when the case below was reraffled from the RTC of Caloocan
City to the RTC of Navotas-Malabon and only after respondent trial judge of the latter court ordered
on March 14, 1990 the parties to follow-up and complete the transcript of stenographic notes that
matters started to get moving towards a resolution of the case. More importantly, it was only after the
new trial judge reset the retaking of the testimonies to November 9, 1990 because of petitioner's
absence during the original setting on October 24, 1990 that the accused suddenly became zealous
of safeguarding his right to speedy trial and disposition.
 xxxx

In the present case, there is no question that petitioner raised the violation against his own right to
speedy disposition only when the respondent trial judge reset the case for rehearing. It is fair to
assume that he would have just continued to sleep on his right − a situation amounting to laches −
had the respondent judge not taken the initiative of determining the non-completion of the records
and of ordering the remedy precisely so he could dispose of the case. The matter could have taken
a different dimension if during all those ten years between 1979 when accused filed his
memorandum and 1989 when the case was reraffled, the accused showed signs of asserting his
right which was granted him in 1987 when the new constitution took effect, or at least made some
overt act (like a motion for early disposition or a motion to compel the stenographer to transcribe
stenographic notes) that he was not waiving it. As it is, his silence would have to be interpreted as a
waiver of such right.

While this Court recognizes the right to speedy disposition quite distinctly from the right to a speedy
trial, and although this Court has always zealously espoused protection from oppressive and
vexatious delays not attributable to the party involved, at the same time, we hold that a party's
individual rights should not work against and preclude the people's equally important right to public
justice. In the instant case, three people died as a result of the crash of the airplane that the accused
was flying. It appears to us that the delay in the disposition of the case prejudiced not just the
accused but the people as well. Since the accused has completely failed to assert his right
seasonably and inasmuch as the respondent judge was not in a position to dispose of the case on
the merits due to the absence of factual basis, we hold it proper and equitable to give the parties fair
opportunity to obtain (and the court to dispense) substantial justice in the premises.48

Time runs against the slothful and those who neglect their rights.49 In fact, the delay in the
confirmation of his sentence was to his own advantage, because without the confirmation from the
President, his sentence cannot be served.

Anent petitioner's other arguments, the same are already rendered moot and academic due to the
above discussions. 1âwphi1

Grave abuse of discretion means such capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction. Mere abuse of discretion is not enough. It must be grave abuse of
discretion, as when the power is exercised in an arbitrary or despotic manner by reason of passion
or personal hostility, and must be so patent and so gross as to amount to an evasion of a positive
duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.50 Thus,
applying, the earlier disquisitions, this Court finds that the Office of the President did not commit any
grave abuse of discretion in issuing the Confirmation of Sentence in question.

WHEREFORE, the Petition for Certiorari dated September 29, 2011 of Major General Carlos F.
Garcia, AFP (Ret.) is hereby DISMISSED. However, applying the provisions of Article 29 of the
Revised Penal Code, the time within which the petitioner was under preventive confinement should
be credited to the sentence confirmed by the Office of the President, subject to the conditions set
forth by the same law.

SO ORDERED.
G.R. No. 148208 December 15, 2004

CENTRAL BANK (now Bangko Sentral ng Pilipinas) EMPLOYEES ASSOCIATION,

INC., petitioner,
vs.
BANGKO SENTRAL NG PILIPINAS and the EXECUTIVE SECRETARY, respondents.

DECISION

PUNO, J.:

Can a provision of law, initially valid, become subsequently unconstitutional, on the ground that
its continued operation would violate the equal protection of the law? We hold that with the
passage of the subsequent laws amending the charter of seven (7) other governmental financial
institutions (GFIs), the continued operation of the last proviso of Section 15(c), Article II of Republic
Act (R.A.) No. 7653, constitutes invidious discrimination on the 2,994 rank-and-file employees of
the Bangko Sentral ng Pilipinas (BSP).

I.

The Case

First the facts.

On July 3, 1993, R.A. No. 7653 (the New Central Bank Act) took effect. It abolished the old Central
Bank of the Philippines, and created a new BSP.

On June 8, 2001, almost eight years after the effectivity of R.A. No. 7653, petitioner Central Bank
(now BSP) Employees Association, Inc., filed a petition for prohibition against BSP and the
Executive Secretary of the Office of the President, to restrain respondents from further implementing
the last proviso in Section 15(c), Article II of R.A. No. 7653, on the ground that it is unconstitutional.

Article II, Section 15(c) of R.A. No. 7653 provides:

Section 15. Exercise of Authority - In the exercise of its authority, the Monetary Board shall:

xxx xxx xxx

(c) establish a human resource management system which shall govern the selection, hiring,
appointment, transfer, promotion, or dismissal of all personnel. Such system shall aim to
establish professionalism and excellence at all levels of the Bangko Sentral in accordance
with sound principles of management.
 A compensation structure, based on job evaluation studies and wage surveys and subject to
the Board's approval, shall be instituted as an integral component of the Bangko
Sentral's human resource development program: Provided, That the Monetary Board shall
make its own system conform as closely as possible with the principles provided for under
Republic Act No. 6758 [Salary Standardization Act]. Provided, however, That
compensation and wage structure of employees whose positions fall under salary
grade 19 and below shall be in accordance with the rates prescribed under Republic
Act No. 6758. [emphasis supplied]

The thrust of petitioner's challenge is that the above proviso makes

an unconstitutional cut between two classes of employees in the BSP, viz: (1) the BSP officers or
those exempted from the coverage of the Salary Standardization Law (SSL) (exempt class); and (2)
the rank-and-file (Salary Grade [SG] 19 and below), or those not exempted from the coverage of
the SSL (non-exempt class). It is contended that this classification is "a classic case of class
legislation," allegedly not based on substantial distinctions which make real differences, but solely on
the SG of the BSP personnel's position. Petitioner also claims that it is not germane to the purposes
of Section 15(c), Article II of R.A. No. 7653, the most important of which is to establish
professionalism and excellence at all levels in the BSP.1 Petitioner offers the following sub-set of
arguments:

a. the legislative history of R.A. No. 7653 shows that the questioned proviso does not appear
in the original and amended versions of House Bill No. 7037, nor in the original version of
Senate Bill No. 1235; 2

b. subjecting the compensation of the BSP rank-and-file employees to the rate prescribed by
the SSL actually defeats the purpose of the law3 of establishing professionalism and
excellence at all levels in the BSP; 4 (emphasis supplied)

c. the assailed proviso was the product of amendments introduced during the deliberation of
Senate Bill No. 1235, without showing its relevance to the objectives of the law, and even
admitted by one senator as discriminatory against low-salaried employees of the BSP;5

d. GSIS, LBP, DBP and SSS personnel are all exempted from the coverage of the SSL; thus
within the class of rank-and-file personnel of government financial institutions (GFIs), the
BSP rank-and-file are also discriminated upon;6 and

e. the assailed proviso has caused the demoralization among the BSP rank-and-file and
resulted in the gross disparity between their compensation and that of the BSP officers'.7

In sum, petitioner posits that the classification is not reasonable but arbitrary and capricious, and
violates the equal protection clause of the Constitution.8 Petitioner also stresses: (a) that R.A. No.
7653 has a separability clause, which will allow the declaration of the unconstitutionality of
the proviso in question without affecting the other provisions; and (b) the urgency and propriety of
the petition, as some 2,994 BSP rank-and-file employees have been prejudiced since 1994 when
the proviso was implemented. Petitioner concludes that: (1) since the inequitable proviso has no
force and effect of law, respondents' implementation of such amounts to lack of jurisdiction; and (2) it
has no appeal nor any other plain, speedy and adequate remedy in the ordinary course except
through this petition for prohibition, which this Court should take cognizance of, considering the
transcendental importance of the legal issue involved.9

Respondent BSP, in its comment,10 contends that the provision does not violate the equal protection
clause and can stand the constitutional test, provided it is construed in harmony with other
provisions of the same law, such as "fiscal and administrative autonomy of BSP," and the mandate
of the Monetary Board to "establish professionalism and excellence at all levels in accordance with
sound principles of management."

The Solicitor General, on behalf of respondent Executive Secretary, also defends the validity of the
provision. Quite simplistically, he argues that the classification is based on actual and real
differentiation, even as it adheres to the enunciated policy of R.A. No. 7653 to establish
professionalism and excellence within the BSP subject to prevailing laws and policies of the national
government.11

II.

Issue

Thus, the sole - albeit significant - issue to be resolved in this case is whether the last paragraph of
Section 15(c), Article II of R.A. No. 7653, runs afoul of the constitutional mandate that "No person
shall be. . . denied the equal protection of the laws."12

III.

Ruling

A. UNDER THE PRESENT STANDARDS OF EQUAL PROTECTION,

SECTION 15(c), ARTICLE II OF R.A. NO. 7653 IS VALID.

Jurisprudential standards for equal protection challenges indubitably show that the classification
created by the questioned proviso, on its face and in its operation, bears no constitutional infirmities.

It is settled in constitutional law that the "equal protection" clause does not prevent the Legislature
from establishing classes of individuals or objects upon which different rules shall operate - so long
as the classification is not unreasonable. As held in Victoriano v. Elizalde Rope Workers'
Union,13 and reiterated in a long line of cases:14

The guaranty of equal protection of the laws is not a guaranty of equality in the application of
the laws upon all citizens of the state. It is not, therefore, a requirement, in order to avoid the
constitutional prohibition against inequality, that every man, woman and child should be
affected alike by a statute. Equality of operation of statutes does not mean indiscriminate
operation on persons merely as such, but on persons according to the circumstances
surrounding them. It guarantees equality, not identity of rights. The Constitution does not
require that things which are different in fact be treated in law as though they were the same.
The equal protection clause does not forbid discrimination as to things that are different. It
does not prohibit legislation which is limited either in the object to which it is directed or by
the territory within which it is to operate.

The equal protection of the laws clause of the Constitution allows classification. Classification
in law, as in the other departments of knowledge or practice, is the grouping of things in
speculation or practice because they agree with one another in certain particulars. A law is
not invalid because of simple inequality. The very idea of classification is that of inequality,
so that it goes without saying that the mere fact of inequality in no manner determines the
matter of constitutionality. All that is required of a valid classification is that it be reasonable,
which means that the classification should be based on substantial distinctions which make
 for real differences, that it must be germane to the purpose of the law; that it must not be
limited to existing conditions only; and that it must apply equally to each member of the
class. This Court has held that the standard is satisfied if the classification or distinction is
based on a reasonable foundation or rational basis and is not palpably arbitrary.

In the exercise of its power to make classifications for the purpose of enacting laws over
matters within its jurisdiction, the state is recognized as enjoying a wide range of discretion. It
is not necessary that the classification be based on scientific or marked differences of things
or in their relation. Neither is it necessary that the classification be made with mathematical
nicety. Hence, legislative classification may in many cases properly rest on narrow
distinctions, for the equal protection guaranty does not preclude the legislature from
recognizing degrees of evil or harm, and legislation is addressed to evils as they may
appear. (citations omitted)

Congress is allowed a wide leeway in providing for a valid classification.15 The equal protection
clause is not infringed by legislation which applies only to those persons falling within a specified
class.16 If the groupings are characterized by substantial distinctions that make real differences, one
class may be treated and regulated differently from another.17 The classification must also be
germane to the purpose of the law and must apply to all those belonging to the same class.18

In the case at bar, it is clear in the legislative deliberations that the exemption of officers (SG 20 and
above) from the SSL was intended to address the BSP's lack of competitiveness in terms of
attracting competent officers and executives. It was not intended to discriminate against the rank-
and-file. If the end-result did in fact lead to a disparity of treatment between the officers and the rank-
and-file in terms of salaries and benefits, the discrimination or distinction has a rational basis and is
not palpably, purely, and entirely arbitrary in the legislative sense. 19

That the provision was a product of amendments introduced during the deliberation of the Senate
Bill does not detract from its validity. As early as 1947 and reiterated in subsequent cases,20 this
Court has subscribed to the conclusiveness of an enrolled bill to refuse invalidating a provision of
law, on the ground that the bill from which it originated contained no such provision and was merely
inserted by the bicameral conference committee of both Houses.

Moreover, it is a fundamental and familiar teaching that all reasonable doubts should be resolved in
favor of the constitutionality of a statute.21 An act of the legislature, approved by the executive, is
presumed to be within constitutional limitations.22 To justify the nullification of a law, there must be a
clear and unequivocal breach of the Constitution, not a doubtful and equivocal breach.23

B. THE ENACTMENT, HOWEVER, OF SUBSEQUENT LAWS -

EXEMPTING ALL OTHER RANK-AND-FILE EMPLOYEES
OF GFIs FROM THE SSL - RENDERS THE CONTINUED
APPLICATION OF THE CHALLENGED PROVISION
A VIOLATION OF THE EQUAL PROTECTION CLAUSE.

While R.A. No. 7653 started as a valid measure well within the legislature's power, we hold that
the enactment of subsequent laws exempting all rank-and-file employees of other GFIs
leeched all validity out of the challenged proviso.

1. The concept of relative constitutionality.

The constitutionality of a statute cannot, in every instance, be determined by a mere comparison of
its provisions with applicable provisions of the Constitution, since the statute may be constitutionally
valid as applied to one set of facts and invalid in its application to another.24

A statute valid at one time may become void at another time because of altered
circumstances.25 Thus, if a statute in its practical operation becomes arbitrary or confiscatory, its
validity, even though affirmed by a former adjudication, is open to inquiry and investigation in the
light of changed conditions.26

Demonstrative of this doctrine is Vernon Park Realty v. City of Mount Vernon,27 where the Court of
Appeals of New York declared as unreasonable and arbitrary a zoning ordinance which placed the
plaintiff's property in a residential district, although it was located in the center of a business area.
Later amendments to the ordinance then prohibited the use of the property except for parking and
storage of automobiles, and service station within a parking area. The Court found the ordinance to
constitute an invasion of property rights which was contrary to constitutional due process. It ruled:

While the common council has the unquestioned right to enact zoning laws respecting the
use of property in accordance with a well-considered and comprehensive plan designed to
promote public health, safety and general welfare, such power is subject to the constitutional
limitation that it may not be exerted arbitrarily or unreasonably and this is so whenever the
zoning ordinance precludes the use of the property for any purpose for which it is reasonably
adapted. By the same token, an ordinance valid when adopted will nevertheless be
stricken down as invalid when, at a later time, its operation under changed conditions
proves confiscatory such, for instance, as when the greater part of its value is destroyed,
for which the courts will afford relief in an appropriate case.28 (citations omitted, emphasis
supplied)

In the Philippine setting, this Court declared the continued enforcement of a valid law as
unconstitutional as a consequence of significant changes in circumstances. Rutter v.
Esteban29 upheld the constitutionality of the moratorium law - its enactment and operation being a
valid exercise by the State of its police power30 - but also ruled that the continued enforcement of
the otherwise valid law would be unreasonable and oppressive. It noted the subsequent
changes in the country's business, industry and agriculture. Thus, the law was set aside because its
continued operation would be grossly discriminatory and lead to the oppression of the creditors. The
landmark ruling states:31

The question now to be determined is, is the period of eight (8) years which Republic Act
No. 342 grants to debtors of a monetary obligation contracted before the last global war and
who is a war sufferer with a claim duly approved by the Philippine War Damage Commission
reasonable under the present circumstances?

It should be noted that Republic Act No. 342 only extends relief to debtors of prewar
obligations who suffered from the ravages of the last war and who filed a claim for their
losses with the Philippine War Damage Commission. It is therein provided that said
obligation shall not be due and demandable for a period of eight (8) years from and after
settlement of the claim filed by the debtor with said Commission. The purpose of the law is to
afford to prewar debtors an opportunity to rehabilitate themselves by giving them a
reasonable time within which to pay their prewar debts so as to prevent them from being
victimized by their creditors. While it is admitted in said law that since liberation conditions
have gradually returned to normal, this is not so with regard to those who have suffered the
ravages of war and so it was therein declared as a policy that as to them the debt
moratorium should be continued in force (Section 1).
 But we should not lose sight of the fact that these obligations had been pending since 1945
as a result of the issuance of Executive Orders Nos. 25 and 32 and at present their
enforcement is still inhibited because of the enactment of Republic Act No. 342 and would
continue to be unenforceable during the eight-year period granted to prewar debtors to afford
them an opportunity to rehabilitate themselves, which in plain language means that the
creditors would have to observe a vigil of at least twelve (12) years before they could effect a
liquidation of their investment dating as far back as 1941. his period seems to us
unreasonable, if not oppressive. While the purpose of Congress is plausible, and should be
commended, the relief accorded works injustice to creditors who are practically left at the
mercy of the debtors. Their hope to effect collection becomes extremely remote, more so if
the credits are unsecured. And the injustice is more patent when, under the law, the debtor is
not even required to pay interest during the operation of the relief, unlike similar statutes in
the United States.

xxx xxx xxx

In the face of the foregoing observations, and consistent with what we believe to be as the
only course dictated by justice, fairness and righteousness, we feel that the only way open to
us under the present circumstances is to declare that the continued operation and
enforcement of Republic Act No. 342 at the present time is unreasonable and
oppressive, and should not be prolonged a minute longer, and, therefore, the same
should be declared null and void and without effect. (emphasis supplied, citations
omitted)

2. Applicability of the equal protection clause.

In the realm of equal protection, the U.S. case of Atlantic Coast Line R. Co. v. Ivey32 is
illuminating. The Supreme Court of Florida ruled against the continued application of statutes
authorizing the recovery of double damages plus attorney's fees against railroad companies, for
animals killed on unfenced railroad right of way without proof of negligence. Competitive motor
carriers, though creating greater hazards, were not subjected to similar liability because they
were not yet in existence when the statutes were enacted. The Court ruled that the statutes
became invalid as denying "equal protection of the law," in view of changed conditions since their
enactment.

In another U.S. case, Louisville & N.R. Co. v. Faulkner,33 the Court of Appeals of Kentucky
declared unconstitutional a provision of a statute which imposed a duty upon a railroad company of
proving that it was free from negligence in the killing or injury of cattle by its engine or cars. This,
notwithstanding that the constitutionality of the statute, enacted in 1893, had been previously
sustained. Ruled the Court:

The constitutionality of such legislation was sustained because it applied to all similar
corporations and had for its object the safety of persons on a train and the protection of
property…. Of course, there were no automobiles in those days.
The subsequent inauguration and development of transportation by motor vehicles on the
public highways by common carriers of freight and passengers created even greater risks to
the safety of occupants of the vehicles and of danger of injury and death of domestic
animals. Yet, under the law the operators of that mode of competitive transportation are not
subject to the same extraordinary legal responsibility for killing such animals on the public
roads as are railroad companies for killing them on their private rights of way.
 The Supreme Court, speaking through Justice Brandeis in Nashville, C. & St. L. Ry. Co. v.
Walters, 294 U.S. 405, 55 S.Ct. 486, 488, 79 L.Ed. 949, stated, "A statute valid when
enacted may become invalid by change in the conditions to which it is applied. The
police power is subject to the constitutional limitation that it may not be exerted arbitrarily or
unreasonably." A number of prior opinions of that court are cited in support of the statement.
The State of Florida for many years had a statute, F.S.A. § 356.01 et seq. imposing
extraordinary and special duties upon railroad companies, among which was that a railroad
company was liable for double damages and an attorney's fee for killing livestock by a train
without the owner having to prove any act of negligence on the part of the carrier in the
operation of its train. In Atlantic Coast Line Railroad Co. v. Ivey, it was held that the changed
conditions brought about by motor vehicle transportation rendered the statute
unconstitutional since if a common carrier by motor vehicle had killed the same animal, the
owner would have been required to prove negligence in the operation of its equipment. Said
the court, "This certainly is not equal protection of the law."34 (emphasis supplied)

Echoes of these rulings resonate in our case law, viz:

[C]ourts are not confined to the language of the statute under challenge in determining
whether that statute has any discriminatory effect. A statute nondiscriminatory on its face
may be grossly discriminatory in its operation. Though the law itself be fair on its face
and impartial in appearance, yet, if it is applied and administered by public authority with an
evil eye and unequal hand, so as practically to make unjust and illegal discriminations
between persons in similar circumstances, material to their rights, the denial of equal justice
is still within the prohibition of the Constitution.35 (emphasis supplied, citations omitted)

[W]e see no difference between a law which denies equal protection and a law which
permits of such denial. A law may appear to be fair on its face and impartial in appearance,
yet, if it permits of unjust and illegal discrimination, it is within the constitutional prohibition…..
In other words, statutes may be adjudged unconstitutional because of their effect in
operation…. If a law has the effect of denying the equal protection of the law it is
unconstitutional. ….36 (emphasis supplied, citations omitted

3. Enactment of R.A. Nos. 7907 + 8282 + 8289 + 8291 + 8523 + 8763

+ 9302 = consequential unconstitutionality of challenged proviso.

According to petitioner, the last proviso of Section 15(c), Article II of R.A. No. 7653 is also violative of
the equal protection clause because after it was enacted, the charters of the GSIS, LBP, DBP and
SSS were also amended, but the personnel of the latter GFIs were all exempted from the coverage
of the SSL.37 Thus, within the class of rank-and-file personnel of GFIs, the BSP rank-and-file are also
discriminated upon.

Indeed, we take judicial notice that after the new BSP charter was enacted in 1993, Congress also
undertook the amendment of the charters of the GSIS, LBP, DBP and SSS, and three other GFIs,
from 1995 to 2004, viz:

1. R.A. No. 7907 (1995) for Land Bank of the Philippines (LBP);

2. R.A. No. 8282 (1997) for Social Security System (SSS);

3. R.A. No. 8289 (1997) for Small Business Guarantee and Finance Corporation, (SBGFC);

4. R.A. No. 8291 (1997) for Government Service Insurance System (GSIS);
 5. R.A. No. 8523 (1998) for Development Bank of the Philippines (DBP);

6. R.A. No. 8763 (2000) for Home Guaranty Corporation (HGC);38 and

7. R.A. No. 9302 (2004) for Philippine Deposit Insurance Corporation (PDIC).

It is noteworthy, as petitioner points out, that the subsequent charters of the seven other GFIs
share this common proviso: a blanket exemption of all their employees from the coverage of the
SSL, expressly or impliedly, as illustrated below:

1. LBP (R.A. No. 7907)

Section 10. Section 90 of [R.A. No. 3844] is hereby amended to read as follows:

Section 90. Personnel. -

xxx xxx xxx

All positions in the Bank shall be governed by a compensation, position classification system
and qualification standards approved by the Bank's Board of Directors based on a
comprehensive job analysis and audit of actual duties and responsibilities. The
compensation plan shall be comparable with the prevailing compensation plans in the private
sector and shall be subject to periodic review by the Board no more than once every two (2)
years without prejudice to yearly merit reviews or increases based on productivity and
profitability. The Bank shall therefore be exempt from existing laws, rules and
regulations on compensation, position classification and qualification standards. It
shall however endeavor to make its system conform as closely as possible with the
principles under Republic Act No. 6758. (emphasis supplied)

xxx xxx xxx

2. SSS (R.A. No. 8282)

Section 1. [Amending R.A. No. 1161, Section 3(c)]:

xxx xxx xxx

(c)The Commission, upon the recommendation of the SSS President, shall appoint an
actuary and such other personnel as may [be] deemed necessary; fix their reasonable
compensation, allowances and other benefits; prescribe their duties and establish such
methods and procedures as may be necessary to insure the efficient, honest and economical
administration of the provisions and purposes of this Act: Provided, however, That the
personnel of the SSS below the rank of Vice President shall be appointed by the SSS
President: Provided, further, That the personnel appointed by the SSS President, except
those below the rank of assistant manager, shall be subject to the confirmation by the
Commission; Provided further, That the personnel of the SSS shall be selected only from
civil service eligibles and be subject to civil service rules and regulations: Provided,
finally, That the SSS shall be exempt from the provisions of Republic Act No. 6758 and
Republic Act No. 7430. (emphasis supplied)

3. SBGFC (R.A. No. 8289)

 Section 8. [Amending R.A. No. 6977, Section 11]:

xxx xxx xxx

The Small Business Guarantee and Finance Corporation shall:

xxx xxx xxx

(e) notwithstanding the provisions of Republic Act No. 6758, and Compensation
Circular No. 10, series of 1989 issued by the Department of Budget and Management, the
Board of Directors of SBGFC shall have the authority to extend to the employees and
personnel thereof the allowance and fringe benefits similar to those extended to and
currently enjoyed by the employees and personnel of other government financial
institutions. (emphases supplied)

4. GSIS (R.A. No. 8291)

Section 1. [Amending Section 43(d)].

xxx xxx xxx

Sec. 43. Powers and Functions of the Board of Trustees. - The Board of Trustees shall have
the following powers and functions:

xxx xxx xxx

(d) upon the recommendation of the President and General Manager, to approve the GSIS'
organizational and administrative structures and staffing pattern, and to establish, fix, review,
revise and adjust the appropriate compensation package for the officers and employees of
the GSIS with reasonable allowances, incentives, bonuses, privileges and other benefits as
may be necessary or proper for the effective management, operation and administration of
the GSIS, which shall be exempt from Republic Act No. 6758, otherwise known as the
Salary Standardization Law and Republic Act No. 7430, otherwise known as the
Attrition Law. (emphasis supplied)

xxx xxx xxx

5. DBP (R.A. No. 8523)

Section 6. [Amending E.O. No. 81, Section 13]:

Section 13. Other Officers and Employees. - The Board of Directors shall provide for an
organization and staff of officers and employees of the Bank and upon recommendation of
the President of the Bank, fix their remunerations and other emoluments. All positions in the
Bank shall be governed by the compensation, position classification system and qualification
standards approved by the Board of Directors based on a comprehensive job analysis of
actual duties and responsibilities. The compensation plan shall be comparable with the
prevailing compensation plans in the private sector and shall be subject to periodic review by
the Board of Directors once every two (2) years, without prejudice to yearly merit or
increases based on the Bank's productivity and profitability. The Bank shall, therefore, be
exempt from existing laws, rules, and regulations on compensation, position
 classification and qualification standards. The Bank shall however, endeavor to make
its system conform as closely as possible with the principles under Compensation
and Position Classification Act of 1989 (Republic Act No. 6758, as
amended). (emphasis supplied)

6. HGC (R.A. No. 8763)

Section 9. Powers, Functions and Duties of the Board of Directors. - The Board shall have the
following powers, functions and duties:

xxx xxx xxx

(e) To create offices or positions necessary for the efficient management, operation and
administration of the Corporation: Provided, That all positions in the Home Guaranty
Corporation (HGC) shall be governed by a compensation and position classification system
and qualifications standards approved by the Corporation's Board of Directors based on a
comprehensive job analysis and audit of actual duties and responsibilities: Provided,
further, That the compensation plan shall be comparable with the prevailing
compensation plans in the private sector and which shall be exempt from Republic
Act No. 6758, otherwise known as the Salary Standardization Law, and from other
laws, rules and regulations on salaries and compensations; and to establish a Provident
Fund and determine the Corporation's and the employee's contributions to the Fund;
(emphasis supplied)

xxx xxx xxx

7. PDIC (R.A. No. 9302)

Section 2. Section 2 of [Republic Act No. 3591, as amended] is hereby further amended to read:

xxx xxx xxx

3.

xxx xxx xxx

A compensation structure, based on job evaluation studies and wage surveys and subject to
the Board's approval, shall be instituted as an integral component of the Corporation's
human resource development program: Provided, That all positions in the Corporation shall
be governed by a compensation, position classification system and qualification standards
approved by the Board based on a comprehensive job analysis and audit of actual duties
and responsibilities. The compensation plan shall be comparable with the prevailing
compensation plans of other government financial institutions and shall be subject to
review by the Board no more than once every two (2) years without prejudice to yearly merit
reviews or increases based on productivity and profitability. The Corporation shall
therefore be exempt from existing laws, rules and regulations on compensation,
position classification and qualification standards. It shall however endeavor to make its
system conform as closely as possible with the principles under Republic Act No. 6758, as
amended. (emphases supplied)
Thus, eleven years after the amendment of the BSP charter, the rank-and-file of seven other
GFIs were granted the exemption that was specifically denied to the rank-and-file of the
BSP. And as if to add insult to petitioner's injury, even the Securities and Exchange Commission
(SEC) was granted the same blanket exemption from the SSL in 2000! 39

The prior view on the constitutionality of R.A. No. 7653 was confined to an evaluation of its
classification between the rank-and-file and the officers of the BSP, found reasonable because
there were substantial distinctions that made real differences between the two classes.

The above-mentioned subsequent enactments, however, constitute significant changes in

circumstance that considerably alter the reasonability of the continued operation of the
last proviso of Section 15(c), Article II of Republic Act No. 7653, thereby exposing
the proviso to more serious scrutiny. This time, the scrutiny relates to the constitutionality of the
classification - albeit made indirectly as a consequence of the passage of eight other laws - between
the rank-and-file of the BSP and the seven other GFIs. The classification must not only be
reasonable, but must also apply equally to all members of the class. The proviso may be fair on
its face and impartial in appearance but it cannot be grossly discriminatory in its operation, so
as practically to make unjust distinctions between persons who are without differences.40

Stated differently, the second level of inquiry deals with the following questions: Given that Congress
chose to exempt other GFIs (aside the BSP) from the coverage of the SSL, can the exclusion of the
rank-and-file employees of the BSP stand constitutional scrutiny in the light of the fact that Congress
did not exclude the rank-and-file employees of the other GFIs? Is Congress' power to classify so
unbridled as to sanction unequal and discriminatory treatment, simply because the inequity
manifested itself, not instantly through a single overt act, but gradually and progressively, through
seven separate acts of Congress? Is the right to equal protection of the law bounded in time and
space that: (a) the right can only be invoked against a classification made directly and deliberately,
as opposed to a discrimination that arises indirectly, or as a consequence of several other acts; and
(b) is the legal analysis confined to determining the validity within the parameters of the statute or
ordinance (where the inclusion or exclusion is articulated), thereby proscribing any evaluation vis-à-
vis the grouping, or the lack thereof, among several similar enactments made over a period of time?

In this second level of scrutiny, the inequality of treatment cannot be justified on the mere assertion
that each exemption (granted to the seven other GFIs) rests "on a policy determination by the
legislature." All legislative enactments necessarily rest on a policy determination - even those
that have been declared to contravene the Constitution. Verily, if this could serve as a magic wand to
sustain the validity of a statute, then no due process and equal protection challenges would ever
prosper. There is nothing inherently sacrosanct in a policy determination made by Congress or by
the Executive; it cannot run riot and overrun the ramparts of protection of the Constitution.

In fine, the "policy determination" argument may support the inequality of treatment between the
rank-and-file and the officers of the BSP, but it cannot justify the inequality of treatment between
BSP rank-and-file and other GFIs' who are similarly situated. It fails to appreciate that what is at
issue in the second level of scrutiny is not the declared policy of each law per se, but the
oppressive results of Congress' inconsistent and unequal policy towards the BSP rank-and-file
and those of the seven other GFIs. At bottom, the second challenge to the constitutionality of
Section 15(c), Article II of Republic Act No. 7653 is premised precisely on the irrational
discriminatory policy adopted by Congress in its treatment of persons similarly situated. In
the field of equal protection, the guarantee that "no person shall be … denied the equal protection of
the laws" includes the prohibition against enacting laws that allow invidious discrimination, directly
or indirectly. If a law has the effect of denying the equal protection of the law, or permits such
denial, it is unconstitutional.41
It is against this standard that the disparate treatment of the BSP rank-and-file from the other GFIs
cannot stand judicial scrutiny. For as regards the exemption from the coverage of the SSL, there
exist no substantial distinctions so as to differentiate, the BSP rank-and-file from the other rank-and-
file of the seven GFIs. On the contrary, our legal history shows that GFIs have long been
recognized as comprising one distinct class, separate from other governmental entities.

Before the SSL, Presidential Decree (P.D.) No. 985 (1976) declared it as a State policy (1) to
provide equal pay for substantially equal work, and (2) to base differences in pay upon substantive
differences in duties and responsibilities, and qualification requirements of the positions. P.D. No.
985 was passed to address disparities in pay among similar or comparable positions which had
given rise to dissension among government employees. But even then, GFIs and government-
owned and/or controlled corporations (GOCCs) were already identified as a distinct class
among government employees. Thus, Section 2 also provided, "[t]hat notwithstanding a
standardized salary system established for all employees, additional financial incentives may be
established by government corporation and financial institutions for their employees to be supported
fully from their corporate funds and for such technical positions as may be approved by the
President in critical government agencies."42

The same favored treatment is made for the GFIs and the GOCCs under the SSL. Section 3(b)
provides that one of the principles governing the Compensation and Position Classification System
of the Government is that: "[b]asic compensation for all personnel in the government and
government-owned or controlled corporations and financial institutions shall generally be
comparable with those in the private sector doing comparable work, and must be in accordance with
prevailing laws on minimum wages."

Thus, the BSP and all other GFIs and GOCCs were under the unified Compensation and Position
Classification System of the SSL,43 but rates of pay under the SSL were determined on the basis of,
among others, prevailing rates in the private sector for comparable work. Notably, the Compensation
and Position Classification System was to be governed by the following principles: (a) just and
equitable wages, with the ratio of compensation between pay distinctions maintained at equitable
levels;44 and (b) basic compensation generally comparable with the private sector, in accordance with
prevailing laws on minimum wages.45 Also, the Department of Budget and Management was directed
to use, as guide for preparing the Index of Occupational Services, the Benchmark Position
Schedule, and the following factors:46

(1) the education and experience required to perform the duties and responsibilities of the
positions;

(2) the nature and complexity of the work to be performed;

(3) the kind of supervision received;

(4) mental and/or physical strain required in the completion of the work;

(5) nature and extent of internal and external relationships;

(6) kind of supervision exercised;

(7) decision-making responsibility;

(8) responsibility for accuracy of records and reports;

 (9) accountability for funds, properties and equipment; and

(10) hardship, hazard and personal risk involved in the job.

The Benchmark Position Schedule enumerates the position titles that fall within Salary Grades 1 to
20.

Clearly, under R.A. No. 6758, the rank-and-file of all GFIs were similarly situated in all aspects
pertaining to compensation and position classification, in consonance with Section 5, Article IX-B of
the 1997 Constitution.47

Then came the enactment of the amended charter of the BSP, implicitly exempting the Monetary
Board from the SSL by giving it express authority to determine and institute its own compensation
and wage structure. However, employees whose positions fall under SG 19 and below were
specifically limited to the rates prescribed under the SSL.

Subsequent amendments to the charters of other GFIs followed. Significantly, each government
financial institution (GFI) was not only expressly authorized to determine and institute its own
compensation and wage structure, but also explicitly exempted - without distinction as to salary
grade or position - all employees of the GFI from the SSL.

It has been proffered that legislative deliberations justify the grant or withdrawal of exemption from
the SSL, based on the perceived need "to fulfill the mandate of the institution concerned considering,
among others, that: (1) the GOCC or GFI is essentially proprietary in character; (2) the GOCC or GFI
is in direct competition with their [sic] counterparts in the private sector, not only in terms of the
provisions of goods or services, but also in terms of hiring and retaining competent personnel; and
(3) the GOCC or GFI are or were [sic] experiencing difficulties filling up plantilla positions with
competent personnel and/or retaining these personnel. The need for the scope of exemption
necessarily varies with the particular circumstances of each institution, and the corresponding
variance in the benefits received by the employees is merely incidental."

The fragility of this argument is manifest. First, the BSP is the central monetary authority,48 and
the banker of the government and all its political subdivisions.49 It has the sole power and
authority to issue currency;50 provide policy directions in the areas of money, banking, and credit; and
supervise banks and regulate finance companies and non-bank financial institutions performing
quasi-banking functions, including the exempted GFIs.51 Hence, the argument that the rank-and-file
employees of the seven GFIs were exempted because of the importance of their institution's
mandate cannot stand any more than an empty sack can stand.

Second, it is certainly misleading to say that "the need for the scope of exemption necessarily varies
with the particular circumstances of each institution." Nowhere in the deliberations is there a cogent
basis for the exclusion of the BSP rank-and-file from the exemption which was granted to the rank-
and-file of the other GFIs and the SEC. As point in fact, the BSP and the seven GFIs are similarly
situated in so far as Congress deemed it necessary for these institutions to be exempted from the
SSL. True, the SSL-exemption of the BSP and the seven GFIs was granted in the amended charters
of each GFI, enacted separately and over a period of time. But it bears emphasis that, while each
GFI has a mandate different and distinct from that of another, the deliberations show that the raison
d'être of the SSL-exemption was inextricably linked to and for the most part based on factors
common to the eight GFIs, i.e., (1) the pivotal role they play in the economy; (2) the necessity of
hiring and retaining qualified and effective personnel to carry out the GFI's mandate; and (3) the
recognition that the compensation package of these GFIs is not competitive, and fall substantially
below industry standards. Considering further that (a) the BSP was the first GFI granted SSL
exemption; and (b) the subsequent exemptions of other GFIs did not distinguish between the officers
and the rank-and-file; it is patent that the classification made between the BSP rank-and-file and
those of the other seven GFIs was inadvertent, and NOT intended, i.e., it was not based on any
substantial distinction vis-à-vis the particular circumstances of each GFI. Moreover, the exemption
granted to two GFIs makes express reference to allowance and fringe benefits similar to those
extended to and currently enjoyed by the employees and personnel of other GFIs,52 underscoring that
GFIs are a particular class within the realm of government entities.

It is precisely this unpremeditated discrepancy in treatment of the rank-and-file of the BSP - made
manifest and glaring with each and every consequential grant of blanket exemption from the SSL to
the other GFIs - that cannot be rationalized or justified. Even more so, when the SEC - which is not a
GFI - was given leave to have a compensation plan that "shall be comparable with the prevailing
compensation plan in the [BSP] and other [GFIs],"53 then granted a blanket exemption from the SSL,
and its rank-and-file endowed a more preferred treatment than the rank-and-file of the BSP.

The violation to the equal protection clause becomes even more pronounced when we are faced
with this undeniable truth: that if Congress had enacted a law for the sole purpose of exempting the
eight GFIs from the coverage of the SSL, the exclusion of the BSP rank-and-file employees would
have been devoid of any substantial or material basis. It bears no moment, therefore, that the
unlawful discrimination was not a direct result arising from one law. "Nemo potest facere per alium
quod non potest facere per directum." No one is allowed to do indirectly what he is prohibited to do
directly.

It has also been proffered that "similarities alone are not sufficient to support the conclusion that
rank-and-file employees of the BSP may be lumped together with similar employees of the other
GOCCs for purposes of compensation, position classification and qualification standards. The fact
that certain persons have some attributes in common does not automatically make them members of
the same class with respect to a legislative classification." Cited is the ruling in Johnson v.
Robinson:54 "this finding of similarity ignores that a common characteristic shared by beneficiaries
and nonbeneficiaries alike, is not sufficient to invalidate a statute when other characteristics peculiar
to only one group rationally explain the statute's different treatment of the two groups."

The reference to Johnson is inapropos. In Johnson, the US Court sustained the validity of the
classification as there were quantitative and qualitative distinctions, expressly recognized by
Congress, which formed a rational basis for the classification limiting educational benefits to
military service veterans as a means of helping them readjust to civilian life. The Court listed the
peculiar characteristics as follows:

First, the disruption caused by military service is quantitatively greater than that caused by
alternative civilian service. A conscientious objector performing alternative service is
obligated to work for two years. Service in the Armed Forces, on the other hand, involves a
six-year commitment…

xxx xxx xxx

Second, the disruptions suffered by military veterans and alternative service performers are
qualitatively different. Military veterans suffer a far greater loss of personal freedom during
their service careers. Uprooted from civilian life, the military veteran becomes part of the
military establishment, subject to its discipline and potentially hazardous duty. Congress was
acutely aware of the peculiar disabilities caused by military service, in consequence of which
military servicemen have a special need for readjustment benefits…55 (citations omitted)
In the case at bar, it is precisely the fact that as regards the exemption from the SSL, there are
no characteristics peculiar only to the seven GFIs or their rank-and-file so as to justify the
exemption which BSP rank-and-file employees were denied (not to mention the anomaly of the
SEC getting one). The distinction made by the law is not only superficial,56 but also arbitrary. It is not
based on substantial distinctions that make real differences between the BSP rank-and-file and the
seven other GFIs.

Moreover, the issue in this case is not - as the dissenting opinion of Mme. Justice Carpio-Morales
would put it - whether "being an employee of a GOCC or GFI is reasonable and sufficient basis for
exemption" from R.A. No. 6758. It is Congress itself that distinguished the GFIs from other
government agencies, not once but eight times, through the enactment of R.A. Nos. 7653, 7907,
8282, 8289, 8291, 8523, 8763, and 9302. These laws may have created a "preferred sub-class
within government employees," but the present challenge is not directed at the wisdom of these
laws. Rather, it is a legal conundrum involving the exercise of legislative power, the validity of which
must be measured not only by looking at the specific exercise in and by itself (R.A. No. 7653), but
also as to the legal effects brought about by seven separate exercises - albeit indirectly and without
intent.

Thus, even if petitioner had not alleged "a comparable change in the factual milieu as regards the
compensation, position classification and qualification standards of the employees of the BSP
(whether of the executive level or of the rank-and-file) since the enactment of the new Central Bank
Act" is of no moment. In GSIS v. Montesclaros,57 this Court resolved the issue of constitutionality
notwithstanding that claimant had manifested that she was no longer interested in pursuing the case,
and even when the constitutionality of the said provision was not squarely raised as an issue,
because the issue involved not only the claimant but also others similarly situated and whose claims
GSIS would also deny based on the challenged proviso. The Court held that social justice and public
interest demanded the resolution of the constitutionality of the proviso. And so it is with the
challenged proviso in the case at bar.

It bears stressing that the exemption from the SSL is a "privilege" fully within the legislative
prerogative to give or deny. However, its subsequent grant to the rank-and-file of the seven other
GFIs and continued denial to the BSP rank-and-file employees breached the latter's right to equal
protection. In other words, while the granting of a privilege per se is a matter of policy exclusively
within the domain and prerogative of Congress, the validity or legality of the exercise of this
prerogative is subject to judicial review.58 So when the distinction made is superficial, and not based
on substantial distinctions that make real differences between those included and excluded, it
becomes a matter of arbitrariness that this Court has the duty and the power to correct.59 As held in
the United Kingdom case of Hooper v. Secretary of State for Work and Pensions,60 once the State
has chosen to confer benefits, "discrimination" contrary to law may occur where favorable treatment
already afforded to one group is refused to another, even though the State is under no obligation to
provide that favorable treatment. 61

The disparity of treatment between BSP rank-and-file and the rank-and-file of the other seven GFIs
definitely bears the unmistakable badge of invidious discrimination - no one can, with candor and
fairness, deny the discriminatory character of the subsequent blanket and total exemption of the
seven other GFIs from the SSL when such was withheld from the BSP. Alikes are being treated as
unalikes without any rational basis.

Again, it must be emphasized that the equal protection clause does not demand absolute
equality but it requires that all persons shall be treated alike, under like circumstances and
conditions both as to privileges conferred and liabilities enforced. Favoritism and undue
preference cannot be allowed. For the principle is that equal protection and security shall be given to
every person under circumstances which, if not identical, are analogous. If law be looked upon in
terms of burden or charges, those that fall within a class should be treated in the same fashion;
whatever restrictions cast on some in the group is equally binding on the rest.62

In light of the lack of real and substantial distinctions that would justify the unequal treatment
between the rank-and-file of BSP from the seven other GFIs, it is clear that the enactment of the
seven subsequent charters has rendered the continued application of the
challenged proviso anathema to the equal protection of the law, and the same should be declared as
an outlaw.

IV.

Equal Protection Under International Lens

In our jurisdiction, the standard and analysis of equal protection challenges in the main have
followed the "rational basis" test, coupled with a deferential attitude to legislative
classifications63 and a reluctance to invalidate a law unless there is a showing of a clear and
unequivocal breach of the Constitution. 64

A. Equal Protection in the United States

In contrast, jurisprudence in the U.S. has gone beyond the static "rational basis"
test. Professor Gunther highlights the development in equal protection jurisprudential analysis, to
wit: 65

Traditionally, equal protection supported only minimal judicial intervention in most contexts.
Ordinarily, the command of equal protection was only that government must not impose
differences in treatment "except upon some reasonable differentiation fairly related to the
object of regulation." The old variety of equal protection scrutiny focused solely on
the means used by the legislature: it insisted merely that the classification in the
statute reasonably relates to the legislative purpose. Unlike substantive due process,
equal protection scrutiny was not typically concerned with identifying "fundamental values"
and restraining legislative ends. And usually the rational classification requirement was
readily satisfied: the courts did not demand a tight fit between classification and purpose;
perfect congruence between means and ends was not required.

xxx xxx xxx

[From marginal intervention to major cutting edge: The Warren Court's "new equal
protection" and the two-tier approach.]

From its traditional modest role, equal protection burgeoned into a major intervention
tool during the Warren era, especially in the 1960s. The Warren Court did not abandon the
deferential ingredients of the old equal protection: in most areas of economic and social
legislation, the demands imposed by equal protection remained as minimal as ever…But the
Court launched an equal protection revolution by finding large new areas for strict rather than
deferential scrutiny. A sharply differentiated two-tier approach evolved by the late 1960s: in
addition to the deferential "old" equal protection, a "new" equal protection, connoting strict
scrutiny, arose…. The intensive review associated with the new equal protection imposed
two demands - a demand not only as to means but also one as to ends. Legislation
qualifying for strict scrutiny required a far closer fit between classification and statutory
purpose than the rough and ready flexibility traditionally tolerated by the old equal
protection: means had to be shown "necessary" to achieve statutory ends, not merely
"reasonably related" ones. Moreover, equal protection became a source of ends scrutiny
as well: legislation in the areas of the new equal protection had to be justified by "compelling"
state interests, not merely the wide spectrum of "legitimate" state ends.

The Warren Court identified the areas appropriate for strict scrutiny by searching for two
characteristics: the presence of a "suspect" classification; or an impact on "fundamental"
rights or interests. In the category of "suspect classifications," the Warren Court's major
contribution was to intensify the strict scrutiny in the traditionally interventionist area of racial
classifications. But other cases also suggested that there might be more other suspect
categories as well: illegitimacy and wealth for example. But it was the 'fundamental interests"
ingredient of the new equal protection that proved particularly dynamic, open-ended, and
amorphous….. [Other fundamental interests included voting, criminal appeals, and the right
of interstate travel ….]

xxx xxx xxx

The Burger Court and Equal Protection.

The Burger Court was reluctant to expand the scope of the new equal protection,
although its best established ingredient retains vitality. There was also mounting
discontent with the rigid two-tier formulations of the Warren Court's equal protection doctrine.
It was prepared to use the clause as an interventionist tool without resorting to the strict
language of the new equal protection…. [Among the fundamental interests identified during
this time were voting and access to the ballot, while "suspect" classifications included sex,
alienage and illegitimacy.]

xxx xxx xxx

Even while the two-tier scheme has often been adhered to in form, there has also been an
increasingly noticeable resistance to the sharp difference between deferential "old" and
interventionist "new" equal protection. A number of justices sought formulations that would
blur the sharp distinctions of the two-tiered approach or that would narrow the gap between
strict scrutiny and deferential review. The most elaborate attack came from Justice Marshall,
whose frequently stated position was developed most elaborately in his dissent in
the Rodriguez case: 66

The Court apparently seeks to establish [that] equal protection cases fall into one of two neat
categories which dictate the appropriate standard of review - strict scrutiny or mere
rationality. But this (sic) Court's [decisions] defy such easy categorization. A principled
reading of what this Court has done reveals that it has applied a spectrum of standards in
reviewing discrimination allegedly violative of the equal protection clause. This spectrum
clearly comprehends variations in the degree of care with which Court will scrutinize
particular classification, depending, I believe, on the constitutional and societal importance of
the interests adversely affected and the recognized invidiousness of the basis upon which
the particular classification is drawn.

Justice Marshall's "sliding scale" approach describes many of the modern decisions,
although it is a formulation that the majority refused to embrace. But the Burger Court's
results indicate at least two significant changes in equal protection
law: First, invocation of the "old" equal protection formula no longer signals, as it did with the
Warren Court, an extreme deference to legislative classifications and a virtually automatic
 validation of challenged statutes. Instead, several cases, even while voicing the minimal
"rationality" "hands-off" standards of the old equal protection, proceed to find the statute
unconstitutional. Second, in some areas the modern Court has put forth standards for
equal protection review that, while clearly more intensive than the deference of the "old"
equal protection, are less demanding than the strictness of the "new" equal protection. Sex
discrimination is the best established example of an "intermediate" level of review. Thus,
in one case, the Court said that "classifications by gender must
serve important governmental objectives and must be substantially related to
achievement of those objectives." That standard is "intermediate" with respect to both ends
and means: where ends must be "compelling" to survive strict scrutiny and merely
"legitimate" under the "old" mode, "important" objectives are required here; and where
means must be "necessary" under the "new" equal protection, and merely "rationally related"
under the "old" equal protection, they must be "substantially related" to survive the
"intermediate" level of review. (emphasis supplied, citations omitted)

B. Equal Protection in Europe

The United Kingdom and other members of the European Community have also gone forward
in discriminatory legislation and jurisprudence. Within the United Kingdom domestic law, the most
extensive list of protected grounds can be found in Article 14 of the European Convention on
Human Rights (ECHR). It prohibits discrimination on grounds such as "sex, race, colour, language,
religion, political or other opinion, national or social origin, association with a national minority,
property, birth or other status." This list is illustrative and not exhaustive. Discrimination on the
basis of race, sex and religion is regarded as grounds that require strict scrutiny. A further
indication that certain forms of discrimination are regarded as particularly suspect under the
Covenant can be gleaned from Article 4, which, while allowing states to derogate from certain
Covenant articles in times of national emergency, prohibits derogation by measures that discriminate
solely on the grounds of "race, colour, language, religion or social origin."67

Moreover, the European Court of Human Rights has developed a test of justification which varies
with the ground of discrimination. In the Belgian Linguistics case68 the European Court set the
standard of justification at a low level: discrimination would contravene the Convention only if it had
no legitimate aim, or there was no reasonable relationship of proportionality between the means
employed and the aim sought to be realised.69 But over the years, the European Court has
developed a hierarchy of grounds covered by Article 14 of the ECHR, a much higher level of
justification being required in respect of those regarded as "suspect" (sex, race, nationality,
illegitimacy, or sexual orientation) than of others. Thus, in Abdulaziz, 70 the European Court
declared that:

. . . [t]he advancement of the equality of the sexes is today a major goal in the member
States of the Council of Europe. This means that very weighty reasons would have to be
advanced before a difference of treatment on the ground of sex could be regarded as
compatible with the Convention.

And in Gaygusuz v. Austria,71 the European Court held that "very weighty reasons would have to
be put forward before the Court could regard a difference of treatment based exclusively on the
ground of nationality as compatible with the Convention."72 The European Court will then permit
States a very much narrower margin of appreciation in relation to discrimination on grounds of
sex, race, etc., in the application of the Convention rights than it will in relation to distinctions drawn
by states between, for example, large and small land-owners. 73

C. Equality under International Law

The principle of equality has long been recognized under international law. Article 1 of the
Universal Declaration of Human Rights proclaims that all human beings are born free and
equal in dignity and rights. Non-discrimination, together with equality before the law and equal
protection of the law without any discrimination, constitutes basic principles in the protection of
human rights. 74

Most, if not all, international human rights instruments include some prohibition on discrimination
and/or provisions about equality.75 The general international provisions pertinent to discrimination
and/or equality are the International Covenant on Civil and Political Rights (ICCPR);76 the
International Covenant on Economic, Social and Cultural Rights (ICESCR); the International
Convention on the Elimination of all Forms of Racial Discrimination (CERD);77 the Convention on the
Elimination of all Forms of Discrimination against Women (CEDAW); and the Convention on the
Rights of the Child (CRC).

In the broader international context, equality is also enshrined in regional instruments such as
the American Convention on Human Rights;78 the African Charter on Human and People's
Rights;79 the European Convention on Human Rights;80 the European Social Charter of 1961 and
revised Social Charter of 1996; and the European Union Charter of Rights (of particular importance
to European states). Even the Council of the League of Arab States has adopted the Arab Charter
on Human Rights in 1994, although it has yet to be ratified by the Member States of the League.81

The equality provisions in these instruments do not merely function as traditional "first
generation" rights, commonly viewed as concerned only with constraining rather than
requiring State action. Article 26 of the ICCPR requires "guarantee[s]" of "equal and effective
protection against discrimination" while Articles 1 and 14 of the American and European
Conventions oblige States Parties "to ensure ... the full and free exercise of [the rights guaranteed]
... without any discrimination" and to "secure without discrimination" the enjoyment of the rights
guaranteed.82 These provisions impose a measure of positive obligation on States Parties to take
steps to eradicate discrimination.

In the employment field, basic detailed minimum standards ensuring equality and prevention of
discrimination, are laid down in the ICESCR83 and in a very large number of Conventions
administered by the International Labour Organisation, a United Nations body. 84 Additionally, many
of the other international and regional human rights instruments have specific provisions relating to
employment.85

The United Nations Human Rights Committee has also gone beyond the earlier tendency to
view the prohibition against discrimination (Article 26) as confined to the ICCPR
rights.86 In Broeks87 and Zwaan-de Vries,88 the issue before the Committee was whether
discriminatory provisions in the Dutch Unemployment Benefits Act (WWV) fell within the scope of
Article 26. The Dutch government submitted that discrimination in social security benefit provision
was not within the scope of Article 26, as the right was contained in the ICESCR and not the ICCPR.
They accepted that Article 26 could go beyond the rights contained in the Covenant to other civil and
political rights, such as discrimination in the field of taxation, but contended that Article 26 did not
extend to the social, economic, and cultural rights contained in ICESCR. The Committee rejected
this argument. In its view, Article 26 applied to rights beyond the Covenant including the rights in
other international treaties such as the right to social security found in ICESCR:

Although Article 26 requires that legislation should prohibit discrimination, it does not of itself
contain any obligation with respect to the matters that may be provided for by legislation.
Thus it does not, for example, require any state to enact legislation to provide for social
 security. However, when such legislation is adopted in the exercise of a State's sovereign
power, then such legislation must comply with Article 26 of the Covenant.89

Breaches of the right to equal protection occur directly or indirectly. A classification may be struck
down if it has the purpose or effect of violating the right to equal protection. International law
recognizes that discrimination may occur indirectly, as the Human Rights Committee90 took into
account the definitions of discrimination adopted by CERD and CEDAW in declaring that:

. . . "discrimination" as used in the [ICCPR] should be understood to imply any distinction,

exclusion, restriction or preference which is based on any ground such as race, colour,
sex, language, religion, political or other opinion, national or social origin, property, birth
or other status, and which has the purpose or effect of nullifying or impairing the
recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and
freedoms. 91 (emphasis supplied)

Thus, the two-tier analysis made in the case at bar of the challenged provision, and its
conclusion of unconstitutionality by subsequent operation, are in cadence and in
consonance with the progressive trend of other jurisdictions and in international law. There
should be no hesitation in using the equal protection clause as a major cutting edge to eliminate
every conceivable irrational discrimination in our society. Indeed, the social justice imperatives in the
Constitution, coupled with the special status and protection afforded to labor, compel this approach.92

Apropos the special protection afforded to labor under our Constitution and international law, we
held in International School Alliance of Educators v. Quisumbing: 93

That public policy abhors inequality and discrimination is beyond contention. Our Constitution
and laws reflect the policy against these evils. The Constitution in the Article on Social
Justice and Human Rights exhorts Congress to "give highest priority to the enactment of
measures that protect and enhance the right of all people to human dignity, reduce social,
economic, and political inequalities." The very broad Article 19 of the Civil Code requires
every person, "in the exercise of his rights and in the performance of his duties, [to] act with
justice, give everyone his due, and observe honesty and good faith."

International law, which springs from general principles of law, likewise proscribes
discrimination. General principles of law include principles of equity, i.e., the general
principles of fairness and justice, based on the test of what is reasonable. The Universal
Declaration of Human Rights, the International Covenant on Economic, Social, and Cultural
Rights, the International Convention on the Elimination of All Forms of Racial Discrimination,
the Convention against Discrimination in Education, the Convention (No. 111) Concerning
Discrimination in Respect of Employment and Occupation - all embody the general principle
against discrimination, the very antithesis of fairness and justice. The Philippines, through its
Constitution, has incorporated this principle as part of its national laws.

In the workplace, where the relations between capital and labor are often skewed in favor of
capital, inequality and discrimination by the employer are all the more reprehensible.

The Constitution specifically provides that labor is entitled to "humane conditions of work."
These conditions are not restricted to the physical workplace - the factory, the office or the
field - but include as well the manner by which employers treat their employees.

The Constitution also directs the State to promote "equality of employment opportunities for
all." Similarly, the Labor Code provides that the State shall "ensure equal work opportunities
 regardless of sex, race or creed." It would be an affront to both the spirit and letter of these
provisions if the State, in spite of its primordial obligation to promote and ensure equal
employment opportunities, closes its eyes to unequal and discriminatory terms and
conditions of employment.

xxx xxx xxx

Notably, the International Covenant on Economic, Social, and Cultural Rights, in Article 7
thereof, provides:

The States Parties to the present Covenant recognize the right of everyone to the enjoyment
of just and [favorable] conditions of work, which ensure, in particular:

a. Remuneration which provides all workers, as a minimum, with:

i. Fair wages and equal remuneration for work of equal value without
distinction of any kind, in particular women being guaranteed conditions of
work not inferior to those enjoyed by men, with equal pay for equal work;

xxx xxx xxx

The foregoing provisions impregnably institutionalize in this jurisdiction the long honored
legal truism of "equal pay for equal work." Persons who work with substantially equal
qualifications, skill, effort and responsibility, under similar conditions, should be paid similar
salaries. (citations omitted)

Congress retains its wide discretion in providing for a valid classification, and its policies should be
accorded recognition and respect by the courts of justice except when they run afoul of the
Constitution.94 The deference stops where the classification violates a fundamental right, or
prejudices persons accorded special protection by the Constitution. When these violations
arise, this Court must discharge its primary role as the vanguard of constitutional guaranties, and
require a stricter and more exacting adherence to constitutional limitations. Rational basis
should not suffice.

Admittedly, the view that prejudice to persons accorded special protection by the Constitution
requires a stricter judicial scrutiny finds no support in American or English jurisprudence.
Nevertheless, these foreign decisions and authorities are not per se controlling in this jurisdiction. At
best, they are persuasive and have been used to support many of our decisions.95 We should not
place undue and fawning reliance upon them and regard them as indispensable mental crutches
without which we cannot come to our own decisions through the employment of our own
endowments. We live in a different ambience and must decide our own problems in the light of our
own interests and needs, and of our qualities and even idiosyncrasies as a people, and always with
our own concept of law and justice.96 Our laws must be construed in accordance with the intention of
our own lawmakers and such intent may be deduced from the language of each law and the context
of other local legislation related thereto. More importantly, they must be construed to serve our own
public interest which is the be-all and the end-all of all our laws. And it need not be stressed that our
public interest is distinct and different from others.97

In the 2003 case of Francisco v. House of Representatives, this Court has stated that: "[A]merican
jurisprudence and authorities, much less the American Constitution, are of dubious application for
these are no longer controlling within our jurisdiction and have only limited persuasive merit insofar
as Philippine constitutional law is concerned....[I]n resolving constitutional disputes, [this Court]
should not be beguiled by foreign jurisprudence some of which are hardly applicable because they
have been dictated by different constitutional settings and needs."98 Indeed, although the Philippine
Constitution can trace its origins to that of the United States, their paths of development have long
since diverged. 99

Further, the quest for a better and more "equal" world calls for the use of equal protection as a tool of
effective judicial intervention.

Equality is one ideal which cries out for bold attention and action in the Constitution. The
Preamble proclaims "equality" as an ideal precisely in protest against crushing inequities in
Philippine society. The command to promote social justice in Article II, Section 10, in "all
phases of national development," further explicitated in Article XIII, are clear commands to
the State to take affirmative action in the direction of greater equality.… [T]here is thus in the
Philippine Constitution no lack of doctrinal support for a more vigorous state effort towards
achieving a reasonable measure of equality.100

Our present Constitution has gone further in guaranteeing vital social and economic rights to
marginalized groups of society, including labor.101 Under the policy of social justice, the law bends
over backward to accommodate the interests of the working class on the humane justification that
those with less privilege in life should have more in law.102 And the obligation to afford protection to
labor is incumbent not only on the legislative and executive branches but also on the judiciary to
translate this pledge into a living reality.103 Social justice calls for the humanization of laws and the
equalization of social and economic forces by the State so that justice in its rational and objectively
secular conception may at least be approximated.104

V.

A Final Word

Finally, concerns have been raised as to the propriety of a ruling voiding the challenged provision. It
has been proffered that the remedy of petitioner is not with this Court, but with Congress, which
alone has the power to erase any inequity perpetrated by R.A. No. 7653. Indeed, a bill proposing the
exemption of the BSP rank-and-file from the SSL has supposedly been filed.

Under most circumstances, the Court will exercise judicial restraint in deciding questions of
constitutionality, recognizing the broad discretion given to Congress in exercising its legislative
power. Judicial scrutiny would be based on the "rational basis" test, and the legislative discretion
would be given deferential treatment. 105

But if the challenge to the statute is premised on the denial of a fundamental right, or the
perpetuation of prejudice against persons favored by the Constitution with special
protection, judicial scrutiny ought to be more strict. A weak and watered down view would call
for the abdication of this Court's solemn duty to strike down any law repugnant to the Constitution
and the rights it enshrines. This is true whether the actor committing the unconstitutional act is a
private person or the government itself or one of its instrumentalities. Oppressive acts will be struck
down regardless of the character or nature of the actor. 106

Accordingly, when the grant of power is qualified, conditional or subject to limitations, the
issue on whether or not the prescribed qualifications or conditions have been met, or the
limitations respected, is justiciable or non-political, the crux of the problem being one of
legality or validity of the contested act, not its wisdom. Otherwise, said qualifications,
conditions or limitations - particularly those prescribed or imposed by the Constitution - would
 be set at naught. What is more, the judicial inquiry into such issue and the settlement thereof
are the main functions of courts of justice under the Presidential form of government adopted
in our 1935 Constitution, and the system of checks and balances, one of its basic predicates.
As a consequence, We have neither the authority nor the discretion to decline passing
upon said issue, but are under the ineluctable obligation - made particularly more
exacting and peremptory by our oath, as members of the highest Court of the land, to
support and defend the Constitution - to settle it. This explains why, in Miller v. Johnson,
it was held that courts have a "duty, rather than a power", to determine whether another
branch of the government has "kept within constitutional limits." Not satisfied with this
postulate, the court went farther and stressed that, if the Constitution provides how it may be
amended - as it is in our 1935 Constitution - "then, unless the manner is followed, the
judiciary as the interpreter of that constitution, will declare the amendment invalid." In fact,
this very Court - speaking through Justice Laurel, an outstanding authority on Philippine
Constitutional Law, as well as one of the highly respected and foremost leaders of the
Convention that drafted the 1935 Constitution - declared, as early as July 15, 1936, that "(i)n
times of social disquietude or political excitement, the great landmarks of the Constitution are
apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial
department is the only constitutional organ which can be called upon to determine the proper
allocation of powers between the several departments" of the government.107 (citations
omitted; emphasis supplied)

In the case at bar, the challenged proviso operates on the basis of the salary grade or officer-
employee status. It is akin to a distinction based on economic class and status, with the higher
grades as recipients of a benefit specifically withheld from the lower grades. Officers of the BSP now
receive higher compensation packages that are competitive with the industry, while the poorer, low-
salaried employees are limited to the rates prescribed by the SSL. The implications are quite
disturbing: BSP rank-and-file employees are paid the strictly regimented rates of the SSL while
employees higher in rank - possessing higher and better education and opportunities for career
advancement - are given higher compensation packages to entice them to stay. Considering that
majority, if not all, the rank-and-file employees consist of people whose status and rank in life
are less and limited, especially in terms of job marketability, it is they - and not the officers -
who have the real economic and financial need for the adjustment This is in accord with the
policy of the Constitution "to free the people from poverty, provide adequate social services, extend
to them a decent standard of living, and improve the quality of life for all."108 Any act of Congress
that runs counter to this constitutional desideratum deserves strict scrutiny by this Court
before it can pass muster.

To be sure, the BSP rank-and-file employees merit greater concern from this Court. They
represent the more impotent rank-and-file government employees who, unlike employees in the
private sector, have no specific right to organize as a collective bargaining unit and negotiate for
better terms and conditions of employment, nor the power to hold a strike to protest unfair labor
practices. Not only are they impotent as a labor unit, but their efficacy to lobby in Congress is almost
nil as R.A. No. 7653 effectively isolated them from the other GFI rank-and-file in
compensation. These BSP rank-and-file employees represent the politically powerless and
they should not be compelled to seek a political solution to their unequal and iniquitous
treatment. Indeed, they have waited for many years for the legislature to act. They cannot be asked
to wait some more for discrimination cannot be given any waiting time. Unless the equal protection
clause of the Constitution is a mere platitude, it is the Court's duty to save them from reasonless
discrimination.

IN VIEW WHEREOF, we hold that the continued operation and implementation of the last proviso of
Section 15(c), Article II of Republic Act No. 7653 is unconstitutional.
G.R. No. 128222 June 17, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CHUA HO SAN @ TSAY HO SAN, accused-appellant.

DAVIDE, JR., C.J.:

Chua Ho San @ Tsay Ho San (hereafter CHUA) prays for his acquitttal and the reversal of the
judgment of 10 February 1997 of the Regional Trial Court (RTC) of San Fernando, La Union, Branch
66, finding him guilty of transporting, without appropriate legal authority, the regulated substance
methamphetamine hydrochloride, in violation of Section 15, 1 Article III of Republic Act No. 6425,
otherwise known as the Dangerous Drugs Act of 1972 as further amended by R.A. No. 7659,2 and
sentencing him to "die by lethal injection." In view thereof, the judgement was brought to this Court
for automatic review pursuant to Article 47 of the Revised Penal Code, as amended by Section 11 of
R.A. No. 7659.

In response to reports of rampant smuggling of firearms and other contraband, Jim Lagasca Cid
(hereafter CID), as Chief of Police of the Bacnotan Police Station, of La Union began patrolling the
Bacnotan coastline with his officers. While monitoring the coastal area of Barangay Bulala on 29
March 1995, he intercepted a radio call at around 12:45 p.m. from Barangay Captain Juan Almoite
(hereafter ALMOITE) of Barangay Tammocalao requesting police assistance regarding an unfamiliar
speedboat the latter had spotted. According to ALMOITE, the vessel looked different from the boats
ordinarily used by fisherfolk of the area and was poised to dock at Tammocalao shores. CID and six
of his men led by his Chief Investigator, SPO1 Reynoso Badua (hereafter BADUA), proceeded
forthwith to Tammocalao beach and there conferred with ALMOITE. CID then observed that the
speedboat ferried a lone male passenger. As it was routine for CID to deploy his men in strategic
places when dealing with similar situations, he ordered his men to take up positions thirty meters
from the coastline. When the speedboat landed, the male passenger alighted, and using both hands,
carried what appeared a multicolored strawbag. He then walked towards the road. By this time,
ALMOITE, CID and BADUA, the latter two conspicuous in their uniform and issued side-arms,
became suspicious of the man as he suddenly changed direction and broke into a run upon seeing
the approaching officers. BADUA, however, prevented the man from fleeing by holding on to his right
arm. Although CID introduced themselves as police officers, the man appeared impassive. Speaking
in English, CID then requested the man to open his bag, but he seem not to understand. CID thus
tried speaking Tagalog, then Ilocano, but still to no avail. CID then resorted to what he termed "sign
language;" he motioned with his hands for the man to open the bag. This time, the man apparently
understood and acceded to the request. A search of the bag yielded several transparent plastic
packets containing yellowish crystalline substances. CID then gestured to the man to close the bag,
which he did. As CID wished to proceed to the police station, he signaled the man to follow, but the
latter did not to comprehend. Hence, CID placed his arm around the shoulders of the man and
escorted the latter to the police headquarters.

At the police station, CID surmised, after having observed the facial features of the man, that he was
probably Taiwanese. CID then "recited and informed the man of his constitutional rights" to remain
silent, to have the assistance of a counsel, etc. Eliciting no response from the man, CID ordered his
men to find a resident of the area who spoke Chinese to act as an enterpreter. In the meantime,
BADUA opened the bag and counted twenty-nine (29) plastic packets containing yellowish
crystalline substance which he and CID suspected was shabu. The interpreter, Mr. Go Ping Guan,
finally arrived, through whom the man was "apprised of his constitutional rights." The police
authorities were satisfied that the man and the interpreter perfectly understood each other despite
their uncertainty as to what language was spoken. But when the policemen asked the man several
questions, he retreated to his obstinate reticence and merely showed his I.D. with the name Chua
Ho San printed thereon. CHUA's bag and its contents were sent to the PNP Crime Laboratory at
Camp Diego Silang, Carlatan, San Fernando, La Union for laboratory examination. In the meantime,
CHUA was detained at the Bacnotan Police Station. 1âwphi1.nêt

Later that same day, Police Chief Inspector and Forensic Chemist Theresa Ann Bugayong Cid of the
Philippine National Police, Region I, received a letter request3 from CID — incidentally her husband
— to conduct a laboratory examination of twenty-nine (29) plastic packets placed inside a
multicolored strawbag. In her Chemistry Report No. D-025-95,4 she stated that her qualitative
examination established the contents of the plastic packets, weighing 28.7 kilos, to be positive of
methamphetamine hydrochloride or shabu, a regulated drug.

CHUA was initially charged with illegal possession of methaphetamine hydrochloride before the RTC
which docketed the case as Criminal Case No. 4037. However, pursuant to the recommendation of
the Office of the Provincial Prosecutor, La Union, that the facts of the case could support an
indictment for illegal transport of a regulated drug, the information was subsequently amended to
allege that CHUA "willfully, unlawfully and feloniously transpor(ted) 28.7 kilos of [m]ethamphetamine
[h]ydrochloride (shabu) without the necessary permit or authority to transport the same" in violation
of Section 15, Article III of R.A. 6425 as amended by R.A. 7659.

At his arraignment on 31 July 1995, CHUA entered a plea of not guilty. The RTC was satisfied that
CHUA understood the amended information read to him in Fukien by the Fukien-speaking
interpreter, Thelma Sales Go.

Thereafter, the RTC exerted all efforts to obtain the services of a Taiwanese Interpreter through the
auspices of the Department of Foreign Affairs. However, it was only after directing the request to the
Taipei Economic and Cultural Office in the Philippines that interpreters were assigned to CHUA.

Trial finally ensued. The State presented evidence tending to establish the above narration of facts
which were culled chiefly from the testimony of CID, its first witness, and whose testimony, in turn,
was substantially corroborated by witnesses BADUA and ALMOITE.

Experts witness Theresa Ann Cid, confirmed the entries of her chemistry report in that the contents
of the 29 plastic packets weighing 28.7 kilos sent to her for chemical analysis were pure,
unadulterated methamphetamine hydrochloride or shabu. She also explained that they were
unwashed, hence they appeared yellowish.

For the defense, CHUA testified in his own behalf through interpreter Steven Yu. He disclosed that
he hails from Taiwan and was employed in a shipbuilding and repairing company. On 21 March
1995, he was instructed by his employer Cho Chu Rong (hereafter RONG) to board the latter's 35-
tonner ship which would embark for Nan Au Port, Mainland China where they would buy fish. Upon
arrival at their destination, RONG left the ship, came back without the fish, but with two bags, the
contents of which he never divulged to CHUA. RONG then showed to CHUA a document
purportedly granting them authority to fish on Philippine waters. So they sailed towards the
Philippines and reached Dagupan, Pangasinan on 29 March 1995. At around 10:30 a.m., they
disembarked on a small speedboat with the two bags RONG brought with him from China. While,
sailing, RONG made several phone calls using his mobile phone. CHUA heard RONG asked the
person on the other side of the line if he could see the speedboat they were riding. Apparently, the
person on shore could not see them so they cruised over the waters for about five hours more when
finally, low on fuel and telephone battery, they decided to dock. CHUA anchored the boat while
RONG carried the bags to shore. The tasks completed, RONG left to look for a telephone while
CHUA rested and sat one and half (1 1/2) meters away from one bag. A child thereafter pointed out
to him that one bag was missing much to RONG's dismay when he learned of it. When a crowd
started to mill around them, the police arrived. CHUA then realized that RONG was nowhere to be
found. The police immediately approached CHUA, and with nary any spoken word, only gestures
and hand movements, they escorted him to the precinct where he was handcuffed and tied to a
chair. Later, the police, led by an officer who CHUA guessed as the Chief of Police arrived with the
motor engine of the speedboat and a bag. They presented the bag to him, opened it, inspected and
weighed the contents, then proclaimed them as methaphetamine hydrochloride.

CHUA denounced the prosecution's story as a distortion of the truth. He denied he was ever favored
with an interpreter or informed of his "constitutional rights," particularly of his right to counsel.
Consequently, his arrest was tainted with illegality and the methamphetamine hydrochloride found in
the bag should have been regarded inadmissible as evidence. He also maintained that CID never
graced the occasion of his setting foot for the first time at Tammocalao beach. BADUA certainly
never prevented him from running away, as such thought failed to make an impression in his mind.
Most significantly, he denied ownership and knowledge of the contents of the bag, emphasizing that
RONG alone exercised dominion over the same.

Elmer Parong, (hereafter PARONG) a Sangguniang Bayan member, recalled that on the date in
question, he arrived at the beach with the police. He saw CHUA standing with a bag beside him. He
also remembered hearing from the people congregating at the beach that CHUA arrived with a
companion and a certain policeman Anneb had chased the latter's car. He additionally claimed that
when the crowd became unruly, the police decided to bring CHUA to police headquarters. There, the
mayor took charge of the situation — he opened CHUA's bag with the assistance of the police, he
called for a forensic chemist surnamed CID to take a sample of the contents of the bag, and he
ordered his officials to find an interpreter. Throughout the proceedings, photographers were busy
taking pictures to document the event.

Last to testify was Arsenio CRAIG, a farmer and resident of Tammocalao who narrated that he was
standing with CHUA on the beach when two men and a lady arrived. They were about to get a bag
situated near CHUA when they detected the arrival of the local police. They quickly disappeared.
CRAIG then noticed ALMOITE and PARONG at the beach but not CID.

In a decision promulgated on 10 February 1997, the RTC found that the prosecution successfully
discharged its burden of proving that CHUA transported 28.7 kilos of methamphetamine
hydrochloride without legal authority to do so. Invoking People v. Tagliben5 as authority, the RTC
characterized the search as incidental to a valid in flagrante delicto arrest, hence it allowed the
admission of the methamphetamine hydrochloride as corpus delicti. The RTC also noted the futility
of informing CHUA of his constitutional rights to remain silent, and to have competent and
independent counsel preferably of his own choice, considering the language barrier and the
observation that such irregularity was "rectified when accused was duly arraigned and . . .
(afterwards) participated in the trial of this case." The RTC then disregarded the inconsistencies and
contradictions in the testimonies of the prosecution witnesses as these referred to minor details
which did not impair the credibility of the witnesses or tarnish the credence conferred on the
testimonies thus delivered.
The RTC also believed that CHUA conspired not only with his alleged employer RONG and the
Captain of the 35-tonner vessel in the illegal trade of prohibited drugs on Philippine shores, but with
several other members of an organized syndicate bent on perpetrating said illicit traffic. Such
predilection was plainly evident in the dispositive portion, to wit:

WHEREFORE, and in view of all the foregoing, as proven and established by

convincing and satisfactory evidence that the accused had conspired and acted in
concert with one Cho Chu Rong, not to mention Chen Ho Fa, the Skipper of the 35-
tonner ship they used in coming to the Country from China and Taiwan, this Court
finds the accused Chua Ho San @ Tsay Ho San guilty beyond reasonable doubt of
the offense of Violation of Sec. 15, Art. III of R.A. No. 6425, as amended by R.A. No.
7659 as charged in the Information, and considering the provisions of Sec. 20 of R.A.
No. 7659 that the maximum penalty shall be imposed if the quantity
sold/possessed/transported is "200 grams or more" in the case of Shabu, and
considering, further that the quantity involved in this case is 28.7 kilograms which is
far beyond the weight ceiling specified in said Act, coupled with the findings of
conspiracy or that accused is a member of an organized syndicated crime group, this
Court, having no other recourse but to impose the maximum penalty to accused, this
Court hereby sentences the said accused Chua Ho San @ Tsay Ho San to die by
lethal injection; to pay a fine of Ten Million Pesos (P10,000,000.00); and to pay the
costs.

The Court hereby orders Director Ricareido [sic] Sarmiento of the Philippine National
Police to immediately form an investigating Committee to be composed by [sic] men
of unimpeachable integrity, who will conduct an exhaustive investigation regarding
this case to determine whether there was negligence or conspiracy in the escape of
Cho Chu Rong and the two (2) or three (3) persons who approached the accused in
the seashore of Tammocalao, Bacnotan, La Union, and attempted to take the
remaining bag from accused, as well as the whereabouts of the other bag; and to
furnish this Court a copy of the report/result of the said investigation in order to show
compliance herewith sixty (60) days from receipt hereof.

The confiscated 28.7 kilograms of Methaphetamine Hydrochloride or Shabu is

ordered turned over immediately to the Dangerous Drugs Board for destruction in
accordance with the law.

The fiberglass boat with its motor engine is hereby ordered confiscated in favor of the
government and to be turned over to the Philippine National Police, La Union
Command, for use in their Bantay-Dagat operations against all illegal seaborne
activities.

SO ORDERED. 6

Before this Court, CHUA posits that the RTC erred in (1) admitting as competent evidence the 29
plastic packets of methamphetamine hydrochloride since they were indubitably "forbidden fruits;" (2)
granting weight and credence to the testimonies of prosecution witnesses despite glaring
inconsistencies on material points; and in (3) appreciating conspiracy between him and an organized
syndicate in the illicit commerce of prohibited drugs since this was not alleged in the information.

The Solicitor General traverses CHUA's contentions by asserting that: (1) the search was licitly
conducted despite the absence of search and seizure warrants as circumstances immediately
preceding to and comtemporaneous with the search necessitated and validated the police action;
and (2) that there was an effective and valid waiver of CHUA's right against unreasonable searches
and seizures since he consented to the search.

We reverse the RTC.

Enshrined in the Constitution is the inviolable right to privacy home and person. It explicitly ordains
that people have the right to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures of whatever nature and for any purpose.7 Inseparable, and not
merely corollary or incidental to said right and equally hallowed in and by the Constitution, is the
exclusionary principle which decrees that any evidence obtained in violation of said right is
inadmissible for any purpose in any proceedings.8

The Cosntitutional proscription against unreasonable searches and seizures does not, of course,
forestall reasonable searches and seizure. What constitutes a reasonable or even an unreasonable
search in any particular case is purely a judicial question, determinable from a consideration of the
circumstances involved.9 Verily, the rule is, the Constitution bars State intrusions to a person's body,
personal effects or residence except if conducted by virtue of a valid of a valid search warrant issued
in compliance with the procedure outlined on the Constitution and reiterated in the Rules of Court;
"otherwise such search and seizure become "unreasonable" within the meaning of the
aforementioned constitutional provision."10 This interdiction against warrantless searches and
seizures, however, is not absolute and such warrantless searches and seizures have long been
deemed permissible by jurisprudence11 in instances of (1) search of moving vehicles, (2) seizure in
plain view, (3) customs searches, (4) waiver or consent searches, (5) stop and frisk situations (Terry
search),12 and (6) search incidental to a lawful arrest. The last includes a valid warrantless search
and seizure pursuan to an equally valid warrantless arrest, for, while as a rule, an arrest is
considered legitimate if effected with a valid wararnt of arrest, the Rules of Court recognize
permissible warrantless arrests, to wit: (1) arrests in flagrante delicto, (2) arrests effected in hot
pursuit, and (3) arrests of escaped prisoners. 13

This Court is therefore tasked to determine whether the warrantless arrest, search and seizure
conducted under the facts of the case at bar constitute a valid exemption from the warrant
requirement. Expectedly and quite understandably, the prosecution and the defense painted
extremely divergent versions of the incident. But this Court is certain that CHUA was arrested and
his bag searched without the benefit of a warrant.

In cases of in fragrante delicto, arrests, a peace officer or a private person may without a warrant,
arrest a person, when, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense. The arresting officer, therefore, must have
personal knowledge of such facts14 or as recent case law15 adverts to, personal knowledge of facts or
circumstances convincingly indicative or constitutive of probable cause. The term probable cause
had been understood to mean a reasonable ground of suspicion supported by circumstances
sufficiently strong in themselves to warrant a cautious man's belief that the person accused is guilty
of the offense with which he is charged.16 Specifically with respect to arrests, it is such facts and
circumstances which would lead a reasonably discreet and prudent man to believe that an offense
has been committed by the person sought to be
arrested. 17 In People v. Montilla,18 the Court acknowledged that "the evidentiary measure for the
propriety of filing criminal charges, and correlatively, for effecting warrantless arrest, has been
reduced and liberalized." Noting that the previous statutory and jurisprudential evidentiary standard
was "prima facie evidence" and that it had been dubiously equated with probable cause, the Court
explained:
 [F]elicitously, those problems and confusing concepts (referring to prima
facie evidence and probable cause) were clarified and set aright, at least on the
issue under discussion, by the 1985 amendment of the Rules of Court which
provides in Rule 112 thereof that the quantum of evidence required in preliminary
investigation is such evidence as suffices to "engender as well founded belief" as to
the fact of the commission of the crime and the respondent's probable guilt thereof. It
has the same meaning as the related phraseology used in other parts of the same
Rule, that is, that the investigating fiscal "finds cause to hold the respondent for trial,"
or where "a probable cause exists." It should, therefore, be in that sense, wherein the
right to effect a warrantless arrest should be considered as legally authorized."
(emphasis supplied)19

Guided by these principles, this Court finds that there are no facts on record reasonably suggestive
or demonstrative of CHUA's participation in on going criminal enterprise that could have spurred
police officers from conducting the obtrusive search. The RTC never took the pains of pointing to
such facts, but predicated mainly its decision on the finding that was "accused was caught red-
handed carrying the bagful of [s]habu when apprehended." In short, there is no probable cause. At
least in People v. Tangliben, the Court agreed with the lower court's finding that compelling reasons
(e.g., accused was acting suspiciously, on the spot identification by an informant that accused was
transporting prohibitive drug, and the urgency of the situation) constitutive of probable cause
impelled police officers from effecting an in flagrante delicto arrest. In the case at bar, the Solicitor
General proposes that the following details are suggestive of probable cause — persistent reports of
rampant smuggling of firearm and other contraband articles, CHUA's watercraft differing in
appearance from the usual fishing boats that commonly cruise over the Bacnotan seas, CHUA's
illegal entry into the Philippines (he lacked the necessary travel documents or visa), CHUA's
suspicious behavior, i.e. he attempted to flee when he saw the police authorities, and the apparent
ease by which CHUA can return to and navigate his speedboat with immediate dispatch towards the
high seas, beyond the reach of Philippine laws.

This Court, however, finds that these do not constitute "probable cause." None of the telltale
clues, e.g., bag or package emanating the pungent odor of marijuana or other prohibited
drug,20 confidential report and/or positive identification by informers of courier(s) of prohibited drug
and/or the time and place where they will transport/deliver the same,21 suspicious demeanor or
behavior 22 and suspicious bulge in the waist23 — accepted by this Court as sufficient to justify a
warrantless arrest exists in this case. There was no classified information that a foreigner would
disembark at Tammocalao beach bearing prohibited drug on the date in question. CHUA was not
identified as a drug courier by a police informer or agent. The fact that the vessel that ferried him to
shore bore no resemblance to the fishing boats of the area did not automatically mark him as in the
process of perpetrating an offense. And despite claims by CID and BADUA that CHUA attempted to
flee, ALMOITE testified that the latter was merely walking and oblivious to any attempt at
conversation when the officers approached him. This cast serious doubt on the truthfulness of the
claim, thus:

Q: How far were you when the accused put the bag on his sholder?

A: We were then very near him about three meters away from the
male person carrying the bag.

Q: To what direction was he facing when he put the bag on his

shoulder?

A: To the east direction.

 Q: In relation to you, where were you.

A: With the company of Sgt. Reynoso and Maj. Cid we approached

the accused and when Maj. Cid went near him, he spoke in
Tagalong, English and Ilocano which accused did not understand
because he did not respond.

Q: When Maj. Cid was talking, what was the accused doing at that
time?

A: He was walking.

Q: To what direction he was walking?

A: He was walking to the east direction. (sic)

Q: He was walking away from you or going near you?

A: He was going away from us. That is why Sgt. Reynoso held the
right arm of the accused.

Q: Was Sgt. Badua able to hold the right arm of the accused?

A: Yes sir and he stopped.24

True, CHUA entered Philippine territory without a visa. This was not obvious to the police. But
gossamer to the officers' sense perception and view were CHUA disembarking from a speedboat,
CHUA walking casually towards the road, and CHUA carrying a multicolored strawbag. These acts
did not convey any impression that he illegally entered Philippine shores. Neither were these overt
manifestations of an ongoing felonious activity nor of CHUA's criminal behevior as clearly
established in CID's testimony, thus:

Q Was the accused committing a crime when you introduced

yourselves:

A No, sir.

Q No, so there was no reason for you to approach the accused

because he was not doing anything wrong?

A No, sir, that is our objective, to approach the person and if ever or
whatever assistance that we can give we will give.25

The search cannot therefore be denominated as incidental to an arrest. While a contemporaneous

search of a person arrested may be effected to deliver dangerous weapons or proofs or implements
used in the commission of the crime and which search may extend to the area within his immediate
control where he might gain possession of a weapon or evidence he can destroy,26 a valid arrest
must precede the search. The process cannot be reversed.

In a search incidental to a lawful arrest, as the precedent arrest determines the

validity of the incidental search, the legality of the arrest is questioned in a large
 majority of these cases, e.g., whether an arrest was merely used as a pretext for
conducting a search. In this instance, the law requires that there be first a lawful
arrest before a search can be made — the process cannot be reversed.27

To reiterate, the search was not incidental to an arrest. There was no warrant of arrest and
the warrantless arrest did not fall under the exemptions allowed by the Rules of Court28 as
already shown. Fom all indications, the search was nothing but a fishing expedition. It is
worth mentioning here that after introducing themselves, the police officcers immediately
inquired about the contents of the bag. What else could have impelled the officers from
displaying such inordinate interest in the bag but to ferret out evidence and discover if a
felony had indeed been committed by CHUA — in effect to "retroactively establish probable
cause and validate an illegal search and seizure."

The State then attempted to persuade this Court that there was a consented search, a legitimate
waiver of the constitutional guarantee against obtrusive searches. It is fundamental, however, that to
constitute a waiver, it must first appear that the right exists; secondly, that the person involved had
knowledge, actual or constructive, of the existence of such a right; and lastly, that said person had
an actual intention to relinquish the right.29 CHUA never exhibited that he knew, actually or
constructively of his right against unreasonable searches or that he intentionally conceded the same.
This can be inferred from the manner by which the search performed, thus:

Q Together with your Chief Investigator, what was the first thing that
you did when you approached him (CHUA)?

A We introduced ourselves as police officers, sir.

Q Okey, in the first place why did you introduce yourselves?

A That is normal practice in our part, sir.

xxx xxx xxx

Q If it is possible. Okey (sic) now, after introducing yourselves what

did you do?

A He did not answer me and he did not utter any word,

Q When he did not utter any word. What else did he do?

A I asked again a question that if he can open his bag sir.

Q And did he understand your question when you requested him to

open his bag?

A No, sir, there is no answer.

Q No answer?

A Yes, sir, no answer.

Q And when there was no answer what did you do next?

A I used sign language sir.

Q Will you demonstrate to this Honorable Court how you

demonstrated that sign language of opening the bag mr. (sic)
witness?

A I pointed to the zipper of the bag and then made an action like this
sir.

xxx xxx xxx

SHERIFF:

The witness demonstrating (sic) by pointing to the straw bag and then
manifesting a sign to open the zipper of the straw bag moving his
right hand from left to right or from the opening to the end of the
zipper.

COURT: From the start of the zipper where you open it up to the end
of the zipper.

Witness: Yes, sir, and then I made a motion like this.

(The witness repeating the motion described on record.)

COURT: Did you open that personally?

WITNESS:

A No, your honor.

Q Now, mr. (sic) witness, why did you request the accused to open
the bag?

A Because it is our duty also to inspect his belongings sir.

Q Why, why was it — no, I reform my question your honor. Is it

normal procedure for you to examine anybody or to request anybody
to open his bag?

A The fact that he was a foreigner, sir, it is also our duty to inspect
the baggage, it is our routine duty of a police (sic), sir.

Q Is that the normal duty of a police officer to request a person to

open his bag?

A yes, sir.

Q Okey, (sic) you did not ask the accused, mr. (sic) witness, to open
his bag?
 A No, sir.

Q But you simply requested him to open the nag?

A Yes, sir.30

CHUA obviously failed to understand the events that overran and overwhelmed him. The police
officers already introduced themselves to CHUA in three languages, but he remained completely
deadpan. The police hence concluded that CHUA failed to comprehend the three languages. When
CHUA failed to respond again to the police's request to open the bag, they resorted to what they
called "sign language." They claimed that CHUA finally understood their hand motions and gestures.
This Court disagrees. If CHUA could not understand what was orally articulated to him, how could he
understand the police's "sign language." More importantly, it cannot logically be inferred from his
alleged cognizance of the "sign language" that he deliberately, intelligently, and consciously waived
his right against such an intrusive search. This Court is not unmindful of cases upholding the validity
of consented warrantless searches and seizure. But in these cases, the police officers' request to
search personnel effects was orally articulated to the accused and in such language that left no
room for doubt that the latter fully understood what was requested. In some instances, the accused
even verbally replied to the request demonstrating that he also understood the nature and
consequences of such request.31

It was eventually discovered that the bag contained the regulated subtance. But this is a trifling
matter. If evidence obtained during an illegal search even if tending to confirm or actually confirming
initial information or suspicion of felonious activity is absolutely considered inadmissible for any
purpose in any proceeding, the same being the fruit of a poisonous trees32 how much more of
"forbidden fruits" which did not confirm any initial suspicion of criminal enterprise as in this case —
because the police admitted that they never harbored any initial suspicion. Casting aside the
regulated substance as evidence, the remaining evidence on record are insufficient, feeble and
ineffectual to sustain CHUA's conviction.

Indeed, the likelihood of CHUA having actually transported methamphetamine hydrochloride cannot
be quickly dispelled. But the constitutional guarantee against unreasonable searches and seizures
cannot be so carelessly disregarded, as overzealous police officers are sometimes wont to do.
Fealty to the Constitution and the rights it guarantees should be paramount in their minds, otherwise
their good intentions will remain as such simply because they have blundered. "There are those who
say that . . . 'the criminal is to go free because the constable has blundered.'. . . In some cases this
will undoubtedly be the result. But . . . 'there is another consideration — the imperative of judicial
integrity . . . The criminal goes free, if he must, but it is the law that sets him free. Nothing can
destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of
the charter of its own existence."33

As to the averred glaring inconsistencies in the testimonies of the posecution witnesses, this Court
considers them trivial as they refer to insignificant details which will not affect the outcome of the
case. On a passing note, this Court calls the attention of the trial court regarding its erroneous
appreciation of conspiracy. This aggravating circumstance is without question unsupported by the
records. Conspiracy was not included in the indictment nor raised in the pleadings or proceedings of
the trial court. It is also fundamental that conspiracy must be proven just like any other criminal
accusation, that is, independently and beyond reasonable doubt.34

WHEREFORE, for all the foregoing, the decision of the Regional Trial Court, Branch 66, San
Fernando, La Union in Criminal Case No. 4037 is hereby REVERSED and SET ASIDE and
accused-appellant CHUA HO SAN @ TSAY HO SAN is hereby ACQUITTED of the crime charged,
the evidence not being sufficient to establish his guilt beyond reasonable doubt.

Costs de oficio.

SO ORDERED.

G.R. Nos. 212593-94, March 15, 2016

JESSICA LUCILA G. REYES, Petitioner, v. THE HONORABLE OMBUDSMAN, Respondent.

G.R.Nos. 213163-78

JESSICA LUCILA G. REYES, Petitioner, v. THE HONORABLE SANDIGANBAYAN (THIRD DIVISION)

AND PEOPLE OF THE PHILIPPINES, Respondents.

G.R. Nos. 213540-41

JANET LIM NAPOLES, Petitioner, v. CONCHITA CARPIO MORALES IN HER OFFICIAL CAPACITY AS
OMBUDSMAN, PEOPLE OF THE PHILIPPINES, AND SANDIGANBAYAN, Respondents.

G.R. Nos. 213542-43

JO CHRISTINE NAPOLES AND JAMES CHRISTOPHER NAPOLES, Petitioners, v. CONCHITA CARPIO

MORALES, IN HER CAPACITY AS OMBUDSMAN, PEOPLE OF THE PHILIPPINES, AND
SANDIGANBAYAN, Respondents.

G.R. Nos. 215880-94

JO CHRISTINE NAPOLES AND JAMES CHRISTOPHER NAPOLES, Petitioners, v. SANDIGANBAYAN

AND PEOPLE OF THE PHILIPPINES, Respondents.

G.R. Nos. 213475-76

JOHN RAYMUND DE ASIS, Petitioner, v. CONCHITA CARPIO MORALES, IN HER OFFICIAL CAPACITY
AS OMBUDSMAN, PEOPLE OF THE PHILIPPINES, AND SANDIGANBAYAN (THIRD
DIVISION), Respondents.

DECISION

PERLAS-BERNABE, J.:

"In dealing with probable cause[,] as the very name implies, we deal with probabilities. These are not
technical; they are the factual and practical considerations of everyday life on which reasonable and prudent
men, not legal technicians, act. The standard of proof is accordingly correlative to what must be
proved."1ChanRobles Vi rtualaw lib rary

Before this Court are consolidated2 petitions3 which commonly assail the Joint Resolution4 dated March 28,
2014 and the Joint Order5 dated June 4, 2014 of the Office of the Ombudsman (Ombudsman) in OMB-C-C-
13-0318 and OMB-C-C-13-0396 finding probable cause for the crimes of Plunder6 and/or violation of Section
3 (e) of Republic Act No. (RA) 30197 against petitioners Jessica Lucila "Gigi" G. Reyes (Reyes), Janet Lim
Napoles (Janet Napoles), Jo Christine L. Napoles (Jo Christine Napoles) and James Christopher L. Napoles
(James Napoles; collectively, the Napoles siblings), and John Raymund De Asis (De Asis), together with
several others. Further assailed are: by Reyes,8 the Resolution9 dated July 3, 2014 of the Sandiganbayan,
which directed the issuance of warrants of arrest against her, and several others, as well as the
Resolution10 dated July 4, 2014 issued by the same tribunal, which denied her Urgent Motion to Suspend the
Proceedings;11 and by the Napoles siblings,12 the Resolution13 dated September 29, 2014 and the
Resolution14 dated November 14, 2014 of the Sandiganbayan, which found the existence of probable cause
against them, and several others, and consequently, set their arraignment.

The Facts

Petitioners are all charged as co-conspirators for their respective participations in the anomalous Priority
Development Assistance Fund (PDAF) scam, involving, as reported15 by whistleblowers Benhur Luy (Luy),
Marina Sula (Sula), and Merlina Suñas (Suñas), the illegal utilization and pillaging of public funds sourced
from the PDAF of Senator Juan Ponce Enrile (Senator Enrile) for the years 2004 to 2010, in the total amount
of P172,834,500.00.16 The charges are contained in two (2) complaints, namely: (1) a Complaint17 for
Plunder filed by the National Bureau of Investigation (NBI) on September 16, 2013, docketed as OMB-C-C-
13-0318 (NBI Complaint); and (2) a Complaint18 for Plunder and violation of Section 3 (e) of RA 3019 filed
by the Field Investigation Office of the Ombudsman (FIO) on November 18, 2013, docketed as OMB-C-C-13-
0396 (FIO Complaint). Tersely put, petitioners were charged for the following acts:

(a) Reyes, as Chief of Staff of Senator Enrile during the times material to this case, for fraudulently
processing the release of Senator Enrile's illegal PDAF disbursements - through: (1) project identification
and cost projection;19 (2) preparation and signing of endorsement letters,20 project reports,21 and pertinent
documents addressed to the Department of Budget and Management (DBM) and the Implementing Agencies
(IAs);22 and (3) endorsement of the preferred JLN23-controlled Non-Government Organizations (NGOs)24 to
undertake the PDAF-funded project - and for personally25 receiving significant portions of the diverted PDAF
funds representing Senator Enrile's "share," "commissions," or "kickbacks" therefrom,26 as well as her
own;27cralaw red

(b) Janet Napoles, as the alleged mastermind of the entire PDAF scam, for facilitating the illegal utilization,
diversion, and disbursement of Senator Enrile's PDAF - through: (1) the commencement via "business
propositions"28 with the legislator regarding his allocated PDAF;29 (2) the creation and operation of the JLN-
controlled NGOs purposely to serve as "conduits" of government funds, in this case, Senator Enrile's
PDAF;30 (3) the use of spurious receipts and liquidation documents to make it appear that the projects were
implemented by her NGOs;31 (4) the falsification and machinations used in securing the funds from the IAs
and liquidating disbursements;32 and (5) the remittance of the PDAF funds to Janet Napoles from her JLN
controlled-NGOs to the JLN Corporation33 to be misappropriated by her and Senator Enrile;34

(c) the Napoles siblings,35 as high ranking officers of the JLN Corporation,36 for continuously diverting the
sums sourced from Senator Enrile's PDAF to Janet Napoles's control37 - through: (1) falsification and forgery
of the signatures of the supposed recipients on the Certificates of Acceptance and Delivery Reports, as well
as the documents submitted in the liquidation of PDAF funds;38 and (2) handling of the PDAF proceeds after
being deposited in the accounts of the JLN-controlled NGOs; and39

(d) De Asis, as Janet Napoles's driver, body guard, or messenger,40 for assisting in the fraudulent releases of
the PDAF funds to the JLN-controlled NGOs and eventually remitting the funds to Janet Napoles's control -
through: (1) preparation and use of spurious documents to obtain checks from the IAs;41 (2) picking up and
receiving42 the checks representing the PDAF "commissions" or "kickbacks," and depositing them to bank
accounts in the name of the JLN-controlled NGOs concerned;43 and (3) withdrawing and delivering the same
to their respective recipients44 - also, for having been appointed as member/incorporator45 and
President46 of certain JLN-controlled NGOs.

As alleged, the systemic pillaging of Senator Enrile's PDAF commences with Janet Napoles meeting with a
legislator - in this case, Senator Enrile himself or through his Chief of Staff, Reyes, or Ruby Tuason
(Tuason)47 - with the former rendering an offer to "acquire" his PDAF allocation in exchange for a "rebate,"
"commission," or "kickback" amounting to a certain percentage of the PDAF.48 Upon their agreement on the
conditions of the "PDAF acquisition," including the "project" for which the PDAF will be utilized, the
corresponding IA tasked to "implement" the same, and the legislator's "rebate," "commission," or "kickback"
ranging from 40-60% of either the "project" cost or the amount stated in the Special Allotment Release
Order (SARO),49 the legislator would then write a letter addressed to the Senate President for the immediate
release of his PDAF, who in turn, will endorse such request to the DBM for the release of the SARO.50 By this
time, the initial advance portion of the "commission" would be remitted by Janet Napoles to the
legislator.51 Upon release of the SARO, Janet Napoles would then direct her staff - including whistleblowers
Luy, Sula, and Suñas - to prepare PDAF documents containing, inter alia, the preferred JLN-controlled NGO
that will be used for the implementation of the "project," the project proposals of the identified NGO, and
the indorsement letters to be signed by the legislator and/or his staff, all for the approval of the
legislator;52 and would remit the remaining portion or balance of the "commission" of the legislator,53 which
is usually delivered by her staff, De Asis and Ronald John Lim.54 Once the documents are approved, the
same would be transmitted to the IA which will handle the preparation of the Memorandum of Agreement
(MOA) to be executed by the legislator's office, the IA, and the chosen NGO.55 Thereafter, the DBM would
release the Notice of Cash Allocation (NCA) to the IA concerned, the head of which, in turn, would expedite
the transaction and release of the corresponding check representing the PDAF disbursement, in exchange for
a ten percent (10%) share in the project cost.56 Among those tasked by Janet Napoles to pick up the checks
and deposit them to the bank accounts of the NGO concerned were Luy, Suñas, De Asis, and the Napoles
siblings.57 Once the funds are in the account of the JLN-controlled NGO, Janet Napoles would then call the
bank to facilitate the withdrawal thereof.58 Upon withdrawal of the said funds by Janet Napoles's staff, the
latter will bring the proceeds to the office of the JLN Corporation where it will be accounted. Janet Napoles
will then decide how much will be left in the office and how much will be brought to her residence in Taguig
City.59 De Asis, Luy, and Suñas were the ones instructed to deliver the money to Janet Napoles's
residence.60 Finally, to liquidate the disbursements, Janet Napoles and her staff, i.e., the Napoles siblings
and De Asis, would manufacture fictitious lists of beneficiaries, liquidation reports, inspection reports, project
activity reports, and similar documents that would make it appear that the PDAF-related project was
implemented.61 Under this modus operandi, Senator Enrile, with the help of petitioners, among others,
allegedly tunneled his PDAF amounting to around P345,000,000.0062 to the JLN-controlled NGOs and, in
return, received "rebates," "commissions," or "kickbacks" amounting to at least P172,834,500.00.63

In her defense, Reyes filed her Consolidated Counter-Affidavit64 on January 3, 2014, contending that the
letters and documents which she purportedly signed in connection with the allocation of the PDAF of Senator
Enrile were all forged, and that none of the three (3) witnesses - Luy, Suñas, and Nova Kay B. Macalintal -
who mentioned her name in their respective affidavits, directly and positively declared that she received
money from the PDAF in question.65

For their part, the Napoles siblings filed their Joint Counter-Affidavit66 on February 24, 2014, opposing their
inclusion as respondents in the FIO Complaint. They claimed that the said Complaint: (a) is insufficient in
form and substance as it failed to state in unequivocal terms the specific acts of their involvement in the
commission of the offenses charged, as required in Section 6, Rule 110 of the 2000 Rules of Criminal
Procedure;67 and (b) failed to allege and substantiate the elements of the crime of Plunder and violation of
Section 3 (e) of RA 3019.68 They likewise argued that the affidavits and statements of the whistleblowers
contain nothing more than mere hearsay and self-serving declarations, which are, therefore, inadmissible
evidence unworthy of credence.69

On the other hand, while De Asis admitted70 that he was an employee of the JLN Corporation from 2006-
2010 in various capacities as driver, bodyguard or messenger, and that he received a salary of P10,000.00 a
month for serving as the personal driver and "errand boy" of Janet Napoles, he denied the allegations
against him, and maintained that he was merely following instructions from Janet Napoles when he picked-
up checks for the JLN-controlled NGOs; that he had no knowledge in setting up or managing the
corporations which he supposedly helped incorporate (namely, Kaupdanan Para sa
Mangunguma Foundation, Inc. [KPMFI], as President,71 and Countrywide Agri and Rural Economic
Development Foundation, Inc. [CARED], as Member/Incorporator)72; and that he did not personally benefit
from the alleged misuse of the PDAF.73

Meanwhile, despite due notice, Janet Napoles failed to file her counter-affidavits to the foregoing
Complaints. Thus, the Ombudsman considered her to have waived her right to file the same.74

While preliminary investigation proceedings were ongoing before the Ombudsman, Tuason, who was likewise
charged under OMB-C-C-13-0318 and OMB-C-C-13-0396, surfaced as an additional witness and offered her
affidavit75 implicating Reyes in the PDAF scam. This prompted Reyes to file before the Ombudsman an
Omnibus Motion76 dated March 27, 2014, requesting that: (a) she be furnished copies of: (1) Tuason's
affidavit, which supposedly contained vital information that was described by Department of Justice
Secretary Leila M. De Lima as "slam dunk evidence";77 (2) the transcript of the alleged 12-hour clarificatory
hearing on February 11, 201478 where Tuason was said to have substantiated the allegations in her
affidavit; and (3) the additional documents the latter submitted thereat; and (b) she be given a period of
time to comment on Tuason's affidavit or to file a supplemental counter-affidavit, if deemed necessary.79 On
even date, the Ombudsman denied80 Reyes's Omnibus Motion on the ground that "there is no provision
under [the said office's Rules of Procedure] which entitles [Reyes] to be furnished filings by the other
parties, including the other respondents."81

The following day, the Ombudsman issued the assailed 144-page Joint Resolution82 dated March 28, 2014
finding probable cause against, inter alia, Reyes, Janet Napoles, and De Asis of one (1) count of Plunder,
and against Reyes, Janet Napoles, De Asis, and the Napoles siblings for fifteen (15) counts of violation of
Section 3 (e) of RA 3019. Accordingly, separate motions for reconsideration were timely filed by
Reyes,83 Janet Napoles,84 the Napoles siblings,85 and De Asis.86

Pending the resolution of the aforesaid motions, the Ombudsman issued a Joint Order87 dated May 7, 2014
granting Reyes's request for copies of the respective Counter-Affidavits of Tuason and Dennis Cunanan
(Cunanan), and directing her to file a comment thereon. Among the documents allegedly attached to the
said Joint Order were copies of the Supplemental Sworn Statement88 of Tuason dated February 21, 2014
and the Sworn Statement89 of Cunanan dated February 20, 2014,90 to which Reyes submitted separate
Comments91 on May 13, 2014. However, Tuason's earlier Sworn Statement dated February 4, 201492 and
the transcripts of the clarificatory hearing93 - both of which were requested by Reyes - were not included.
Hence, Reyes filed another Motion94 on May 9, 2014 requesting copies of said documents. Subsequently, on
May 13, 2014, she filed a Reiterative Motion95 for the same purpose. The Ombudsman denied the aforesaid
motions on the ground that "the Affidavit dated 4 February 2014 does not form part of the records of the
preliminary investigation and neither was [it] mentioned/referred to in the Joint Resolution dated 28 March
2014."96 It was further stated that the Special Panel of Investigators "did not conduct clarificatory hearings
at any stage during the preliminary investigation."97

Due to reports98 that Tuason was officially declared a state witness and granted immunity99 from criminal
prosecution for the PDAF scam-related cases, Reyes wrote a letter100 dated May 7, 2014 to the Ombudsman,
requesting a copy of the immunity agreement that it entered into with Tuason. Again, the Ombudsman
denied Reyes's request for the reason that the immunity agreement is a "privileged communication which is
considered confidential under Section 3, Rule IV of the Rules and Regulations Implementing [RA]
6713,"101 otherwise known as the "Code of Conduct and Ethical Standards for Public Officials and
Employees."102

On June 4, 2014, the Ombudsman issued a Joint Order103 denying, among others, the motions for
reconsideration filed by herein petitioners. This led to the filing of the petitions before this Court, docketed
as G.R. Nos. 212593-94,104G.R. Nos. 213540-41,105G.R. Nos. 213542-43,106 and G.R. Nos. 213475-
76,107 commonly assailing the March 28, 2014 Joint Resolution108 and the June 4, 2014 Joint Order109 of the
Ombudsman in OMB-C-C-13-0318 and OMB-C-C-13-0396.

Consequently, a total of sixteen (16) Informations110 were filed by the the Ombudsman before the
Sandiganbayan, charging, inter alia, Reyes, Janet Napoles, and De Asis with one (1) count of Plunder,
docketed as Criminal Case No. SB-14-CRM-0238;111 and Reyes, Janet Napoles, the Napoles siblings, and De
Asis with fifteen (15) counts of violation of Section 3 (e) of RA 3019, docketed as Criminal Case Nos. SB-14-
CRM-0241 to 0255,112 which were raffled to the Sandiganbayan's Third Division.113

To forestall the service of a warrant of arrest against her, on June 13, 2014, Reyes filed an Urgent Motion to
Suspend Proceedings114 before the Sandiganbayan until after this Court shall have resolved her application
for the issuance of a temporary restraining order and/or writ of preliminary injunction in G.R. Nos. 212593-
94. On July 1, 2014, she filed a Manifestation and Reiterative Motion to Suspend Proceedings Against
Accused Reyes.115 Similarly, the Napoles siblings filed a Motion for Judicial Determination of Probable Cause
with Urgent Motion to Defer the Issuance of Warrant of Arrest and Suspend Proceedings116 dated June 13,
2014 before the Sandiganbayan.

On July 3, 2014, resolving Criminal Case No. SB-14-CRM-0238, "along with several other related cases," the
Sandiganbayan issued a Resolution117 finding probable cause for the issuance of warrants of arrest against
"all the accused," opining therein that the filing of a motion for judicial determination of probable cause was
a mere superfluity given that it was its bounden duty to personally evaluate the resolution of the
Ombudsman and the supporting evidence before it determines the existence or non-existence of probable
cause for the arrest of the accused.118 In view, however, of the Separate Opinion119 issued by Justice Samuel
R. Martires, dissenting to the issuance of warrants of arrest against the Napoles siblings, aiong with several
others, upon the premise that the Office of the Special Prosecutor (OSP) still needs to present additional
evidence with respect to the aforementioned persons, pursuant to Section 5, Rule 112 of the 2000 Rules of
Criminal Procedure,120 a Special Third Division of the Sandiganbayan, composed of five (5) members, was
created.
A day later, or on July 4, 2014, the Sandiganbayan issued another Resolution121 dated July 4, 2014 in
Criminal Case Nos. SB-14-CRM-0238 and SB-CRM-0241 to 0255, denying Reyes's Motion to Suspend
Proceedings for lack of merit. In view of the foregoing developments, Reyes voluntarily surrendered to the
Sandiganbayan on even date, and accordingly, underwent the required booking procedure for her arrest and
detention.122 This prompted Reyes to file the petition docketed as G.R. Nos. 213163-78,123 assailing the
July 3, 2014124 and July 4, 2014125 Resolutions of the Sandiganbayan.

On September 29, 2014, the Special Third Division of the Sandiganbayan issued a Resolution126 in Criminal
Case Nos. SB-14-CRM- 0241 to 0255, finding the existence of probable cause against them, and several
others, and consequently, setting their arraignment. The Napoles siblings urgently moved for the
reconsideration127 of the judicial finding of probable cause against them and requested that their
arraignment be held in abeyance pending the resolution of their motion. However, the Napoles siblings
alleged128 that the Sandiganbayan acted on their motion for reconsideration through the latter's
Resolution129 dated November 14, 2014, declaring that the presence of probable cause against them had
already been settled in its previous resolutions.130 Hence, the Napoles siblings caused the filing of the
petition, docketed as G.R. Nos. 215880-94,131 assailing the September 29, 2014132 and November 14,
2014133 Resolutions of the Sandiganbayan.

The Issue Before the Court

The core issue in this case is whether or not the Ombudsman and/or the Sandiganbayan committed any
grave abuse of discretion in rendering the assailed resolutions ultimately finding probable cause against
petitioners for the charges against them.

The Court's Ruling

I. The Petitions Assailing the Resolution and Order of the Ombudsman.

In G.R. Nos. 212593-94, Reyes imputes grave abuse of discretion against the Ombudsman in finding
probable cause against her for Plunder and violations of Section 3 (e) of RA 3019 on the basis of: (a)
Tuason's Sworn Statement dated February 4, 2014, which was not furnished to Reyes despite her repeated
requests therefor, thereby violating her right to due process;134 (b) Tuason's Supplemental Sworn Statement
dated February 21, 2014 that did not mention Reyes's name at all;135 (c) documentary evidence that were
forged, falsified, and fictitious;136 and (d) hearsay declarations of the whistleblowers who merely mentioned
Reyes's name in general terms but did not positively declare that they saw or talked with her at any time or
had seen her receive money from Janet Napoles or the latter's employees.137

In G.R. Nos. 213540-41, Janet Napoles claims that the Ombudsman committed grave abuse of discretion
in finding probable cause to indict her for Plunder and violations of Section 3 (e) of RA 3019,
notwithstanding the failure of the NBI and the FIO to allege and establish the elements of Plunder;138 and
the insufficiency, in form and in substance, of both the NBI and FIO Complaints as they lacked certain
particularities such as the time, place, and manner of the commission of the crimes charged.139 Janet
Napoles further contends that as a private individual, she cannot be held liable for Plunder, considering that
the said crime may only be committed by public officers; and that conspiracy was not established.140

In G.R. Nos. 213542-43, the Napoles siblings assert that the Ombudsman gravely abused its discretion in
finding probable cause against them for violations of Section 3 (e) of RA 3019, mainly arguing that there is
no evidence to show that they conspired with any public officer to commit the aforesaid crime.141 Likewise,
the Napoles siblings asseverate that the whistleblowers' testimonies were bereft of probative value and are,
in fact, inadmissible against them.142

Finally, in G.R. Nos. 213475-76, De Asis accuses the Ombudsman of gravely abusing its discretion in
finding probable cause against him for Plunder and violations of Section 3 (e) of RA 3019, contending that
he was a mere driver and messenger of Janet Napoles, and not the "cohort" that the Ombudsman found him
to be;143 that he did not benefit from the illegal transactions of Janet Napoles, nor was he ever in full control
and possession of the funds involved therein; and that the whistleblowers admitted to being the "real
cohorts" of Janet Napoles, and as such, should have been the ones charged for the crimes which were
ascribed to him instead.144

The petitions are bereft of merit.

At the outset, it must be stressed that the Court has consistently refrained from interfering with the
discretion of the Ombudsman to determine the existence of probable cause and to decide whether or not an
Information should be filed. Nonetheless, this Court is not precluded from reviewing the
Ombudsman's action when there is a charge of grave abuse of discretion. Grave abuse of discretion
implies a capricious and whimsical exercise of judgment tantamount to lack of jurisdiction. The
Ombudsman's exercise of power must have been done in an arbitrary or despotic manner which must be so
patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform the duty
enjoined or to act at all in contemplation of law.145 In Ciron v. Gutierrez,146 it was held that:
chanRoble svirtual Lawlib ra ry

[T]his Court's consistent policy has been to maintain non-interference in the determination of the
Ombudsman of the existence of probable cause, provided there is no grave abuse in the exercise
of such discretion. This observed policy is based not only on respect for the investigatory and
prosecutory powers granted by the Constitution to the Office of the Ombudsman but upon
practicality as well. Otherwise, the functions of the Court will be seriously hampered by innumerable
petitions assailing the dismissal of investigatory proceedings conducted by the Office of the Ombudsman
with regard to complaints filed before it, in much the same way that the courts would be extremely
swamped with cases if they could be compelled to review the exercise of discretion on the part of the flscals
or prosecuting attorneys each time they decide to file an information in court or dismiss a complaint by a
private complainant.147 (Emphasis and underscoring supplied)
In assessing if the Ombudsman had committed grave abuse of discretion, attention must be drawn to the
context of its ruling - that, is: preliminary investigation is merely an inquisitorial mode of
discovering whether or not there is reasonable basis to believe that a crime has been committed
and that the person charged should be held responsible for it.148 Being merely based on opinion and
belief, "a finding of probable cause does not require an inquiry as to whether there is sufficient evidence to
secure a conviction."149 In Fenequito v. Vergara, Jr.,150 "[p]robable cause, for the purpose of filing a criminal
information, has been defined as such facts as are sufficient to engender a well-founded belief that a
crime has been committed and that respondent is probably guilty thereof. The term does not mean
'actual or positive cause nor does it import absolute certainty. It is merely based on opinion and reasonable
belief. Probable cause does riot require an inquiry x x x whether there is sufficient evidence to
procure a conviction. It is enough that it is believed that the act or omission complained of
constitutes the offense charged."151

Thus, in determining the elements of the crime charged for purposes of arriving at a finding of probable
cause, "only facts sufficient to support a prima facie case against the [accused] are required, not
absolute certainty."152 In this case, petitioners were charged with the crimes of Plunder and violations of
Section 3 (e) of RA 3019.

Plunder, defined and penalized under Section 2153 of RA 7080, as amended, has the following elements: (a)
that the offender is a public officer, who acts by himself or in connivance with members of his family,
relatives by affinity or consanguinity, business associates, subordinates or other persons; (b) that he
amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts
described in Section 1 (d)154 thereof; and (c) that the aggregate amount or total value of the ill-gotten
wealth is at least Fifty Million Pesos (P50,000,000.00).155

On the other hand, the elements of violation of Section 3 (e)156 of RA 3019 are: (a) that the accused must
be a public officer discharging administrative, judicial, or official functions (or a private individual acting in
conspiracy with such public officers); (b) that he acted with manifest partiality, evident bad faith, or
inexcusable negligence; and (c) that his action caused any undue injury to any party, including the
government, or giving any private party unwarranted benefits, advantage, or preference in the discharge of
his functions.157

Owing to the nature of a preliminary investigation and its purpose, all of the foregoing elements need not be
definitively established for it is en6ugh that their presence becomes reasonably apparent. This is because
probable cause - the determinative matter in a preliminary investigation implies mere probability of guilt;
thus, a finding based on more than bare suspicion but less than evidence that would justify a conviction
would suffice.158

Also, it should be pointed out that a preliminary investigation is not the occasion for the full and exhaustive
display of the prosecution's evidence, and that the presence or absence of the elements of the crime is
evidentiary in nature and is a matter of defense that may be passed upon after a full-blown trial on the
merits.159 Therefore, "the validity and merits of a party's defense or accusation, as well as the
admissibility of testimonies and evidence, are better ventilated during trial proper than at the
preliminary investigation level."160
Furthermore, owing to the initiatory nature of preliminary investigations, the "technical rules of evidence
should not be applied" in the course of its proceedings,161 keeping in mind that "the determination of
probable cause does not depend on the validity or merits of a party's accusation or defense or on
the admissibilitv or veracity of testimonies presented."162 Thus, in Estrada v.
Ombudsman163 (Estrada), the Court declared that since a preliminary investigation does not finally
adjudicate the rights and obligations of parties, "probable cause can be established with hearsay
evidence, as long as there is substantial basis for crediting the hearsay."164

Guided by these considerations, the Court finds that the Ombudsman did not gravely abuse its discretion in
finding probable cause to indict Reyes, Janet Napoles, and De Asis of one (1) count of Plunder, and Reyes,
Janet Napoles, the Napoles siblings, and De Asis of fifteen (15) counts of violation of Section 3 (e) of RA
3019, as will be explained hereunder.

First, records reveal that there is substantial basis to believe that Reyes, as Chief of Staff of Senator Enrile,
dealt with the parties involved; signed documents necessary for the immediate and timely implementation
of the Senator's PDAF-funded projects that, however, turned out to be "ghost projects"; and repeatedly
received "rebates," "commissions," or "kickbacks" for herself and for Senator Enrile representing portions of
the latter's PDAF. As correctly pointed out by the Ombudsman, such participation on the part of Reyes was
outlined by whistleblowers Luy, Sula, and Suñas as follows:
chanRoble svirtual Lawlib ra ry

[O]nce a PDAF allocation becomes available to Senator Enrile, his staff, in the person of either
respondent Reyes or Evangelista, would inform Tuason of this development. Tuason, in turn, would relay
the information to either Napoles or Luy. Napoles or Luy would then prepare a listing of the projects
available where Luy would specifically indicate the implementing agencies. This listing would be sent
to Reyes who would then endorse it to the DBM under her authority as Chief-of-Staff of Senator Enrile.
After the listing is released by the Office of Senator Enrile to the DBM, Janet Napoles would give Tuason a
down payment for delivery to Senator Enrile through Reyes. After the SARO and/or NCA is released,
Napoles would give Tuason the full payment for delivery to Senator Enrile through Atty. Gigi Reyes.165 ChanRoblesVirt ualawli bra ry

This was corroborated in all respects by Tuason's verified statement, the pertinent portions of which read:
chanRoble svirtual Lawlib ra ry

11. x x x It starts with a call or advise from Atty. Gigi Reyes or Mr. Jose Antonio Evangelista (also from the
Office of Senator Enrile) informing me that a budget from Senator Enrile's PDAF is available. I would then
relay this information to Janet Napoles/Benhur Luy.

12. Janet Napoles/Benhur Luy would then prepare a listing of the projects available indicating the
implementing agencies. This listing would be sent to Atty. Gigi Reyes who will endorse the same to the
DBM under her authority as Chief-of-Staff of Senator Enrile.

13. After the listing is released by the Office of Senator Enrile to the DBM, Janet Napoles would give me a
down payment for delivery for the share of Senator Enrile through Atty. Gigi Reyes.

14. After the SARO and/or NCA is released, Janet Napoles would give me the full payment for delivery to
Senator Enrile through Atty. Gigi Reyes.

15. Sometimes Janet Napoles would have the money for Senator Enrile delivered to my house by her
employees. At other times, I would get it from her condominium in Pacific Plaza or from Benhur Luy in
Discovery Suites. When Benhur Luy gives me the money, he would make me scribble on some of their
vouchers [or] even sign under the name "Andrea Reyes," [Napoles's] codename for me. This is the money
that I would deliver to Senator Enrile through Atty. Gigi Reyes.

16. I don't count the money I receive for delivery to Senator Enrile. I just receive whatever was given to
me. The money was all wrapped and ready for delivery when I get it from Janet Napoles or Benhur Luy. For
purposes of recording the transactions, I rely on the accounting records of Benhur Luy for the PDAF of
Senator Enrile, which indicates the date, description and amount of money I received for delivery to Senator
Enrile.

xxxx

18. As I have mentioned above, I personally received the share of Senator Enrile from Janet Napoles and
Benhur Luy and I personally delivered it to Senator Enrile's Chief-of-Staff, Atty. Gigi Reyes. Sometimes she
would come to my house to pick up the money herself. There were also instances when I would personally
deliver it to her when we would meet over lunch. There were occasions when Senator [Enrile] would join us
for a cup of coffee when he would pick her up. For me, his presence was a sign that whatever Atty. Gigi
Reyes was doing was with Senator Enrile's blessing.

xxxx

25. Initially, I was in-charge of delivering the share of Senator Enrile to Atty. Gigi Reyes, but later on, I
found out that Janet Napoles dealt directly with her. Janet Napoles was able to directly transact business
with Atty. Gigi Reyes after I introduced them to each other. This was during the Senate hearing of Jocjoc
Bolante in connection with the fertilizer fund scam. Janet Napoles was scared of being investigated on her
involvement, so she requested me to introduce her to Atty. Gigi Reyes who was the Chief of Staff of the
[sic] Senate President Enrile.166 (Emphases supplied)
Indeed, these pieces of evidence are already sufficient to engender a well-founded belief that the crimes
charged were committed and Reyes is probably guilty thereof as it remains apparent that: (a) Reyes, a
public officer, connived with Senator Enrile and several other persons (including the other petitioners in
these consolidated cases as will be explained later) in the perpetuation of the afore-described PDAF scam,
among others, in entering into transactions involving the illegal disbursement of PDAF funds; (b) Senator
Enrile and Reyes acted with manifest partiality and/or evident bad faith by repeatedly endorsing the JLN-
controlled NGOs as beneficiaries of his PDAF without the benefit of public bidding and/or negotiated
procurement in violation of existing laws, rules, and regulations on government procurement;167 (c) the
PDAF-funded projects turned out to be inexistent; (d) such acts caused undue injury to the government, and
at the same time, gave unwarranted benefits, advantage, or preference to the beneficiaries of the scam;
and (e) Senator Enrile, through Reyes, was able to accumulate and acquire ill-gotten wealth amounting to at
least P172,834,500.00.

In an attempt to exculpate herself from the charges, Reyes contends that the Ombudsman gravely abused
its discretion when it: (a) relied upon hearsay and unsubstantiated declarations of the whistleblowers who
merely mentioned her name in general terms but did not positively declare that they saw or talked with her
at any time or that they had seen her receive money from Janet Napoles or anyone else connected with the
latter;168 (b) granted immunity to the whistleblowers and Tuason;169 (c) denied her of due process When she
was deprived of the opportunity to rebut and disprove the statements of Tuason as she was never furnished
a copy of the latter's Sworn Statement170 dated February 4, 2014 despite repeated requests therefor;171 and
(d) disregarded the fact that her signatures found on the documentary evidence presented were forged,
falsified, and fictitious.172

Such contentions deserve scant consideration.

Assuming arguendo that such whistleblower accounts are merely hearsay, it must be reiterated that - as
held in the Estrada case - probable cause can be established with hearsay evidence, so long as there, is
substantial basis for crediting the same.173 As aforestated, the modus operandi used in advancing the PDAF
scam as described by the whistleblowers was confirmed by Tuason herself, who admitted to having acted as
a liaison between Janet Napoles and the office of Senator Enrile.174 The Ombudsman further pointed out that
the collective statements of Luy, Sula, Suñas, and Tuason find support in the following documentary
evidence: (a) the business ledgers prepared by witness Luy, showing the amounts received by Senator
Enrile, through Tuason and Reyes, as his "commission" from the so-called PDAF scam; (b) the 2007-2009
Commission on Audit (COA) Report documenting the results of the special audit undertaken on PDAF
disbursements - that there were serious irregularities relating to the implementation of PDAF-funded
projects, including those endorsed by Senator Enrile; and (c) the reports on the independent field
verification conducted in 2013 by the investigators of the FIO which secured sworn statements of local
government officials and purported beneficiaries of the supposed projects which turned out to be
inexistent.175 Clearly, these testimonial and documentary evidence are substantial enough to reasonably
conclude that Reyes had, in all probability, participated in the PDAF scam and, hence, must stand trial
therefor.

In this relation, the Court rejects Reyes's theory that the whistleblowers and Tuason are the "most guilty" in
the perpetuation of the PDAF scam and, thus, rebuffs her claim that the Ombudsman violated Section 17,
Rule 119176 of the 2000 Rules of Criminal Procedure by granting immunity to them. To begin with, "[t]he
authority to grant immunity is not an inherent judicial function. Indeed, Congress has vested such power in
the Ombudsman[,] as well as in the Secretary of Justice. Besides, the decision to employ an accused as a
state witness must necessarily originate from the public prosecutors whose mission is to obtain a successful
prosecution of the several accused before the courts. The latter do not, as a rule[,] have a vision of the true
strength of the prosecution's evidence until after the trial is over. Consequently, courts should generally
defer to the judgment of the prosecution and deny a motion to discharge an accused so he can be used as a
witness only in clear cases of failure to meet the requirements of Section 17, Rule 119 [of the 2000 Rules of
Criminal Procedure]."177 As explained in Quarto v. Marcelo:178
The decision to grant immunity from prosecution forms a constituent part of the prosecution process. It is
essentially a tactical decision to forego prosecution of a person for government to achieve a higher
objective. It is a deliberate renunciation of the right of the State to prosecute all who appear to be guilty of
having committed a crime. Its justification lies in the particular need of the State to obtain the conviction of
the more guilty criminals who, otherwise, will probably elude the long arm of the law. Whether or not the
delicate power should be exercised, who should be extended the privilege, the timing of its
grant, are questions addressed solely to the sound judgment of the prosecution. The power to
prosecute includes the right to determine who shall be prosecuted and the corollary right to
decide whom not to prosecute. In reviewing the exercise of prosecutorial discretion in these
areas, the jurisdiction of the respondent court is limited. For the business of a court of justice is
to be an impartial tribunal, and not to get involved with the success or failure of the prosecution
to prosecute. Every now and then, the prosecution may err in the selection of its strategies, but such
errors are not for neutral courts to rectify, any more than courts should correct the blunders of the
defense.179 (Emphasis and underscoring supplied)
As earlier mentioned, Tuason admitted to having acted merely as a liaison between Janet Napoles and the
Office of Senator Enrile. It is in this capacity that she made "direct arrangements" with Janet Napoles
concerning the PDAF "commissions," and "directly received" money from Janet Napoles for distribution to
the participants of the scam. In the same manner, Luy and Suñas, being mere employees of Janet Napoles,
only acted upon the latter's orders. Thus, the Ombudsman simply saw the higher value of utilizing them as
witnesses instead of prosecuting them in order to fully establish and strengthen her case against those
mainly responsible for the scam.180 The Court has previously stressed that the discharge of an accused to be
a state witness is geared towards the realization of the deep-lying intent of the State not to let a crime that
has been committed go unpunished by allowing an accused who appears not to be the most guilty to testify,
in exchange for an outright acquittal, against a more guilty co-accused. It is aimed at achieving the greater
purpose of securing the conviction of the most guilty and the greatest number among the accused for an
offense committed.181 In fact, whistleblower testimonies - especially in corruption cases, such as this -
should not be condemned, but rather, be welcomed as these whistleblowers risk incriminating themselves in
order to expose the perpetrators and bring them to justice. In Re: Letter of Presiding Justice Conrado M.
Vasquez, Jr. on CA-G.R. SP No. 103692 (Antonio Rosete, et al. v. Securities and Exchange Commission, et
al.),182 the Court gave recognition and appreciation to whistleblowers in corruption cases, considering that
corruption is often done in secrecy and it is almost inevitable to resort to their testimonies in order to pin
down the crooked public officers.183

For another, Reyes erroneously posits that under Section 4,184 Rule II of the Rules of Procedure of the Office
of the Ombudsman, she is entitled to copies of Tuason's affidavit, as well as the transcripts of the
clarificatory hearings conducted by the Ombudsman with Tuason, and that the Ombudsman's denial of such
copies constitutes a violation of due process on her part. In Estrada, the Court had already resolved in detail
that under both Rule 112 of the 2000 Rules of Criminal Procedure and Section 4, Rule II of the Rules of
Procedure of the Office of the Ombudsman, a respondent to a preliminary investigation proceeding (such as
Reyes in this case) is only entitled to the evidence submitted by the complainants, and not to those
submitted by a co-respondent185 (such as Tuason in this case, prior to her grant of immunity as a state
witness). It must also be noted that by virtue of the Ombudsman's Joint Order186 dated May 7, 2014, Reyes
was even provided with copies of Tuason and Cunanan's respective Counter-Affidavits,187 and directed to file
a comment thereon. In fact, Reyes even submitted separate Comments188 on May 13, 2014. Thus, there is
more reason to decline Reyes's assertion that the Ombudsman deprived her of due process. Time and again,
it has been said that the touchstone of due process is the opportunity to be heard,189 which was undeniably
afforded to Reyes in this case.

Finally, anent Reyes's claim that her signatures in the documentary evidence presented were false, falsified,
and fictitious, it must be emphasized that "[a]s a rule, forgery cannot be presumed and must be proved by
clear, positive[,] and convincing evidence and the burden of proof lies on the party alleging forgery. The
best evidence of a forged signature in the instrument is the instrument itself reflecting the alleged forged
signature. The fact of forgery can only be established by comparison between the alleged forged signature
and the authentic and genuine signature of the person whose signature is theorized upon to have been
forged."190 Here, Reyes has yet to overcome the burden to present clear and convincing evidence to prove
her claim of forgery, especially in light of the following considerations pointed out by the Office of the
Solicitor General in its Comment on the petition in G.R. Nos. 212593-94:191 (a) in a letter dated March 21,
2012 addressed to the COA, Senator Enrile himself admitted that his signatures, as well as those of Reyes,
found on the documents covered by the COA's Special Audit Report are authentic;192 and (b) Rogelio Azores,
the supposed document examiner who now works as a freelance consultant, aside from only analyzing
photocopies of the aforesaid documents and not the originals thereof, did not categorically state that Reyes's
signatures on the endorsement letters were forged.193 As there is no clear showing of forgery, at least at this
stage of the proceedings, the Court cannot subscribe to Reyes's contrary submission. Notably, however, she
retains the right to raise and substantiate the same defense during trial proper.

In sum, the Ombudsman did not gravely abuse its discretion in finding probable cause to indict Reyes of one
(1) count of Plunder and fifteen (15) counts of violation of Section 3 (e) of RA 3019.

Anent Janet Napoles's complicity in the abovementioned crimes, records similarly show that she, in all
reasonable likelihood, played an integral role in the calculated misuse of Senator Enrile's PDAF. As exhibited
in the modus operandi discussed earlier, once Janet Napoles was informed of the availability of a PDAF
allocation, either she or Luy, as the "lead employee"194 of the JLN Corporation, would prepare a listing of the
available projects specifically indicating the IAs. After said listing is released by the Office of Senator Enrile
to the DBM, Janet Napoles would give a down payment from her own pockets for delivery to Senator Enrile
through Reyes, with the remainder of the amount given to the Senator after the SARO and/or NCA is
released. Senator Enrile would then indorse Janet Napoles's NGOs to undertake the PDAF-funded
projects,195 which were "ghost projects" that allowed Janet Napoles and her cohorts to pocket the PDAF
allocation.196

Based on the evidence in support thereof, the Court is convinced that there lies probable cause against
Janet Napoles for the charge of Plunder as it has prima facie been established that: (a) she, in conspiracy
with Senator Enrile, Reyes, and other personalities, was significantly involved in the afore-described modus
operandi to obtain Senator Enrile's PDAF, who supposedly abused his authority as a public officer in order to
do so; (b) through this modus operandi, it appears that Senator Enrile repeatedly received ill-gotten wealth
in the form of "kickbacks" in the years 2004-2010; and (c) the total value of "kickbacks'' given to Senator
Enrile amounted to at least P172,834,500.00.

In the same manner, there is probable cause against Janet Napoles for violations of Section 3 (e) of RA
3019, as it is ostensible that: (a) she conspired with public officials, i.e., Senator Enrile and his chief of staff,
Reyes, who exercised official functions whenever they would enter into transactions involving illegal
disbursements of the PDAF; (b) Senator Enrile, among others, has shown manifest partiality and evident
bad faith by repeatedly indorsing the JLN-controlled NGOs as beneficiaries of his PDAF-funded projects -
even without the benefit of a public bidding and/or negotiated procurement, in direct violation of existing
laws, rules, and regulations on government procurement;197 and (c) the "ghost" PDAF-funded projects
caused undue prejudice to the government in the amount of P345,000,000.00.

At this juncture, the Court must disabuse Janet Napoles of her mistaken notion that as a private individual,
she cannot be held answerable for the crimes of Plunder and violations of Section 3 (e) of RA 3019 because
the offenders in those crimes are public officers. While the primary offender in the aforesaid crimes are
public officers, private individuals may also be held liable for the same if they are found to have conspired
with said officers in committing the same.198 This proceeds from the fundamental principle that in cases of
conspiracy, the act of one is the act of all.199 In this case, given that the evidence gathered perceptibly
shows Janet Napoles's engagement in the illegal hemorrhaging of Senator Enrile's PDAF, the Ombudsman
rightfully charged her, with Enrile and Reyes, as a co-conspirator for the aforestated crimes.

Furthermore, there is no merit in Janet Napoles's assertion that the complaints are insufficient in form and
in substance for the reason that it lacked certain particularities such as the time, place, and manner of the
commission of the crimes charged. "According to Section 6, Rule 110200 of the 2000 Rules of Criminal
Procedure, the complaint or information is sufficient if it states the names of the accused; the designation of
the offense given by the statute; the acts or omissions complained of as constituting the offense; the name
of the offended party; the approximate date of the commission of the offense; and the place where the
offense was committed. The fundamental test in determining the sufficiency of the averments in a
complaint or information is, therefore, whether the facts alleged therein, if hypotheticallv
admitted, constitute the elements of the offense."201 In this case, the NBI and the FIO Complaints
stated that: (a) Senator Enrile, Reyes, and Janet Napoles, among others, are the ones responsible for the
PDAF scam; (b) Janet Napoles, et al. are being accused of Plunder and violations of Section 3 (e) of RA
3019; (c) they used a certain modus operandi to perpetuate said scam, details of which were stated therein;
(d) because of the PDAF scam, the Philippine government was prejudiced and defrauded in the approximate
amount of P345,000,000.00; and (e) the PDAF scam happened sometime between the years 2004 and
2010, specifically in Taguig City, Pasig City, Quezon City, and Pasay City.202 The aforesaid allegations were
essentially reproduced in the sixteen (16) Informations - one (1) for Plunder203 and fifteen (15) for violation
of RA 3019204 - filed before the Sandiganbayan. Evidently, these factual assertions already square with the
requirements of Section 6, Rule 110 of the Rules of Criminal Procedure as above-cited. Upon such
averments, there is no gainsaying that Janet Napoles has been completely informed of the accusations
against her to enable her to prepare for an intelligent defense.205 The NBI and the FIO Complaints are,
therefore, sufficient in form and in substance.

In view of the foregoing, the Ombudsman did not gravely abuse its discretion in finding probable cause to
indict Janet Napoles of the crimes of Plunder and violations of Section 3 (e) of RA 3019.

As regards the finding of probable cause against the Napoles siblings and De Asis, it must be first
highlighted that they are placed in the same situation as Janet Napoles in that they are being charged with
crime/s principally performed by public officers (specifically, of Plunder and/or multiple violations of Section
3 [e] of RA 3019) despite their standing as private individuals on account of their alleged conspiracy with
public officers, Senator Enrile and Reyes. It is a fundamental legal axiom that "[w]hen there is
conspiracy, the act of one is the act of all."206 Thus, the reasonable likelihood that conspiracy exists
between them denotes the probable existence of the elements of the crimes above-discussed equally as to
them.

"Conspiracy can be inferred from and established by the acts of the accused themselves when said acts
point to a joint purpose and design, concerted action and community of interests."207

With respect to the Napoles siblings, it must be clarified that while it appears from the evidence on record
that: (a) they did not serve as officers or incorporators of the JLN-controlled NGOs designated as "project
partners" in the implementation of Senator Enrile's PDAF projects;208 (b) their names did not appear in the
table of signatories to the MOAs;209 and (c) they did not acknowledge receipt of the checks issued by the I
As in payment of Senator Enrile's "ghost" PDAF-funded projects, they were nonetheless involved in various
phases of the PDAF scam. Their respective participations, from which a unity of purpose and design with the
acts of their mother, Janet Napoles, resonates, were uncovered in the sworn statement210 of whistleblower
Luy, as will be shown hereunder.

For its proper context, it should be first pointed out that Luy specifically mentioned that Janet Napoles
transacted with Senator Enrile regarding his PDAF, among other legislators:
chanRoble svirtual Lawlib ra ry

50. T: Nabanggit mo na may mga pulitiko na madalas nakikipag-

transact kay JANET LIM NAPOLES, maaari mo bang sabihin kung
sinu-sino ang mga pulitiko na nagpapagamit sa mga PDAF nila?

S: Opo. Sa mga Senador po ang madalas pong makuha ni Madame

Janet na PDAF nila ay sina Senador JINGGOY
ESTRADA, Senador JUAN PONCE ENRILE, at si Senador BONG
REVILLA. Sa Congressman naman ay sina, Congresswoman
RIZALINA LANETE ng 3rd District ng Benguet, Congressman
RODOLFO PLAZA ng lone District ng Agusan Del Sur,
Congressman CONSTANTINO JARAULA ng lone District ng
Cagayan De Oro, at si Congressman EDGAR VALDEZ ng APEC
Party List. Meron pa rin mga iba pero nasa records ko po iyon.
Itong mga nabanggit ko po ay familiar na sa akin kasi regular
silang nakaka-transact ng JLN Corporation.211 (Emphasis
supplied)
He then explained that the share of the involved legislators in the PDAF were termed as "rebates," and their
disbursement from JLN Corporation were reflected in "vouchers," which were, after his initial preparation,
checked by, among others, Jo Christine Napoles:
chanRoble svirtual Lawlib ra ry
51. T: Papaano mo naman nalaman na madalas na nagagamit o
nakukuha ni JANET LIM NAPOLES ang PDAF ng mga nabanggit
mong pulitiko?

S: Kasi po bukod sa nakikita ko sila sa opisina ng JLN Corporation o

sa mga parties ni Madame JANET LIM NAPOLES o madalas na
kausap sa telepono, ay sila rin lagi ang nasa records ko na
pinagbibigyan ng pera ni Madam JANET LIM NAPOLES. Gaya po
ng sinabi ko, ako po ang inuutusan ni Madame JANET LIM
NAPOLES na gumawa ng mga dokumento at maghanda ng pera
para sa rebates ng mga Senador o Congressman na mga ito.
May VOUCHER po kasi ang mga pera na lumalabas sa JLN
Corporation. Doon sa voucher ay nakalagay ang pangalan ng
taong pagbibigyan gaya ng Senador, o Chief-of-Staff nila,
o Congressman, o sinumang public official na kumukuha
ng REBATES sa mga government projects na ipinatutupad
ng NGOs o foundations ni Madame JANET LIM NAPOLES.

52. T: Sino naman ang gumagawa ng sinasabi mong voucher?

S: Ako po.

53. T: Maaari mo bang sabihin kung papaano itong paghahanda mo

ng voucher at ang proseso nito?

S: Noong ako ay nasa JLN Corporation pa, ang una po ay sasabihan

ako ni Madame JANET LIM NAPOLES na may pupuntang tao sa
opisina ng JLN Corporation na kukuha nang pera. Maghahanda
ako ng VOUCHER kung saan naka-indicate ang pangalan ng
politiko, iyong petsa, iyong control number ng voucher at iyong
amount na ibibigay. Pipirmahan ko ito at ipapa-check ko ito
sa anak ni Madame JANET LIM NAPOLES na si JO
CHRISTINE o di kaya ay kay REYNALD "JOJO" LIM. Kapag
nasuri na nila na tama [ang] ginawa ko ay pipirmahan na nila ito
at ibibigay kay Madame JANET LIM NAPOLES at siya ang rcag-a-
approve nito. Babalik sa akin ang voucher para maihanda ko
iyong pera. Kukuha ako ng pera sa vault na nasa opisina ng JLN
Corporation. Kapag nandoon si Madame JANET LIM NAPOLES sa
opisina ay siya mismo ang nag-aabot ngpera sa tao. Kung wala
naman siya kami na ang nag-aabot ng pera. Bago pa man iabot
ang pera ay bibilangin pa muna sa harap noong taong tatanggap
 ng pera at papapirmahin siya sa voucher para katunayan na
natanggap ng ganoon halaga ng pera.212 (Emhpases supplied)
Luy further revealed that these "vouchers" do not actually contain the names of the legislators to whom the
PDAP shares were disbursed as they were identified by the use of "codenames." These "codenames," which
were obviously devised to hide the identities of the legislators involved in the scheme, were known by a
select few in the JLN Corporation, among others, the Napoles siblings:
chanRoble svirtual Lawlib ra ry

57. T: Sinabi mo na inilalagay mo sa voucher iyong pangalan ng kung

sino man ang kulaiha ng per a, may mga pagkakataon ba na
iyong sinabi sa iyo ni JANET LIM NAPOLES na kukuha ng pera ay
iba sa tatanggap?

S: Meron po. Kunwari po sa mga Senador, sasabihin ni Madame

JANET LIM NAPOLES na kinukuha na ni ganitong Senador ang
kanyang kickback pew ang pera ay kukunin ng kanyang Chief-of
Staff o representative niya. Ilalagay ko iyong pangalan
o codename ng Senador tapos i-indicate ko na "care of" tapos
iyon pangalan o codename ng kung sinuman ang tumanggap.

58. T: Maaari mo bang linawin itong sinasabi mong "codename"?

S: Ang pangalan po ng taong tumanggap ngpera ang nilalagay ko

sa "voucher" pero minsan po ay codename ang nilalagay ko.

59. T: Sino ang nagbigay ng "codename"?

S: Si Madame JANET LIM NAPOLES po ang nagbigay

ng codename kasi daw po ay sa gobyerno kami nagta-transact.

60. T: Maaari mo bang sabihin kung anu-ano ang mga "codenames" ng

mga ka-transact ni JANET LIM NAPOLES na pulitiko o
kanilang Chief-of-Staff?

S: Opo. "TANDA" kay Senator Juan Ponce Enrile,

"SEXY/ANAK/KUYA" kay Senator Jinggoy Estrada,
"POGI" kay Senator Bong Revilla, "GUERERA" kay Congressman
Rizalina Seachon-Lanete, "BONJING" kay Congressman
RODOLFO PLAZA, "BULAKLAK" kay Congressman SAMUEL
DANGWA, "SUHA" kay Congressman ARTHUR PINGOY, at
"KURYENTE" kay Congressman EDGAR VALDEZ. Mayroon pa po
 ibang codename nasa records ko. Sa ngayonpo ay sila langpo
ang aking naalala.

61. T: Bukod sa iyo, may ibans tao ba na nakakaalam ng mga

sinasabi mong codenames?

S: Opo.

62. T: Sinu-sino itong mga nakakaalam ng codenames na

nabanggit mo?

S: Si Madame JANET LIM NAPOLES, ang anak niyang sina JO

CHRISTINE at JAMES CHRISTOPHER, at mga seniors ko
sa JLN Corporation na sina MERLINA SUÑAS [sic], MARINA
SULA, EVELYN DE LEON, RONALD JOHN LIM at
ako.213 (Emphases and underscoring supplied)
As mentioned by Luy, the Napoles siblings' standing in the JLN Corporation were as follows:
chanRoble svirtual Lawlib ra ry

13. T: Bago ang sinasabi mong iligal na pagkakakulong mo

noong December 2012, sinu-sino ang mga ibans emyleyado
ni JANET LIM NAPOLES?

S: Si Madame JANET LIM NAPOLES po ang President/CEO, JAIME G.

NAPOLES po ang Consultant, JO CHRISTINE L.
NAPOLES ang Vice-President for Admin and Finance,
JAMES CHRISTOPHER L. NAPOLES Vice-President for
Operations, x x x.214

x x x x (Emphases and underscoring supplied)

Subsequently, Luy shed light on the process through which the "rebates" were received by the legislators,
again identifying the Office of Senator Enrile, through Tuason, as one of the recipients:
chanRoble svirtual Lawlib ra ry

66. T: Papaano naman ibinigay ni JANET LIM NAPOLES ang "rebates" ng

Senador o Congressman?

S: Sa mga ibang transaction ay pumupunta sa opisina ng JLN

Corporation ang Chief of Staff o pinagkakatiwalaan na tao
ng Congressman o Senador. Ikalawa po, mayroon din po na
pagkakataon na bank transfer na mula
sa account ng foundation o JLN Corporation o JO CHRIS
 Trading patungo sa account ng legislator o pinagkakatiwalang
tao ng Congressman o Senador. Ikatlong sistema po ay
si Madame NAPOLES o kaming mga empleyado na po ang
nagdadala ng cash sa mga kausap niya.

67. T: Mayroon bang pagkakataon na ikaw mismo ay nakapagbigay ng

pera na "rebates" ng transaction sa Senador o Congressman o sa
kung sino mang representative ng pulitiko?

S: Opo. Sa mga Chief-of-Staff ng mga Senador at sa

mga Congressman mismo ay nakapag-abot na po ako
ng personal. Pero sa mga senador po ay wala pong pagkakataon
na ako mismo ang nag-abot. Naririnig ko lang kay Madame
JANET LIM NAPOLES na nagbibigay daw sa mga Senador.

68. T: Maaari mo bang sabihin kung sinu-sino itong mga tinutukoy

mong Chief-of-Staff ng Senador na tumanggap ng pera
na "rebates" sa transaction kay JANET LIM NAPOLES?

S: Opo, sina Atty. RICHARD CAMBE sa opisina ni Senador BONG

REVILLA, Ms. PAULINE LABAYEN, sa opisina ni Senador JINGGOY
ESTRADA, Ms. RUBY TUASON sa opisina nina Senador JUAN
PONCE ENRILE at Senador JINGGOY ESTRADA.

69. T: Sinu-sino naman sa mga Congressman ang pinagbigyan mo ng

pera na "rebates" ng transaction nila ni JANET LIM NAPOLES?

S: Sina Congressman EDGAR VALDEZ, Congressman RODOLFO

PLAZA, Congressman CONSTANTINO JARAULA po. Nakapag-abot
din po ako kay Mr. JOSE SUMALPONG na Chief of
Staff ni Congresswoman RIZALINA LANETE.215 (Emphasis and
underscoring supplied)
When asked if Luy was the only one involved in the disbursement of "rebates," he clarified that the children
of Janet Napoles, among others, were also into the act:
chanRoble svirtual Lawlib ra ry

70. T: Maaari mo bang sabihin kung bakit ikaw ang nag-abot ng pera
na "rebates" sa transaction ni JANET LIM NAPOLES sa mga
pinangalanan mong Chief-of-Staff o representative ng Senador
at mga Congressman?
 S: Ganoon naman ang kalakaran sa opisina kung wala si Madame
JANET LIM NAPOLES. Kapag may pumupuntang tao sa opisina
para kumuha ng pera ay sinasabihan na kami ni Madame JANET
LIM NAPOLES para maghanda ng pera at kami na mismo ang
nag-aabot ngpera. Binibilang namin ito sa harap ng tatanggap
bago namin iabot at pinapapirma namin sila para ipakila
kay Madame JANET LIM NAPOLES kapag pinag-report niya kami.

71. T: Sinasabi mo na "kami", ibig mo bang sabihin ay bukod sa iyo ay

mayroon pang iba na nakapag-abot ng pera sa mga
pinangalanan mong tumanggap ng pera
na "rebates" sa transaction ni JANET LIM NAPOLES?

S: Opo, iyong mga ibang seniors ko sa opisina na trusted na tauhan

ni Madame JANET LIM NAPOLES na sina MERLINA SUÑAS [sic],
EVELYN DE LEON, at JOHN LIM. Pati iyong mga ANAK at
kapatid ni Madame JANET LIM NAPOLES ay nag-aabot din
ng personal sa mga kumukuha ng pera sa opisina ng JLN
Corporation.216 (Emphases supplied)
Meanwhile, Suñas testified that the Napoles siblings were previously involved in the forging of documents
and signatures which were, however, related, to illegal disbursements involving funds allotted to the
Department of Agrarian Reform (DAR). She also stated that the Napoles siblings were employees of the JLN
Corporation who always held office thereat, and, similar to Luy, knew their positions in the office:
chanRoble svirtual Lawlib ra ry

91. T: Maaalala mo pa ba kung sinu-sino ang mga kasama mo sa

sinabi mong pagpupulong kung saan nabanggit ni Madame
JENNY na may nakuha siyang pondo mula sa DAR?

S: Opo, andun po iyong mga empleyado ng JLN

Corporation na sina BENHUR LUY, EVELYN DE LEON, LAARNI
UY, ARTHUR LUY, JR., JOHN LIM, MARINA SULA at mga anak
ni Madam JENNY LIM na sina JO CHRISTINE a.k.a
"NENENG" at JAMES CHRISTOPHER a.k.a
"BUTSOY." Tapos noong bandang October 2009 ay pinulong
ulit kami ni Madame JENNY at dito niya sinabi na ang pondo ay
nagkakahalaga ng Php 900 million mula sa DAR.217

x
x
x
x
 111. T: Nabanggit mo na kasama ang mga anak ni Madame
JENNY na sina JO CHRISTINE at JAMES
CHRISTOPHER sa paggawa ng mga pekeng dokumento
at pamemeke ng mga pirma, sila ba ay nasa opisina
ng JLN Corporation lagi?

S: Opo. Dahil empleyado din sila at doon nag-oopisina

sa JLN Corporation.

x
x
x
x

149. T: Bilang dating empleyado ng JLN Corporation mula

taong 2000 hanggang 2013, natatandaan mo pa ba kung
sino-sino ang mga nakatrabaho mo sa JLN Corporation?

S: Opo. Sila ay [sina] JANET LIM NAPOLES na president and

CEO, asawa niyang si JAIME G.
NAPOLES bilang consultant, mga anak niyang sina JO-
CHRISTINE L. NAPOLES ang VP for admin and
finance at JAMES CHRISTOPHER NAPOLES na VP for
operations x x x.218 (Emphases and underscoring supplied)
Notably, the JLN Corporation, as per whistleblower Sula's account, had no income from business
transactions aside from the PDAF coming from the legislators involved that go through Janet Napoles's
conduit NGOs:
chanRoble svirtual Lawlib ra ry

12) T: Nabanggit mo sa iyong sinumpaang salaysay na may

petsang 29 Agosto 2013 na ikaw ay nagtrabaho kay JANET LIM
NAPOLES mula pa noong taong 1997, ano ba ang uri ng
negosyo ng JLN Corporation?

S: Ayon po sa SEC paper ng JLN Corporation ay trading ng

mga marine supplies and equipment at construction materials
ang line of business subalit sa papel lamang po iyon dahil
pakikipag-transact po sa mga lawmakers, government
agency heads at LGU officials para sa implementation ng
mga government funded projects ang naging negosyo ng
 JLN Corporation gamit ang mga NGOs o foundations na
itinatag ni Madam JANET NAPOLES.

13) T: Paano naman kumikita ang JLN Corporation sa

mga PDAF ng lawmakers?

S: Sa katotohanan po ay hindi naman po kumikita ang JLN

Corporation dahil wala naman po hong anumang business
transactions. Ang mga pondo po na nagmumula sa PDAF ng
mga lawmakers ay pumapasok sa mga NGOs ni Madam
JANET NAPOLES. Mula po sa mga bank accounts ng
NGOs ay winiwidraw po ang pera at inire-remit po
kay Madam JANET NAPOLES. Kay Madam JANET
NAPOLES po napupunta ang pera at hindi sa JLN
Corporation.

14) T: Sa paragraph No. 21 ng iyong sinumpaang salaysay na may

petsang 29 Agosto 2013 ay may mga listahan ng miyembro ng
pamilya NAPOLES at mga tao na may kaugnayan sa kanyang
mga negosyo, makikita dito na coded at mga alyas lamang
ang ID names, maari mo bang ibigay ang mga kumpletong
pangalan nila?

S: Opo, ang mga katumbas po ng mga codes/alyas na nakasaad sa

aking notebook ay ang mga sumusunod:

x
x
x
x

3) N1 JO CHRISTINE L. NAPOLES

4) N2 JAMES CHRISTOPHER L. NAPOLES

x x x x219 (Emphases and underscoring supplied)

Based on the foregoing, it may be gathered that the Napoles siblings: (a) worked at the JLN Corporation,
which was apparently shown to be at the forefront of the PDAF scam, as it was even revealed that it
received no other income outside of the PDAF transactions; (b) do not work as mere regular employees but
as high-ranking officers, being the Vice-President for Administration and Finance and Vice-President for
Operations, respectively of JLN Corporation; and (c) as high-ranking officers of the JLN Corporation, were
ostensibly privy to and/or participated in the planning and execution of the company's endeavors, which, as
claimed, include illegal activities concerning the misappropriation of various government funds, which, as
specifically pointed out by Luy, included, among others, Senator Enrile's PDAF. To recount, Luy stated that
Jo Christine Napoles, as part of the scheme, checked the "vouchers" he had prepared; that the Napoles
siblings knew of the "codenames" of the legislators in the illicit "vouchers"; and that they were also included
in the actual disbursement of "rebates" to the legislators, among others. Senator Enrile. More so, although
Suñas's testimony that the Napoles siblings forged documents and signatures pertaining to the
disbursement of the DAR funds which does not directly prove that they had committed the same with
respect to Senator Enrile's PDAF, such evidence, when juxtaposed with Luy's testimony, gains relevance in
ascertaining the illegal plan, system or scheme to which they were alleged to be involved. It also tends to
directly prove the fact that they had knowledge of JLN Corporation's illegal activities.220 The Court notes that
these accounts gain more credibility not only in view of the whistleblowers' allegations that they worked
closely with the Napoles siblings in JLN Corporation for a considerable length of time.221 but also that Sula,
Suñas, and particularly Luy as "lead employee," were among the most trusted workers of Janet Napoles in
the furtherance of the PDAF scam.222 Also, there appears to be no motive for any of these whistleblowers,
particularly, Luy, to incredulously implicate the Napoles siblings in this case. With all these factors together,
there is, at least, some substantial basis to conclude, that the Napoles siblings were, in all reasonable
likelihood, involved in the entire con.

Neither can the Napoles siblings discount the testimonies of the whistleblowers based on their invocation of
the res inter alios acta rule under Section 28, Rule 130 of the Rules on Evidence, which states that the rights
of a party cannot be prejudiced by an act, declaration, or omission of another, unless the admission is by a
conspirator under the parameters of Section 30 of the same Rule.223 To be sure, the foregoing rule
constitutes a technical rule on evidence which should not be rigidly applied in the course of preliminary
investigation proceedings. In Estrada, the Court sanctioned the Ombudsman's appreciation of hearsay
evidence, which would otherwise be inadmissible under technical rules on evidence, during the preliminary
investigation "as long as there is substantial basis for crediting the hearsay."224 This is because "such
investigation is merely preliminary, and does not finally adjudicate rights and obligations of
parties."225 Applying the same logic, and with the similar observation that there lies substantial basis for
crediting the testimonies of the whistleblowers herein, the objection interposed by the Napoles siblings
under the evidentiary res inter alios acta rule should falter. Ultimately, as case law edifies, "[t]he technical
rules on evidence are not binding on the fiscal who has jurisdiction and control over the conduct of a
preliminary investigation,"226 as in this case.

Therefore, on account of the above-mentioned acts which seemingly evince the Napoles siblings'
participation in the conspiracy involving Senator Enrile's PDAF, no grave abuse of discretion may be ascribed
against the Ombudsman in finding probable cause against them for fifteen (15) counts of violation of Section
3 (e) of RA 3019 as charged.

In the same vein, the evidence on record exhibits probable cause for De Asis's involvement as a co-
conspirator for the crime of Plunder, as well as violations of Section 3 (e) of RA 3019. A perusal thereof
readily reveals that De Asis is the President227 of KPMFI and a member/incorporator228 of CARED - two (2)
among the many JLN-controlled NGOs that were used in the perpetuation of the scam particularly involved
in the illegal disbursement of Senator Enrile's PDAF.229 Moreover, in the Pinagsamang Sinumpaang
Salaysay230 of whistleblowers Luy and Suñas, as well as their respective Karagdagang Sinumpaang
Salaysay231 they tagged De Asis as one of those who prepared money to be given to the lawmaker;232 that
he, among others, received the checks issued by the IAs to the NGOs and deposited the same in the
bank;233 and that, after the money is withdrawn from the bank, De Asis was also one of those tasked to
bring the money to Janet Napoles's house.234 With these, the Court finds that there are equally well-
grounded bases to believe that, in all possibility, De Asis, thru his participation as President of KPMFI and
member/incorporator of CARED, as well as his acts of receiving checks in the name of said NGOs, depositing
them in the NGOs' bank accounts, delivering money to Janet Napoles, and assisting in the delivery of
"kickbacks" and "commissions" of the legislators, conspired with the other petitioners to commit the crimes
charged against them.

Certainly, De Asis's defenses, which are anchored on the want of criminal intent, as well as the absence of
all the elements of the crime of Plunder on his part, are better ventilated during trial and not during
preliminary investigation. At the risk of belaboring the point, a preliminary investigation is not the occasion
for the full and exhaustive display of the prosecution's evidence; and the presence or absence of the
elements of the crime charged is evidentiary in nature and is a matter of defense that may be passed upon
only after a full-blown trial on the merits.235

Hence, for De Asis's apparent participation in the PDAF scam, the Ombudsman did not gravely abuse its
discretion in finding probable cause against him for one (1) count of Plunder and fifteen (15) counts of
violation of Section 3 (e) of RA 3019 as charged.

In totality, G.R. Nos. 212593-94, G.R. Nos. 213540-41, G.R. Nos. 213542-43, and G.R. Nos.
213475-76 questioning the March 28, 2014 Joint Resolution and June 4, 2014 Joint Order of the
Ombudsman finding probable cause against Reyes, Janet Napoles, the Napoles siblings, and De Asis should
all be dismissed for lack of merit.

II. Petitions Assailing the Resolutions of the Sandiganbayan.

In G.R. Nos. 213163-78, Reyes ascribes grave abuse of discretion on the part of the Sandiganbayan for
allegedly failing to perform its duty of personally evaluating the evidence on record and, instead, merely
adopting the findings of the Ombudsman in the Joint Resolution dated March 28, 2014.236 She argues that,
had the Sandiganbayan conducted a judicious and independent evaluation of the evidence on record, it
would have determined that there is no probable cause against her for plunder and violations of Section 3
(e) of RA3019.237

On the other hand, in G.R. Nos. 215880-94, the Napoles siblings impute grave abuse of discretion against
the Sandiganbayan in issuing its Resolutions dated September 29, 2014238 and November 14,
2014239 finding probable cause for the issuance of warrants of arrest against them.240 They claim that the
challenged Resolutions which were concluded without any additional evidence presented by the OSP were
hastily issued and decided; that the documents submitted by the prosecution, which were used as bases in
resolving the challenged Resolutions, were mere bare allegations of witnesses that did not relate to the
crime charged and most of them even made no mention of them; that the NBI Complaint submitted by the
prosecution creates serious doubt on their participation; that not even one of the essential elements of
Section 3 (e) of RA 3019 is present in the case in so far as they are concerned; and that there is no proof to
show that they conspired with any of the accused public officers.241

Their arguments fail to persuade.

Once the public prosecutor (or the Ombudsman) determines probable cause and thus, elevates the case to
the trial court (or the Sandiganbayan), a judicial determination of probable cause is made in order to
determine if a warrant of arrest should be issued ordering the detention of the accused. The Court, in People
v. Castillo,242 delineated the functions and purposes of a determination of probable cause made by the public
prosecutor, on the one hand, and the trial court, on the other:
chanRoble svirtual Lawlib ra ry

There are two kinds of determination of probable case: executive and judicial. The executive determination
of probable cause is one made during preliminary investigation. It is a function that properly pertains to the
public prosecutor who is given a broad discretion to determine whether probable cause exists and to charge
those whom he believes to have committed the crime as defined by law and thus should be held for trial.
Otherwise stated, such official has the quasi-judicial authority to determine whether or not a criminal case
must be filed in court. Whether or not that function has been correctly discharged by the public
prosecutor, i.e., whether or not he has made a correct ascertainment of the existence of probable cause in a
case, is a matter that the trial court itself does not and may not be compelled to pass upon.

The judicial determination of probable cause, on the other hand, is one made by the judge to
ascertain whether a warrant of arrest should be issued against the accused. The judge must
satisfy himself that based on the evidence submitted, there is necessity for placing the accused
under custody in order not to frustrate the ends of justice. If the judge finds no probable cause,
the judge cannot be forced to issue the arrest warrant.243 (Emphasis and underscoring supplied)
As above-articulated, the executive determination of probable cause concerns itself with whether there is
enough evidence to support an Information being filed. The judicial determination of probable cause, on the
other hand, determines whether a warrant of arrest should be issued.244

This notwithstanding, the Court in Mendoza v. People245 (Mendoza) clarified that the trial court (or the
Sandiganbayan) is given three (3) distinct options upon the filing of a criminal information before it, namely
to: (a) dismiss the case if the evidence on record clearly failed to establish probable cause; (b) issue a
warrant of arrest if it finds probable cause; and (c) order the prosecutor to present additional evidence in
case of doubt as to the existence of probable cause.246 The Court went on to elaborate that "the option to
order the prosecutor to present additional evidence is not mandatory" and reiterated that "the court's first
option x x x is for it to 'immediately dismiss the case if the evidence on record clearly fails to establish
probable cause.'"247

Verily, when a criminal Information is filed before the trial court, the judge, motu proprio or upon motion of
the accused, is entitled to make his own assessment of the evidence on record to determine whether there
is probable cause to order the arrest of the accused and proceed with the trial; or in the absence thereof, to
order the immediate dismissal of the criminal case.248 This is in line with the fundamental doctrine that "once
a complaint or information is filed in court, any disposition of the case, whether as to its dismissal or the
conviction or the acquittal of the accused, rests in the sound discretion of the court."249 Nevertheless, the
Court, in Mendoza cautions the trial courts in proceeding with dismissals of this nature:
chanRoble svirtual Lawlib ra ry

Although jurisprudence and procedural rules allow it, a judge must always proceed with caution in
dismissing cases due to lack of probable cause, considering the preliminary nature of the evidence before it.
It is only when he or she finds that the evidence on hand absolutely fails to support a finding of probable
cause that he or she can dismiss the case. On the other hand, if a judge finds probable cause, he or she
must not hesitate to proceed with arraignment and trial in order that justice may be served.250 ChanRoble sVirtualawli bra ry

A careful study of the records yields the conclusion that the requirement to personally evaluate the report of
the Ombudsman, and its supporting documents, was discharged by the Sandiganbayan when it explicitly
declared in its Resolution251 dated July 3, 2014 that it had "personally [read] and [evaluated] the
Information, the Joint Resolution dated March 28, 2013 and Joint Order dated June 4, 2013 of the
[Ombudsman], together with the above-enumerated documents, including their annexes and attachments,
which are all part of the records of the preliminary investigation x x x."252 A similar pronouncement was
made by the Sandiganbayan in its Resolution253 dated September 29, 2014, wherein it was said that "[a]fter
further considering the records of these cases and due deliberations, the Court finds the existence of
probable cause against the said accused x x x."254 Later on, in a Resolution255 dated November 14, 2014, the
Sandiganbayan affirmed its earlier findings when it held that the presence of probable cause against all the
accused "was already unequivocally settled x x x in its [Resolution] dated July 3, 2014 x x x."256 Besides, the
Sandiganbayan should be accorded with the presumption of regularity in the performance of its official
duties.257 This presumption was not convincingly overcome by either Reyes or the Napoles siblings through
clear and convincing evidence, and hence, should prevail.258 As such, the Ombudsman's finding of probable
cause against, inter alia, Reyes and the Napoles siblings was judicially confirmed by the Sandiganbayan
when it examined the evidence, found probable cause, and issued warrants of arrest against them.259

Also, the Court cannot lend any credence to Reyes's protestations of haste on the part of the Sandiganbayan
in issuing the assailed Resolutions, absent any clear showing that the presumed regularity of the
proceedings has been breached. Reyes would do well to be reminded of the Court's ruling in Leviste v.
Alameda260 wherein it was instructed that "[s]peed in the conduct of proceedings by a judicial or quasi-
judicial officer cannot per se be instantly attributed to an injudicious performance of functions. For one's
prompt dispatch may be another's undue haste. The orderly administration of justice remains as the
paramount and constant consideration, with particular regard of the circumstances peculiar to each case."261

Finally, no grave abuse of discretion may be imputed on the part of the Sandiganbayan in denying Reyes's
motion to suspend proceedings against her in view of her filing of a petition for certiorari questioning the
Ombudsman's issuances before the Court, i.e., G.R. Nos. 212593-94. Under Section 7, Rule 65262 of the
Rules of Court, a mere pendency of a special civil action for certiorari in relation to a case pending before
the court a quo does not ipso facto stay the proceedings therein, unless the higher court issues a temporary
restraining order or a writ of preliminary injunction against the conduct of such proceedings. Otherwise
stated, a petition for certiorari does not divest the lower courts of jurisdiction validly acquired over the case
pending before them. Unlike an appeal, a petition for certiorari is an original action; it is not a continuation
of the proceedings in the lower court. It is designed to correct only errors of jurisdiction, including grave
abuse of discretion amounting to lack or excess of jurisdiction. Thus, under Section 7 of Rule 65, the higher
court should issue against the public respondent a temporary restraining order or a writ of preliminary
injunction in order to interrupt the course of the principal case. The petitioner in a Rule 65 petition has the
burden of proof to show that there is a meritorious ground for the issuance of an injunctive writ or order to
suspend the proceedings before the public respondent. She should show the existence of an, urgent
necessity for the writ or order, so that serious damage may be prevented.263 In this case, since the Court did
not issue any temporary restraining order and/or a writ of preliminary injunction in G.R. Nos. 212593-94,
then the Sandiganbayan cannot be faulted for continuing with the proceedings before it.

Hence, overall, the Sandiganbayan did not gravely abuse its discretion in judicially determining the existence
of probable cause against Reyes and the Napoles siblings; and in denying Reyes's Urgent Motion to Suspend
Proceedings. Perforce, the dismissal of G.R. Nos. 213163-78 and G.R. Nos. 215880-94 is in order. chan roble slaw
WHEREFORE, the petitions are DISMISSED for lack of merit. Accordingly, the assailed Resolutions and
Orders of the Office of the Ombudsman and the Sandiganbayan are hereby AFFIRMED.

SO ORDERED. cralawlawlibra ry

G.R. No. 157870 November 3, 2008

SOCIAL JUSTICE SOCIETY (SJS), petitioner

vs.
DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT AGENCY
(PDEA), respondents.

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

G.R. No. 158633 November 3, 2008

ATTY. MANUEL J. LASERNA, JR., petitioner

vs.
DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT AGENCY, respondents.

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

G.R. No. 161658 November 3, 2008

AQUILINO Q. PIMENTEL, JR., petitioner

vs.
COMMISSION ON ELECTIONS, respondents.

DECISION

VELASCO, JR., J.:

In these kindred petitions, the constitutionality of Section 36 of Republic Act No. (RA) 9165, otherwise
known as the Comprehensive Dangerous Drugs Act of 2002, insofar as it requires mandatory drug testing
of candidates for public office, students of secondary and tertiary schools, officers and employees of
public and private offices, and persons charged before the prosecutor's office with certain offenses,
among other personalities, is put in issue.

As far as pertinent, the challenged section reads as follows:

SEC. 36. Authorized Drug Testing. - Authorized drug testing shall be done by any government
forensic laboratories or by any of the drug testing laboratories accredited and monitored by the
DOH to safeguard the quality of the test results. x x x The drug testing shall employ, among
others, two (2) testing methods, the screening test which will determine the positive result as well
as the type of drug used and the confirmatory test which will confirm a positive screening test. x x
x The following shall be subjected to undergo drug testing:

xxxx
 (c) Students of secondary and tertiary schools. - Students of secondary and tertiary schools shall,
pursuant to the related rules and regulations as contained in the school's student handbook and
with notice to the parents, undergo a random drug testing x x x;

(d) Officers and employees of public and private offices. - Officers and employees of public and
private offices, whether domestic or overseas, shall be subjected to undergo a random drug test
as contained in the company's work rules and regulations, x x x for purposes of reducing the risk
in the workplace. Any officer or employee found positive for use of dangerous drugs shall be dealt
with administratively which shall be a ground for suspension or termination, subject to the
provisions of Article 282 of the Labor Code and pertinent provisions of the Civil Service Law;

xxxx

(f) All persons charged before the prosecutor's office with a criminal offense having an imposable
penalty of imprisonment of not less than six (6) years and one (1) day shall undergo a mandatory
drug test;

(g) All candidates for public office whether appointed or elected both in the national or local
government shall undergo a mandatory drug test.

In addition to the above stated penalties in this Section, those found to be positive for dangerous drugs
use shall be subject to the provisions of Section 15 of this Act.

G.R. No. 161658 (Aquilino Q. Pimentel, Jr. v. Commission on Elections)

On December 23, 2003, the Commission on Elections (COMELEC) issued Resolution No. 6486,
prescribing the rules and regulations on the mandatory drug testing of candidates for public office in
connection with the May 10, 2004 synchronized national and local elections. The pertinent portions of the
said resolution read as follows:

WHEREAS, Section 36 (g) of Republic Act No. 9165 provides:

SEC. 36. Authorized Drug Testing. - x x x

xxxx

(g) All candidates for public office x x x both in the national or local government shall undergo a
mandatory drug test.

WHEREAS, Section 1, Article XI of the 1987 Constitution provides that public officers and
employees must at all times be accountable to the people, serve them with utmost responsibility,
integrity, loyalty and efficiency;

WHEREAS, by requiring candidates to undergo mandatory drug test, the public will know the
quality of candidates they are electing and they will be assured that only those who can serve
with utmost responsibility, integrity, loyalty, and efficiency would be elected x x x.

NOW THEREFORE, The [COMELEC], pursuant to the authority vested in it under the
Constitution, Batas Pambansa Blg. 881 (Omnibus Election Code), [RA] 9165 and other election
laws, RESOLVED to promulgate, as it hereby promulgates, the following rules and regulations on
the conduct of mandatory drug testing to candidates for public office[:]
 SECTION 1. Coverage. - All candidates for public office, both national and local, in the May
10, 2004 Synchronized National and Local Elections shall undergo mandatory drug test in
government forensic laboratories or any drug testing laboratories monitored and accredited by the
Department of Health.

SEC. 3. x x x

On March 25, 2004, in addition to the drug certificates filed with their respective offices, the
Comelec Offices and employees concerned shall submit to the Law Department two (2) separate
lists of candidates. The first list shall consist of those candidates who complied with the
mandatory drug test while the second list shall consist of those candidates who failed to comply x
x x.

SEC. 4. Preparation and publication of names of candidates. - Before the start of the campaign
period, the [COMELEC] shall prepare two separate lists of candidates. The first list shall consist
of those candidates who complied with the mandatory drug test while the second list shall consist
of those candidates who failed to comply with said drug test. x x x

SEC. 5. Effect of failure to undergo mandatory drug test and file drug test certificate. - No person
elected to any public office shall enter upon the duties of his office until he has undergone
mandatory drug test and filed with the offices enumerated under Section 2 hereof the drug test
certificate herein required. (Emphasis supplied.)

Petitioner Aquilino Q. Pimentel, Jr., a senator of the Republic and a candidate for re - election in the May
10, 2004 elections,1 filed a Petition for Certiorari and Prohibition under Rule 65. In it, he seeks (1) to
nullify Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 dated December 23, 2003 for being
unconstitutional in that they impose a qualification for candidates for senators in addition to those already
provided for in the 1987 Constitution; and (2) to enjoin the COMELEC from implementing Resolution No.
6486.

Pimentel invokes as legal basis for his petition Sec. 3, Article VI of the Constitution, which states:

SECTION 3. No person shall be a Senator unless he is a natural - born citizen of the Philippines,
and, on the day of the election, is at least thirty - five years of age, able to read and write, a
registered voter, and a resident of the Philippines for not less than two years immediately
preceding the day of the election.

According to Pimentel, the Constitution only prescribes a maximum of five (5) qualifications for one to be
a candidate for, elected to, and be a member of the Senate. He says that both the Congress and
COMELEC, by requiring, via RA 9165 and Resolution No. 6486, a senatorial aspirant, among other
candidates, to undergo a mandatory drug test, create an additional qualification that all candidates for
senator must first be certified as drug free. He adds that there is no provision in the Constitution
authorizing the Congress or COMELEC to expand the qualification requirements of candidates for
senator.

G.R. No. 157870 (Social Justice Society v. Dangerous

Drugs Board and Philippine Drug Enforcement Agency)

In its Petition for Prohibition under Rule 65, petitioner Social Justice Society (SJS), a registered political
party, seeks to prohibit the Dangerous Drugs Board (DDB) and the Philippine Drug Enforcement Agency
(PDEA) from enforcing paragraphs (c), (d), (f), and (g) of Sec. 36 of RA 9165 on the ground that they are
constitutionally infirm. For one, the provisions constitute undue delegation of legislative power when they
give unbridled discretion to schools and employers to determine the manner of drug testing. For another,
the provisions trench in the equal protection clause inasmuch as they can be used to harass a student or
an employee deemed undesirable. And for a third, a person's constitutional right against unreasonable
searches is also breached by said provisions.

G.R. No. 158633 (Atty. Manuel J. Laserna, Jr. v. Dangerous

Drugs Board and Philippine Drug Enforcement Agency)

Petitioner Atty. Manuel J. Laserna, Jr., as citizen and taxpayer, also seeks in his Petition for Certiorari and
Prohibition under Rule 65 that Sec. 36(c), (d), (f), and (g) of RA 9165 be struck down as unconstitutional
for infringing on the constitutional right to privacy, the right against unreasonable search and seizure, and
the right against self - incrimination, and for being contrary to the due process and equal protection
guarantees.

The Issue on Locus Standi

First off, we shall address the justiciability of the cases at bench and the matter of the standing of
petitioners SJS and Laserna to sue. As respondents DDB and PDEA assert, SJS and Laserna failed to
allege any incident amounting to a violation of the constitutional rights mentioned in their separate
petitions.2

It is basic that the power of judicial review can only be exercised in connection with a bona
fide controversy which involves the statute sought to be reviewed.3 But even with the presence of an
actual case or controversy, the Court may refuse to exercise judicial review unless the constitutional
question is brought before it by a party having the requisite standing to challenge it. 4 To have standing,
one must establish that he or she has suffered some actual or threatened injury as a result of the
allegedly illegal conduct of the government; the injury is fairly traceable to the challenged action; and the
injury is likely to be redressed by a favorable action.5

The rule on standing, however, is a matter of procedure; hence, it can be relaxed for non - traditional
plaintiffs, like ordinary citizens, taxpayers, and legislators when the public interest so requires, such as
when the matter is of transcendental importance, of overarching significance to society, or of paramount
public interest.6 There is no doubt that Pimentel, as senator of the Philippines and candidate for the May
10, 2004 elections, possesses the requisite standing since he has substantial interests in the subject
matter of the petition, among other preliminary considerations. Regarding SJS and Laserna, this Court is
wont to relax the rule on locus standi owing primarily to the transcendental importance and the paramount
public interest involved in the enforcement of Sec. 36 of RA 9165.

The Consolidated Issues

The principal issues before us are as follows:

(1) Do Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 impose an additional qualification for
candidates for senator? Corollarily, can Congress enact a law prescribing qualifications for candidates for
senator in addition to those laid down by the Constitution? and

(2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA 9165 unconstitutional? Specifically, do these
paragraphs violate the right to privacy, the right against unreasonable searches and seizure, and the
equal protection clause? Or do they constitute undue delegation of legislative power?

Pimentel Petition
(Constitutionality of Sec. 36[g] of RA 9165 and
COMELEC Resolution No. 6486)
In essence, Pimentel claims that Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 illegally
impose an additional qualification on candidates for senator. He points out that, subject to the provisions
on nuisance candidates, a candidate for senator needs only to meet the qualifications laid down in Sec. 3,
Art. VI of the Constitution, to wit: (1) citizenship, (2) voter registration, (3) literacy, (4) age, and (5)
residency. Beyond these stated qualification requirements, candidates for senator need not possess any
other qualification to run for senator and be voted upon and elected as member of the Senate. The
Congress cannot validly amend or otherwise modify these qualification standards, as it cannot disregard,
evade, or weaken the force of a constitutional mandate,7 or alter or enlarge the Constitution.

Pimentel's contention is well - taken. Accordingly, Sec. 36(g) of RA 9165 should be, as it is hereby
declared as, unconstitutional. It is basic that if a law or an administrative rule violates any norm of the
Constitution, that issuance is null and void and has no effect. The Constitution is the basic law to which all
laws must conform; no act shall be valid if it conflicts with the Constitution. 8 In the discharge of their
defined functions, the three departments of government have no choice but to yield obedience to the
commands of the Constitution. Whatever limits it imposes must be observed.9

Congress' inherent legislative powers, broad as they may be, are subject to certain limitations. As early as
1927, in Government v. Springer, the Court has defined, in the abstract, the limits on legislative power in
the following wise:

Someone has said that the powers of the legislative department of the Government, like the
boundaries of the ocean, are unlimited. In constitutional governments, however, as well as
governments acting under delegated authority, the powers of each of the departments x x x are
limited and confined within the four walls of the constitution or the charter, and each department
can only exercise such powers as are necessarily implied from the given powers. The
Constitution is the shore of legislative authority against which the waves of legislative enactment
may dash, but over which it cannot leap.10

Thus, legislative power remains limited in the sense that it is subject to substantive and constitutional
limitations which circumscribe both the exercise of the power itself and the allowable subjects of
legislation.11 The substantive constitutional limitations are chiefly found in the Bill of Rights12 and other
provisions, such as Sec. 3, Art. VI of the Constitution prescribing the qualifications of candidates for
senators.

In the same vein, the COMELEC cannot, in the guise of enforcing and administering election laws or
promulgating rules and regulations to implement Sec. 36(g), validly impose qualifications on candidates
for senator in addition to what the Constitution prescribes. If Congress cannot require a candidate for
senator to meet such additional qualification, the COMELEC, to be sure, is also without such power. The
right of a citizen in the democratic process of election should not be defeated by unwarranted impositions
of requirement not otherwise specified in the Constitution.13

Sec. 36(g) of RA 9165, as sought to be implemented by the assailed COMELEC resolution, effectively
enlarges the qualification requirements enumerated in the Sec. 3, Art. VI of the Constitution. As couched,
said Sec. 36(g) unmistakably requires a candidate for senator to be certified illegal - drug clean, obviously
as a pre - condition to the validity of a certificate of candidacy for senator or, with like effect, a
condition sine qua non to be voted upon and, if proper, be proclaimed as senator - elect. The COMELEC
resolution completes the chain with the proviso that "[n]o person elected to any public office shall enter
upon the duties of his office until he has undergone mandatory drug test." Viewed, therefore, in its proper
context, Sec. 36(g) of RA 9165 and the implementing COMELEC Resolution add another qualification
layer to what the 1987 Constitution, at the minimum, requires for membership in the Senate. Whether or
not the drug - free bar set up under the challenged provision is to be hurdled before or after election is
really of no moment, as getting elected would be of little value if one cannot assume office for non -
compliance with the drug - testing requirement.
It may of course be argued, in defense of the validity of Sec. 36(g) of RA 9165, that the provision does not
expressly state that non - compliance with the drug test imposition is a disqualifying factor or would work
to nullify a certificate of candidacy. This argument may be accorded plausibility if the drug test
requirement is optional. But the particular section of the law, without exception, made drug - testing on
those covered mandatory, necessarily suggesting that the obstinate ones shall have to suffer the adverse
consequences for not adhering to the statutory command. And since the provision deals with candidates
for public office, it stands to reason that the adverse consequence adverted to can only refer to and
revolve around the election and the assumption of public office of the candidates. Any other construal
would reduce the mandatory nature of Sec. 36(g) of RA 9165 into a pure jargon without meaning and
effect whatsoever.

While it is anti - climactic to state it at this juncture, COMELEC Resolution No. 6486 is no longer
enforceable, for by its terms, it was intended to cover only the May 10, 2004 synchronized elections and
the candidates running in that electoral event. Nonetheless, to obviate repetition, the Court deems it
appropriate to review and rule, as it hereby rules, on its validity as an implementing issuance.

It ought to be made abundantly clear, however, that the unconstitutionality of Sec. 36(g) of RA 9165 is
rooted on its having infringed the constitutional provision defining the qualification or eligibility
requirements for one aspiring to run for and serve as senator.

SJS Petition
(Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165)

The drug test prescribed under Sec. 36(c), (d), and (f) of RA 9165 for secondary and tertiary level
students and public and private employees, while mandatory, is a random and suspicionless
arrangement. The objective is to stamp out illegal drug and safeguard in the process "the well being of
[the] citizenry, particularly the youth, from the harmful effects of dangerous drugs." This statutory purpose,
per the policy - declaration portion of the law, can be achieved via the pursuit by the state of "an intensive
and unrelenting campaign against the trafficking and use of dangerous drugs x x x through an integrated
system of planning, implementation and enforcement of anti - drug abuse policies, programs and
projects."14 The primary legislative intent is not criminal prosecution, as those found positive for illegal
drug use as a result of this random testing are not necessarily treated as criminals. They may even be
exempt from criminal liability should the illegal drug user consent to undergo rehabilitation. Secs. 54 and
55 of RA 9165 are clear on this point:

Sec. 54. Voluntary Submission of a Drug Dependent to Confinement, Treatment and

Rehabilitation. - A drug dependent or any person who violates Section 15 of this Act may, by
himself/herself or through his/her parent, [close relatives] x x x apply to the Board x x x for
treatment and rehabilitation of the drug dependency. Upon such application, the Board shall bring
forth the matter to the Court which shall order that the applicant be examined for drug
dependency. If the examination x x x results in the certification that the applicant is a drug
dependent, he/she shall be ordered by the Court to undergo treatment and rehabilitation in a
Center designated by the Board x x x.

xxxx

Sec. 55. Exemption from the Criminal Liability Under the Voluntary Submission Program. - A drug
dependent under the voluntary submission program, who is finally discharged from confinement,
shall be exempt from the criminal liability under Section 15 of this Act subject to the following
conditions:

xxxx
School children, the US Supreme Court noted, are most vulnerable to the physical, psychological, and
addictive effects of drugs. Maturing nervous systems of the young are more critically impaired by
intoxicants and are more inclined to drug dependency. Their recovery is also at a depressingly low rate. 15

The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected by
the guarantee against unreasonable search and seizure16 under Sec. 2, Art. III17 of the Constitution. But
while the right to privacy has long come into its own, this case appears to be the first time that the validity
of a state - decreed search or intrusion through the medium of mandatory random drug testing among
students and employees is, in this jurisdiction, made the focal point. Thus, the issue tendered in these
proceedings is veritably one of first impression.

US jurisprudence is, however, a rich source of persuasive jurisprudence. With respect to random drug
testing among school children, we turn to the teachings of Vernonia School District 47J v. Acton
(Vernonia) and Board of Education of Independent School District No. 92 of Pottawatomie County, et al.
v. Earls, et al. (Board of Education),18 both fairly pertinent US Supreme Court - decided cases involving
the constitutionality of governmental search.

In Vernonia, school administrators in Vernonia, Oregon wanted to address the drug menace in their
respective institutions following the discovery of frequent drug use by school athletes. After consultation
with the parents, they required random urinalysis drug testing for the school's athletes. James Acton, a
high school student, was denied participation in the football program after he refused to undertake the
urinalysis drug testing. Acton forthwith sued, claiming that the school's drug testing policy violated, inter
alia, the Fourth Amendment19 of the US Constitution.

The US Supreme Court, in fashioning a solution to the issues raised in Vernonia, considered the
following: (1) schools stand in loco parentis over their students; (2) school children, while not shedding
their constitutional rights at the school gate, have less privacy rights; (3) athletes have less privacy rights
than non - athletes since the former observe communal undress before and after sports events; (4) by
joining the sports activity, the athletes voluntarily subjected themselves to a higher degree of school
supervision and regulation; (5) requiring urine samples does not invade a student's privacy since a
student need not undress for this kind of drug testing; and (6) there is need for the drug testing because
of the dangerous effects of illegal drugs on the young. The US Supreme Court held that the policy
constituted reasonable search under the Fourth20 and 14th Amendments and declared the random drug -
testing policy constitutional.

In Board of Education, the Board of Education of a school in Tecumseh, Oklahoma required a drug test
for high school students desiring to join extra - curricular activities. Lindsay Earls, a member of the show
choir, marching band, and academic team declined to undergo a drug test and averred that the drug -
testing policy made to apply to non - athletes violated the Fourth and 14th Amendments. As Earls argued,
unlike athletes who routinely undergo physical examinations and undress before their peers in locker
rooms, non - athletes are entitled to more privacy.

The US Supreme Court, citing Vernonia, upheld the constitutionality of drug testing even among non -
athletes on the basis of the school's custodial responsibility and authority. In so ruling, said court made no
distinction between a non - athlete and an athlete. It ratiocinated that schools and teachers act in place of
the parents with a similar interest and duty of safeguarding the health of the students. And in holding that
the school could implement its random drug - testing policy, the Court hinted that such a test was a kind
of search in which even a reasonable parent might need to engage.

In sum, what can reasonably be deduced from the above two cases and applied to this jurisdiction are:
(1) schools and their administrators stand in loco parentis with respect to their students; (2) minor
students have contextually fewer rights than an adult, and are subject to the custody and supervision of
their parents, guardians, and schools; (3) schools, acting in loco parentis, have a duty to safeguard the
health and well - being of their students and may adopt such measures as may reasonably be necessary
to discharge such duty; and (4) schools have the right to impose conditions on applicants for admission
that are fair, just, and non-discriminatory.

Guided by Vernonia and Board of Education, the Court is of the view and so holds that the provisions of
RA 9165 requiring mandatory, random, and suspicionless drug testing of students are constitutional.
Indeed, it is within the prerogative of educational institutions to require, as a condition for admission,
compliance with reasonable school rules and regulations and policies. To be sure, the right to enroll is not
absolute; it is subject to fair, reasonable, and equitable requirements.

The Court can take judicial notice of the proliferation of prohibited drugs in the country that threatens the
well - being of the people,21 particularly the youth and school children who usually end up as victims.
Accordingly, and until a more effective method is conceptualized and put in motion, a random drug testing
of students in secondary and tertiary schools is not only acceptable but may even be necessary if the
safety and interest of the student population, doubtless a legitimate concern of the government, are to be
promoted and protected. To borrow from Vernonia, "[d]eterring drug use by our Nation's schoolchildren is
as important as enhancing efficient enforcement of the Nation's laws against the importation of drugs"; the
necessity for the State to act is magnified by the fact that the effects of a drug - infested school are visited
not just upon the users, but upon the entire student body and faculty.22 Needless to stress, the random
testing scheme provided under the law argues against the idea that the testing aims to incriminate
unsuspecting individual students.

Just as in the case of secondary and tertiary level students, the mandatory but random drug test
prescribed by Sec. 36 of RA 9165 for officers and employees of public and private offices is justifiable,
albeit not exactly for the same reason. The Court notes in this regard that petitioner SJS, other than
saying that "subjecting almost everybody to drug testing, without probable cause, is unreasonable, an
unwarranted intrusion of the individual right to privacy,"23 has failed to show how the mandatory, random,
and suspicionless drug testing under Sec. 36(c) and (d) of RA 9165 violates the right to privacy and
constitutes unlawful and/or unconsented search under Art. III, Secs. 1 and 2 of the
Constitution.24 Petitioner Laserna's lament is just as simplistic, sweeping, and gratuitous and does not
merit serious consideration. Consider what he wrote without elaboration:

The US Supreme Court and US Circuit Courts of Appeals have made various rulings on the
constitutionality of mandatory drug tests in the school and the workplaces. The US courts have
been consistent in their rulings that the mandatory drug tests violate a citizen's constitutional right
to privacy and right against unreasonable search and seizure. They are quoted extensively
hereinbelow.25

The essence of privacy is the right to be left alone.26 In context, the right to privacy means the right to be
free from unwarranted exploitation of one's person or from intrusion into one's private activities in such a
way as to cause humiliation to a person's ordinary sensibilities. 27 And while there has been general
agreement as to the basic function of the guarantee against unwarranted search, "translation of the
abstract prohibition against ‘unreasonable searches and seizures' into workable broad guidelines for the
decision of particular cases is a difficult task," to borrow from C. Camara v. Municipal Court.28 Authorities
are agreed though that the right to privacy yields to certain paramount rights of the public and defers to
the state's exercise of police power.29

As the warrantless clause of Sec. 2, Art III of the Constitution is couched and as has been held,
"reasonableness" is the touchstone of the validity of a government search or intrusion. 30 And whether a
search at issue hews to the reasonableness standard is judged by the balancing of the government -
mandated intrusion on the individual's privacy interest against the promotion of some compelling state
interest.31 In the criminal context, reasonableness requires showing of probable cause to be personally
determined by a judge. Given that the drug - testing policy for employees--and students for that matter--
under RA 9165 is in the nature of administrative search needing what was referred to in Vernonia as
"swift and informal disciplinary procedures," the probable - cause standard is not required or even
practicable. Be that as it may, the review should focus on the reasonableness of the challenged
administrative search in question.

The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon which
the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution, intrudes.
In this case, the office or workplace serves as the backdrop for the analysis of the privacy expectation of
the employees and the reasonableness of drug testing requirement. The employees' privacy interest in an
office is to a large extent circumscribed by the company's work policies, the collective bargaining
agreement, if any, entered into by management and the bargaining unit, and the inherent right of the
employer to maintain discipline and efficiency in the workplace. Their privacy expectation in a regulated
office environment is, in fine, reduced; and a degree of impingement upon such privacy has been upheld.

Just as defining as the first factor is the character of the intrusion authorized by the challenged law.
Reduced to a question form, is the scope of the search or intrusion clearly set forth, or, as formulated
in Ople v. Torres, is the enabling law authorizing a search "narrowly drawn" or "narrowly focused"? 32

The poser should be answered in the affirmative. For one, Sec. 36 of RA 9165 and its implementing rules
and regulations (IRR), as couched, contain provisions specifically directed towards preventing a situation
that would unduly embarrass the employees or place them under a humiliating experience. While every
officer and employee in a private establishment is under the law deemed forewarned that he or she may
be a possible subject of a drug test, nobody is really singled out in advance for drug testing. The goal is to
discourage drug use by not telling in advance anyone when and who is to be tested. And as may be
observed, Sec. 36(d) of RA 9165 itself prescribes what, in Ople, is a narrowing ingredient by providing
that the employees concerned shall be subjected to "random drug test as contained in the company's
work rules and regulations x x x for purposes of reducing the risk in the work place."

For another, the random drug testing shall be undertaken under conditions calculated to protect as much
as possible the employee's privacy and dignity. As to the mechanics of the test, the law specifies that the
procedure shall employ two testing methods, i.e., the screening test and the confirmatory test, doubtless
to ensure as much as possible the trustworthiness of the results. But the more important consideration
lies in the fact that the test shall be conducted by trained professionals in access - controlled laboratories
monitored by the Department of Health (DOH) to safeguard against results tampering and to ensure an
accurate chain of custody.33 In addition, the IRR issued by the DOH provides that access to the drug
results shall be on the "need to know" basis;34 that the "drug test result and the records shall be [kept]
confidential subject to the usual accepted practices to protect the confidentiality of the test
results."35 Notably, RA 9165 does not oblige the employer concerned to report to the prosecuting
agencies any information or evidence relating to the violation of the Comprehensive Dangerous Drugs
Act received as a result of the operation of the drug testing. All told, therefore, the intrusion into the
employees' privacy, under RA 9165, is accompanied by proper safeguards, particularly against
embarrassing leakages of test results, and is relatively minimal.

To reiterate, RA 9165 was enacted as a measure to stamp out illegal drug in the country and thus protect
the well - being of the citizens, especially the youth, from the deleterious effects of dangerous drugs. The
law intends to achieve this through the medium, among others, of promoting and resolutely pursuing a
national drug abuse policy in the workplace via a mandatory random drug test. 36 To the Court, the need
for drug testing to at least minimize illegal drug use is substantial enough to override the individual's
privacy interest under the premises. The Court can consider that the illegal drug menace cuts across
gender, age group, and social - economic lines. And it may not be amiss to state that the sale,
manufacture, or trafficking of illegal drugs, with their ready market, would be an investor's dream were it
not for the illegal and immoral components of any of such activities. The drug problem has hardly abated
since the martial law public execution of a notorious drug trafficker. The state can no longer assume a laid
back stance with respect to this modern - day scourge. Drug enforcement agencies perceive a mandatory
random drug test to be an effective way of preventing and deterring drug use among employees in private
offices, the threat of detection by random testing being higher than other modes. The Court holds that the
chosen method is a reasonable and enough means to lick the problem.
Taking into account the foregoing factors, i.e., the reduced expectation of privacy on the part of the
employees, the compelling state concern likely to be met by the search, and the well - defined limits set
forth in the law to properly guide authorities in the conduct of the random testing, we hold that the
challenged drug test requirement is, under the limited context of the case, reasonable and, ergo,
constitutional.

Like their counterparts in the private sector, government officials and employees also labor under
reasonable supervision and restrictions imposed by the Civil Service law and other laws on public
officers, all enacted to promote a high standard of ethics in the public service. 37 And if RA 9165 passes
the norm of reasonableness for private employees, the more reason that it should pass the test for civil
servants, who, by constitutional command, are required to be accountable at all times to the people and
to serve them with utmost responsibility and efficiency. 38

Petitioner SJS' next posture that Sec. 36 of RA 9165 is objectionable on the ground of undue delegation
of power hardly commends itself for concurrence. Contrary to its position, the provision in question is not
so extensively drawn as to give unbridled options to schools and employers to determine the manner of
drug testing. Sec. 36 expressly provides how drug testing for students of secondary and tertiary schools
and officers/employees of public/private offices should be conducted. It enumerates the persons who
shall undergo drug testing. In the case of students, the testing shall be in accordance with the school
rules as contained in the student handbook and with notice to parents. On the part of officers/employees,
the testing shall take into account the company's work rules. In either case, the random procedure shall
be observed, meaning that the persons to be subjected to drug test shall be picked by chance or in an
unplanned way. And in all cases, safeguards against misusing and compromising the confidentiality of the
test results are established.

Lest it be overlooked, Sec. 94 of RA 9165 charges the DDB to issue, in consultation with the DOH,
Department of the Interior and Local Government, Department of Education, and Department of Labor
and Employment, among other agencies, the IRR necessary to enforce the law. In net effect then, the
participation of schools and offices in the drug testing scheme shall always be subject to the IRR of RA
9165. It is, therefore, incorrect to say that schools and employers have unchecked discretion to determine
how often, under what conditions, and where the drug tests shall be conducted.

The validity of delegating legislative power is now a quiet area in the constitutional landscape. 39 In the
face of the increasing complexity of the task of the government and the increasing inability of the
legislature to cope directly with the many problems demanding its attention, resort to delegation of power,
or entrusting to administrative agencies the power of subordinate legislation, has become imperative, as
here.

Laserna Petition (Constitutionality of Sec. 36[c], [d],

[f], and [g] of RA 9165)

Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the Court finds no valid justification for
mandatory drug testing for persons accused of crimes. In the case of students, the constitutional viability
of the mandatory, random, and suspicionless drug testing for students emanates primarily from the waiver
by the students of their right to privacy when they seek entry to the school, and from their voluntarily
submitting their persons to the parental authority of school authorities. In the case of private and public
employees, the constitutional soundness of the mandatory, random, and suspicionless drug testing
proceeds from the reasonableness of the drug test policy and requirement.

We find the situation entirely different in the case of persons charged before the public prosecutor's office
with criminal offenses punishable with six (6) years and one (1) day imprisonment. The operative
concepts in the mandatory drug testing are "randomness" and "suspicionless." In the case of persons
charged with a crime before the prosecutor's office, a mandatory drug testing can never be random or
suspicionless. The ideas of randomness and being suspicionless are antithetical to their being made
defendants in a criminal complaint. They are not randomly picked; neither are they beyond suspicion.
When persons suspected of committing a crime are charged, they are singled out and are impleaded
against their will. The persons thus charged, by the bare fact of being haled before the prosecutor's office
and peaceably submitting themselves to drug testing, if that be the case, do not necessarily consent to
the procedure, let alone waive their right to privacy.40 To impose mandatory drug testing on the accused
is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated
objectives of RA 9165. Drug testing in this case would violate a persons' right to privacy guaranteed
under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably forced to
incriminate themselves.

WHEREFORE, the Court resolves to GRANT the petition in G.R. No. 161658 and declares Sec.
36(g) of RA 9165 and COMELEC Resolution No. 6486 as UNCONSTITUTIONAL; and to PARTIALLY
GRANT the petition in G.R. Nos. 157870 and 158633 by declaring Sec. 36(c) and (d) of RA 9165
CONSTITUTIONAL, but declaring its Sec. 36(f) UNCONSTITUTIONAL. All concerned agencies are,
accordingly, permanently enjoined from implementing Sec. 36(f) and (g) of RA 9165. No costs.

SO ORDERED.

G.R. No. 176830 February 11, 2014

SATURNINO C. OCAMPO, Petitioner,

vs.
HON. EPHREM S. ABANDO, in his capacity as Presiding Judge of the Regional Trial Court of
Hilongos, Leyte, Branch 18, CESAR M. MERIN, in. his capacity as Approving Prosecutor and
Officer-in-Charge, ROSULO U. VIVERO, in his capacity as Investigating Prosecutor, RAUL M.
GONZALEZ, in his capacity as Secretary of the Department of Justice, Respondents.

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

G.R. No. 185587

RANDALL B. ECHANIS, Petitioner,

vs.
HON. THELMA BUNYl-MEDINA, in her capacity as Presiding Judge of the Regional Trial Court
of Manila, Branch 32, HON. EPHREM S. ABANDO, in his capacity as Presiding Judge of the
Regional Trial Court of Hilongos, Leyte, Branch 18, CESAR M. MERIN, in his capacity as
Approving Prosecutor and Officer-in-Charge, ROSULO U. VIVERO, in his capacity as
Investigating Prosecutor, RAUL M. GONZALEZ, in his capacity as Secretary of the
Department of Justice, Respondents.

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

G.R. No. 185636

RAFAEL G. BAYLOSIS, Petitioner,

vs.
HON. THELMA BUNYI-MEDINA, in her capacity as Presiding Judge of the Regional Trial Court
of Manila, Branch 32, HON. EPHREM S. ABANDO, in his capacity as Presiding Judge of the
Regional Trial Court of Hilongos, Leyte, Branch 18, CESAR M. MERIN, in his capacity as
Approving Prosecutor and Officer-in-Charge, ROSULO U. VIVERO, in his capacity as
Investigating Prosecutor, RAUL M. GONZALEZ, in his capacity as Secretary of the
Department of Justice, Respondents.

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

G.R. No. 190005

VICENTE P. LADLAD, Petitioner,

vs.
HON. THELMA BUNYI-MEDINA, in her capacity as Presiding Judge of the Regional Trial Court
of Manila, Branch 32, and the PEOPLE OF THE PHILIPPINES, Respondents.

DECISION

SERENO, CJ.:

On 26 August 2006, a mass grave was discovered by elements of the 43rd Infantry Brigade of the
Philippine Army at Sitio Sapang Daco, Barangay Kaulisihan, Inopacan, Leyte.1 The mass grave
contained skeletal remains of individuals believed to be victims of "Operation Venereal Disease"
(Operation VD) launched by members of the Communist Party of the Philippines/New People’s
Army/National Democratic Front of the Philippines (CPP/NPA/NDFP) to purge their ranks of
suspected military informers.

While the doctrine of hierarchy of courts normally precludes a direct invocation of this Court’s
jurisdiction, we take cognizance of these petitions considering that petitioners have chosen to take
recourse directly before us and that the cases are of significant national interest.

Petitioners have raised several issues, but most are too insubstantial to require consideration.
Accordingly, in the exercise of sound judicial discretion and economy, this Court will pass primarily
upon the following:

1. Whether petitioners were denied due process during preliminary investigation and in the
issuance of the warrants of arrest.

2. Whether the murder charges against petitioners should be dismissed under the political
offense doctrine.

ANTECEDENT FACTS

These are petitions for certiorari and prohibition2 seeking the annulment of the orders and resolutions
of public respondents with regard to the indictment and issuance of warrants of arrest against
petitioners for the crime of multiple murder.

Police Chief Inspector George L. Almaden (P C/Insp. Almaden) of the Philippine National Police
(PNP) Regional Office 8 and Staff Judge Advocate Captain Allan Tiu (Army Captain Tiu) of the 8th
Infantry Division of the Philippine Army sent 12 undated letters to the Provincial Prosecutor of Leyte
through Assistant Provincial Prosecutor Rosulo U. Vivero (Prosecutor Vivero).3 The letters requested
appropriate legal action on 12 complaint-affidavits attached therewith accusing 71 named members
of the Communist Party of the Philippines/New People’s Army/National Democratic Front of the
Philippines (CPP/NPA/NDFP) of murder, including petitioners herein along with several other
unnamed members.

The letters narrated that on 26 August 2006, elements of the 43rd Infantry Brigade of the Philippine
Army discovered a mass grave site of the CPP/NPA/NDFP at Sitio Sapang Daco, Barangay
Kaulisihan, Inopacan, Leyte.4 Recovered from the grave site were 67 severely deteriorated skeletal
remains believed to be victims of Operation VD.5

The PNP Scene of the Crime Operation (SOCO) Team based in Regional Office 8 was immediately
dispatched to the mass grave site to conduct crime investigation, and to collect, preserve and
analyze the skeletal remains.6 Also, from 11-17 September 2006, an investigation team composed of
intelligence officers, and medico-legal and DNA experts, conducted forensic crime analysis and
collected from alleged relatives of the victims DNA samples for matching.7

The Initial Specialist Report8 dated 18 September 2006 issued by the PNP Crime Laboratory in
Camp Crame, Quezon City, was inconclusive with regard to the identities of the skeletal remains and
even the length of time that they had been buried. The report recommended the conduct of further
tests to confirm the identities of the remains and the time window of death.9

However, in a Special Report10 dated 2 October 2006, the Case Secretariat of the Regional and
National Inter-Agency Legal Action Group (IALAG) came up with the names of ten (10) possible
victims after comparison and examination based on testimonies of relatives and witnesses.11

The 12 complaint-affidavits were from relatives of the alleged victims of Operation VD. All of them
swore that their relatives had been abducted or last seen with members of the CPP/NPA/NDFP and
were never seen again.

They also expressed belief that their relatives’ remains were among those discovered at the mass
grave site.

Also attached to the letters were the affidavits of Zacarias Piedad,12 Leonardo C. Tanaid, Floro M.
Tanaid, Numeriano Beringuel, Glecerio Roluna and Veronica P. Tabara. They narrated that they
were former members of the CPP/NPA/NDFP.13 According to them, Operation VD was ordered in
1985 by the CPP/NPA/NDFP Central Committee.14 Allegedly, petitioners Saturnino C. Ocampo
(Ocampo),15 Randall B. Echanis (Echanis),16 Rafael G. Baylosis (Baylosis),17 and Vicente P. Ladlad
(Ladlad)18 were then members of the Central Committee.

According to these former members, four sub-groups were formed to implement Operation VD,
namely, (1) the Intel Group responsible for gathering information on suspected military spies and
civilians who would not support the movement; (2) the Arresting Group charged with their arrests; (3)
the Investigation Group which would subject those arrested to questioning; and (4) the Execution
Group or the "cleaners" of those confirmed to be military spies and civilians who would not support
the movement.19

From 1985 to 1992, at least 100 people had been abducted, hog-tied, tortured and executed by
members of the CPP/NPA/NDF20 pursuant to Operation VD.21

On the basis of the 12 letters and their attachments, Prosecutor Vivero issued a subpoena requiring,
among others, petitioners to submit their counter-affidavits and those of their witnesses.22 Petitioner
Ocampo submitted his counter-affidavit.23 Petitioners Echanis24 and Baylosis25 did not file counter-
affidavits because they were allegedly not served the copy of the complaint and the attached
documents or evidence. Counsel of petitioner Ladlad made a formal entry of appearance on 8
December 2006 during the preliminary investigation.26 However, petitioner Ladlad did not file a
counter-affidavit because he was allegedly not served a subpoena.27

In a Resolution28 dated 16 February 2007, Prosecutor Vivero recommended the filing of an

Information for 15 counts of multiple murder against 54 named members of the CPP/NPA/NDFP,
including petitioners herein, for the death of the following: 1) Juanita Aviola, 2) Concepcion Aragon,
3) Gregorio Eras, 4) Teodoro Recones, Jr., 5) Restituto Ejoc, 6) Rolando Vasquez, 7) Junior
Milyapis, 8) Crispin Dalmacio, 9) Zacarias Casil, 10) Pablo Daniel, 11) Romeo Tayabas, 12)
Domingo Napoles, 13) Ciriaco Daniel, 14) Crispin Prado, and 15) Ereberto Prado.29

Prosecutor Vivero also recommended that Zacarias Piedad, Leonardo Tanaid, Numeriano Beringuel
and Glecerio Roluna be dropped as respondents and utilized as state witnesses, as their testimonies
were vital to the success of the prosecution.30 The Resolution was silent with regard to Veronica
Tabara.

The Information was filed before the Regional Trial Court (RTC) Hilongos, Leyte, Branch 18 (RTC
Hilongos, Leyte) presided by Judge Ephrem S. Abando (Judge Abando) on 28 February 2007, and
docketed as Criminal Case No. H-1581.31 Petitioner Ocampo filed an Ex Parte Motion to Set Case for
Clarificatory Hearing dated 5 March 2007 prior to receiving a copy of the Resolution recommending
the filing of the Information.32

On 6 March 2007, Judge Abando issued an Order finding probable cause "in the commission by all
mentioned accused of the crime charged."33 He ordered the issuance of warrants of arrest against
them with no recommended bail for their temporary liberty.34

On 16 March 2007, petitioner Ocampo filed before us this special civil action for certiorari and
prohibition under Rule 65 of the Rules of Court and docketed as G.R. No. 176830 seeking the
annulment of the 6 March 2007 Order of Judge Abando and the 16 February 2007 Resolution of
Prosecutor Vivero.35 The petition prayed for the unconditional release of petitioner Ocampo from PNP
custody, as well as the issuance of a temporary restraining order/ writ of preliminary injunction to
restrain the conduct of further proceedings during the pendency of the petition.36

Petitioner Ocampo argued that a case for rebellion against him and 44 others (including petitioners
Echanis and Baylosis37 and Ladlad38) docketed as Criminal Case No. 06-944 was then pending
before the RTC Makati, Branch 150 (RTC Makati).39 Putting forward the political offense doctrine,
petitioner Ocampo argues that common crimes, such as murder in this case, are already absorbed
by the crime of rebellion when committed as a necessary means, in connection with and in
furtherance of rebellion.40

We required41 the Office of the Solicitor General (OSG) to comment on the petition and the prayer for
the issuance of a temporary restraining order/ writ of preliminary injunction, and set42 the case for oral
arguments on 30 March 2007. The OSG filed its Comment on 27 March 2007.43

The following were the legal issues discussed by the parties during the oral arguments:

1. Whether the present petition for certiorari and prohibition is the proper remedy of petitioner
Ocampo;

2. Assuming it is the proper remedy, whether he was denied due process during preliminary
investigation and in the issuance of the warrant of arrest;
 3. Whether the murder charges against him are already included in the rebellion charge
against him in the RTC.44

Afterwards, the parties were ordered to submit their memoranda within 10 days.45 On 3 April 2007,
the Court ordered the provisional release of petitioner Ocampo under a ₱100,000 cash bond.46
Acting on the observation of the Court during the oral arguments that the single Information filed
before the RTC Hilongos, Leyte was defective for charging 15 counts of murder, the prosecution
filed a Motion to Admit Amended Information and New Informations on 11 April 2007.47 In an Order
dated 27 July 2007, Judge Abando held in abeyance the resolution thereof and effectively
suspended the proceedings during the pendency of G.R. No. 176830 before this Court.48

While the proceedings were suspended, petitioner Echanis was arrested on 28 January 2008 by
virtue of the warrant of arrest issued by Judge Abando on 6 March 2007.49 On 1 February 2008,
petitioners Echanis and Baylosis filed a Motion for Judicial Reinvestigation/ Determination of
Probable Cause with Prayer to Dismiss the Case Outright and Alternative Prayer to Recall/ Suspend
Service of Warrant.50

On 30 April 2008, Judge Abando issued an Order denying the motion.51 Petitioners Echanis and
Baylosis filed a Motion for Reconsideration52 dated 30 May 2008, but before being able to rule
thereon, Judge Abando issued an Order dated 12 June 2008 transmitting the records of Criminal
Case No. H-1581 to the Office of the Clerk of Court, RTC Manila.53 The Order was issued in
compliance with the Resolution dated 23 April 2008 of this Court granting the request of then
Secretary of Justice Raul Gonzales to transfer the venue of the case.

The case was re-raffled to RTC Manila, Branch 32 (RTC Manila) presided by Judge Thelma Bunyi-
Medina (Judge Medina) and re-docketed as Criminal Case No. 08-262163.54 Petitioner Echanis was
transferred to the PNP Custodial Center in Camp Crame, Quezon City. On 12 August 2008,
petitioners Echanis and Baylosis filed their Supplemental Arguments to Motion for Reconsideration.55

In an Order56 dated 27 October 2008, Judge Medina suspended the proceedings of the case pending
the resolution of G.R. No. 176830 by this Court.

On 18 December 2008, petitioner Ladlad filed with the RTC Manila a Motion to Quash and/or
Dismiss.57

On 23 December 2008, petitioner Echanis filed before us a special civil action for certiorari and
prohibition under Rule 65 of the Rules of Court seeking the annulment of the 30 April 2008 Order of
Judge Abando and the 27 October 2008 Order of Judge Medina.58 The petition, docketed as G.R.
No. 185587, prayed for the unconditional and immediate release of petitioner Echanis, as well as the
issuance of a temporary restraining order/writ of preliminary injunction to restrain his further
incarceration.59

On 5 January 2009, petitioner Baylosis filed before us a special civil action for certiorari and
prohibition under Rule 65 of the Rules of Court also seeking the annulment of the 30 April 2008
Order of Judge Abando and the 27 October 2008 Order of Judge Medina.60 The petition, docketed as
G.R. No. 185636, prayed for the issuance of a temporary restraining order/ writ of preliminary
injunction to restrain the implementation of the warrant of arrest against petitioner Baylosis.61

The Court consolidated G.R. Nos. 185587 and 185636 on 12 January 2009.62

On 3 March 2009, the Court ordered the further consolidation of these two cases with G.R. No.
176830.63 We required64 the OSG to comment on the prayer for petitioner Echanis’s immediate
release, to which the OSG did not interpose any objection on these conditions: that the temporary
release shall only be for the purpose of his attendance and participation in the formal peace
negotiations between the Government of the Republic of the Philippines (GRP) and the
CPP/NPA/NDFP, set to begin in August 2009; and that his temporary release shall not exceed six
(6) months.65 The latter condition was later modified, such that his temporary liberty shall continue for
the duration of his actual participation in the peace negotiations.66

On 11 August 2009, the Court ordered the provisional release of petitioner Echanis under a
₱100,000 cash bond, for the purpose of his participation in the formal peace negotiations.67

Meanwhile, the Department of Justice (DOJ) filed its Opposition68 to petitioner Ladlad’s motion to
quash before the RTC Manila. The trial court conducted a hearing on the motion on 13 February
2009.69

On 6 May 2009, Judge Medina issued an Order70 denying the motion to quash. The motion for
reconsideration filed by petitioner Ladlad was also denied on 27 August 2009.71

On 9 November 2009, petitioner Ladlad filed before us a special civil action for certiorari under Rule
65 of the Rules of Court seeking the annulment of the 6 May 2009 and 27 August 2009 Orders of
Judge Medina.72 The petition was docketed as G.R. No. 190005.

On 11 January 2010, we ordered the consolidation of G.R. No. 190005 with G.R. Nos. 176830,
185587 and 185636.73 We also required the OSG to file its comment thereon. The OSG submitted its
Comment74 on 7 May 2010.

On 27 July 2010, we likewise required the OSG to file its Comment in G.R. Nos. 185636 and
185587.75 These Comments were filed by the OSG on 13 December 201076 and on 21 January
2011,77 respectively. Petitioners Echanis and Baylosis filed their Consolidated Reply78 on 7 June
2011.

On 2 May 2011, petitioner Ladlad filed an Urgent Motion to Fix Bail.79 On 21 July 2011, petitioner
Baylosis filed A Motion to Allow Petitioner to Post Bail.80 The OSG interposed no objection to the
grant of a ₱100,000 cash bail to them considering that they were consultants of the NDFP
negotiating team, which was then holding negotiations with the GRP peace panel for the signing of a
peace accord.81

On 17 January 2012, we granted the motions of petitioners Ladlad and Baylosis and fixed their bail
in the amount of ₱100,000, subject to the condition that their temporary release shall be limited to
the period of their actual participation in the peace negotiations.82

Petitioner Ladlad filed his Reply83 to the OSG Comment on 18 January 2013.

OUR RULING

Petitioners were accorded due

process during preliminary
investigation and in the issuance of
the warrants of arrest.

A. Preliminary Investigation
A preliminary investigation is "not a casual affair."84 It is conducted to protect the innocent from the
embarrassment, expense and anxiety of a public trial.85 While the right to have a preliminary
investigation before trial is statutory rather than constitutional, it is a substantive right and a
component of due process in the administration of criminal justice.86

In the context of a preliminary investigation, the right to due process of law entails the opportunity to
be heard.87 It serves to accord an opportunity for the presentation of the respondent’s side with
regard to the accusation. Afterwards, the investigating officer shall decide whether the allegations
and defenses lead to a reasonable belief that a crime has been committed, and that it was the
respondent who committed it. Otherwise, the investigating officer is bound to dismiss the complaint.

"The essence of due process is reasonable opportunity to be heard and submit evidence in support
of one's defense."88 What is proscribed is lack of opportunity to be heard.89 Thus, one who has been
afforded a chance to present one’s own side of the story cannot claim denial of due process.90

Petitioners Echanis and Baylosis allege that they did not receive a copy of the complaint and the
attached documents or evidence.91 Petitioner Ladlad claims that he was not served a subpoena due
to the false address indicated in the 12 undated letters of P C/Insp. Almaden and Army Captain Tiu
to Prosecutor Vivero.92 Furthermore, even though his counsels filed their formal entry of appearance
before the Office of the Prosecutor, petitioner Ladlad was still not sent a subpoena through his
counsels’ addresses.93 Thus, they were deprived of the right to file counter-affidavits.

Petitioner Ocampo claims that Prosecutor Vivero, in collusion with P C/Insp. Almaden and Army
Captain Tiu, surreptitiously inserted the Supplemental Affidavit of Zacarias Piedad in the records of
the case without furnishing petitioner Ocampo a copy.94 The original affidavit of Zacarias Piedad
dated 14 September 2006 stated that a meeting presided by petitioner Ocampo was held in 1984,
when the launching of Operation VD was agreed upon.95 Petitioner Ocampo refuted this claim in his
Counter-affidavit dated 22 December 2006 stating that he was in military custody from October 1976
until his escape in May 1985.96 Thereafter, the Supplemental Affidavit of Zacarias Piedad dated 12
January 2007 admitted that he made a mistake in his original affidavit, and that the meeting actually
took place in June 1985.97 Petitioner Ocampo argues that he was denied the opportunity to reply to
the Supplemental Affidavit by not being furnished a copy thereof.

Petitioner Ocampo also claims that he was denied the right to file a motion for reconsideration or to
appeal the Resolution of Prosecutor Vivero, because the latter deliberately delayed the service of
the Resolution by 19 days, effectively denying petitioner Ocampo his right to due process.98

As to the claim of petitioners Echanis and Baylosis, we quote the pertinent portion of Prosecutor
Vivero’s Resolution, which states:

In connection with the foregoing and pursuant to the Revised Rules of Criminal Procedure[,] the
respondents were issued and served with Subpoena at their last known address for them to submit
their counter-affidavits and that of their witnesses.

Majority of the respondents did not submit their counter-affidavits because they could no longer be
found in their last known address, per return of the subpoenas. On the other hand, Saturnino
Ocampo @ Satur, Fides Lim, Maureen Palejaro and Ruben Manatad submitted their Counter-
Affidavits. However, Vicente Ladlad and Jasmin Jerusalem failed to submit the required Counter
Affidavits in spite entry of appearance by their respective counsels.99

Section 3(d), Rule 112 of the Rules of Court, allows Prosecutor Vivero to resolve the complaint
based on the evidence before him if a respondent could not be subpoenaed. As long as efforts to
reach a respondent were made, and he was given an opportunity to present countervailing evidence,
the preliminary investigation remains valid.100 The rule was put in place in order to foil underhanded
attempts of a respondent to delay the prosecution of offenses.101

In this case, the Resolution stated that efforts were undertaken to serve subpoenas on the named
respondents at their last known addresses. This is sufficient for due process. It was only because a
majority of them could no longer be found at their last known addresses that they were not served
copies of the complaint and the attached documents or evidence.

Petitioner Ladlad claims that his subpoena was sent to the nonexistent address "53 Sct. Rallos St.,
QC,"102 which had never been his address at any time.103 In connection with this claim, we take note of
the fact that the subpoena to Fides Lim, petitioner Ladlad’s wife,104 was sent to the same address,
and that she was among those mentioned in the Resolution as having timely submitted their counter-
affidavits.

Despite supposedly never receiving a subpoena, petitioner Ladlad’s counsel filed a formal entry of
appearance on 8 December 2006.105 Prosecutor Vivero had a reason to believe that petitioner Ladlad
had received the subpoena and accordingly instructed his counsel to prepare his defense.

Petitioner Ladlad, through his counsel, had every opportunity to secure copies of the complaint after
his counsel’s formal entry of appearance and, thereafter, to participate fully in the preliminary
investigation. Instead, he refused to participate.

We have previously cautioned that "litigants represented by counsel should not expect that all they
need to do is sit back, relax and await the outcome of their case."106 Having opted to remain passive
during the preliminary investigation, petitioner Ladlad and his counsel cannot now claim a denial of
due process, since their failure to file a counter-affidavit was of their own doing.

Neither do we find any merit in petitioner Ocampo’s allegation of collusion to surreptitiously insert the
Supplemental Affidavit of Zacarias Piedad in the records. There was nothing surreptitious about the
Supplemental Affidavit since it clearly alludes to an earlier affidavit and admits the mistake
committed regarding the date of the alleged meeting. The date of the execution of the Supplemental
Affidavit was also clearly stated. Thus, it was clear that it was executed after petitioner Ocampo had
submitted his counter-affidavit. Should the case go to trial, that will provide petitioner Ocampo with
the opportunity to question the execution of Zacarias Piedad’s Supplemental Affidavit.

Neither can we uphold petitioner Ocampo’s contention that he was denied the right to be heard. For
him to claim that he was denied due process by not being furnished a copy of the Supplemental
Affidavit of Zacarias Piedad would imply that the entire case of the prosecution rested on the
Supplemental Affidavit. The OSG has asserted that the indictment of petitioner Ocampo was based
on the collective affidavits of several other witnesses107 attesting to the allegation that he was a
member of the CPP/NPA/NDFP Central Committee, which had ordered the launch of Operation VD.

As to his claim that he was denied the right to file a motion for reconsideration or to appeal the
Resolution of Prosecutor Vivero due to the 19-day delay in the service of the Resolution, it must be
pointed out that the period for filing a motion for reconsideration or an appeal to the Secretary of
Justice is reckoned from the date of receipt of the resolution of the prosecutor, not from the date of
the resolution. This is clear from Section 3 of the 2000 National Prosecution Service Rule on Appeal:

Sec. 3. Period to appeal. – The appeal shall be taken within fifteen (15) days from receipt of the
resolution, or of the denial of the motion for reconsideration/ reinvestigation if one has been filed
within fifteen (15) days from receipt of the assailed resolution. Only one motion for reconsideration
shall be allowed. (Emphasis supplied)

Thus, when petitioner Ocampo received the Resolution of Prosecutor Vivero on 12 March
2007,108 the former had until 27 March 2007 within which to file either a motion for reconsideration
before the latter or an appeal before the Secretary of Justice. Instead, petitioner Ocampo chose to
file the instant petition for certiorari directly before this Court on 16 March 2007.

B. Issuance of the Warrants of Arrest

Article III, Section 2 of the Constitution provides that "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."

Petitioner Ocampo alleges that Judge Abando did not comply with the requirements of the
Constitution in finding the existence of probable cause for the issuance of warrants of arrest against
petitioners.109

Probable cause for the issuance of a warrant of arrest has been defined as "such facts and
circumstances which would lead a reasonably discreet and prudent man to believe that an offense
has been committed by the person sought to be arrested."110 Although the Constitution provides that
probable cause shall be determined by the judge after an examination under oath or an affirmation
of the complainant and the witnesses, we have ruled that a hearing is not necessary for the
determination thereof.111 In fact, the judge’s personal examination of the complainant and the
witnesses is not mandatory and indispensable for determining the aptness of issuing a warrant of
arrest.112

It is enough that the judge personally evaluates the prosecutor’s report and supporting documents
showing the existence of probable cause for the indictment and, on the basis thereof, issue a
warrant of arrest; or if, on the basis of his evaluation, he finds no probable cause, to disregard the
prosecutor's resolution and require the submission of additional affidavits of witnesses to aid him in
determining its existence.113

Petitioners Echanis and Baylosis claim that, had Judge Abando painstakingly examined the records
submitted by Prosecutor Vivero, the judge would have inevitably dismissed the charge against
them.114 Additionally, petitioner Ocampo alleges that Judge Abando did not point out facts and
evidence in the record that were used as bases for his finding of probable cause to issue a warrant
of arrest.115

The determination of probable cause for the issuance of warrants of arrest against petitioners is
addressed to the sound discretion of Judge Abando as the trial judge.116 Further elucidating on the
wide latitude given to trial judges in the issuance of warrants of arrest, this Court stated in
Sarigumba v. Sandiganbayan117 as follows:

x x x. The trial court's exercise of its judicial discretion should not, as a general rule, be interfered
with in the absence of grave abuse of discretion. Indeed, certiorari will not lie to cure errors in the
trial court's appreciation of the evidence of the parties, the conclusion of facts it reached based on
the said findings, as well as the conclusions of law. x x x.

Whether or not there is probable cause for the issuance of warrants for the arrest of the accused is a
question of fact based on the allegations in the Informations, the Resolution of the Investigating
Prosecutor, including other documents and/or evidence appended to the Information.
Here, the allegations of petitioners point to factual matters indicated in the affidavits of the
complainants and witnesses as bases for the contention that there was no probable cause for
petitioners’ indictment for multiple murder or for the issuance of warrants for their arrest. As stated
above, the trial judge’s appreciation of the evidence and conclusion of facts based thereon are not
interfered with in the absence of grave abuse of discretion. Again, "he sufficiently complies with the
requirement of personal determination if he reviews the [I]nformation and the documents attached
thereto, and on the basis thereof forms a belief that the accused is probably guilty of the crime with
which he is being charged."118

Judge Abando’s review of the Information and the supporting documents is shown by the following
portion of the judge’s 6 March 2007 Order:

On the evaluation of the Resolution and its Information as submitted and filed by the Provincial
Prosecution of Leyte Province supported by the following documents: Affidavits of Complainants,
Sworn Statements of Witnesses and other pertinent documents issued by the Regional Crime
Laboratory Office, PNP, Region VIII and Camp Crame, Quezon City, pictures of the grave site and
skeletal remains, this court has the findings [sic] of probable cause in the commission by all
mentioned accused of the crime charged.119

At bottom, issues involving the finding of probable cause for an indictment and issuance of a warrant
of arrest, as petitioners are doubtless aware, are primarily questions of fact that are normally not
within the purview of a petition for certiorari,120 such as the petitions filed in the instant consolidated
cases.

The political offense doctrine is not a

ground to dismiss the charge against
petitioners prior to a determination
by the trial court that the murders
were committed in furtherance of
rebellion.

Under the political offense doctrine, "common crimes, perpetrated in furtherance of a political
offense, are divested of their character as "common" offenses and assume the political complexion
of the main crime of which they are mere ingredients, and, consequently, cannot be punished
separately from the principal offense, or complexed with the same, to justify the imposition of a
graver penalty."121

Any ordinary act assumes a different nature by being absorbed in the crime of rebellion.122 Thus,
when a killing is committed in furtherance of rebellion, the killing is not homicide or murder. Rather,
the killing assumes the political complexion of rebellion as its mere ingredient and must be
prosecuted and punished as rebellion alone.

However, this is not to say that public prosecutors are obliged to consistently charge respondents
with simple rebellion instead of common crimes. No one disputes the well-entrenched principle in
criminal procedure that the institution of criminal charges, including whom and what to charge, is
addressed to the sound discretion of the public prosecutor.123

But when the political offense doctrine is asserted as a defense in the trial court, it becomes crucial
for the court to determine whether the act of killing was done in furtherance of a political end, and for
the political motive of the act to be conclusively demonstrated.124
Petitioners aver that the records show that the alleged murders were committed in furtherance of the
CPP/NPA/NDFP rebellion, and that the political motivation behind the alleged murders can be
clearly seen from the charge against the alleged top leaders of the CPP/NPA/NDFP as co-
conspirators.

We had already ruled that the burden of demonstrating political motivation must be discharged by
the defense, since motive is a state of mind which only the accused knows.125 The proof showing
political motivation is adduced during trial where the accused is assured an opportunity to present
evidence supporting his defense. It is not for this Court to determine this factual matter in the instant
petitions.

As held in the case of Office of the Provincial Prosecutor of Zamboanga Del Norte v. CA,126 if during
trial, petitioners are able to show that the alleged murders were indeed committed in furtherance of
rebellion, Section 14, Rule 110 of the Rules of Court provides the remedy, to wit:

SECTION 14. Amendment or substitution. — A complaint or information may be amended, in form or

in substance, without leave of court, at any time before the accused enters his plea. After the plea
and during the trial, a formal amendment may only be made with leave of court and when it can be
done without causing prejudice to the rights of the accused.

However, any amendment before plea, which downgrades the nature of the offense charged in or
excludes any accused from the complaint or information, can be made only upon motion by the
prosecutor, with notice to the offended party and with leave of court. The court shall state its reasons
in resolving the motion and copies of its order shall be furnished all parties, especially the offended
party. (n)

If it appears at any time before judgment that a mistake has been made in charging the proper
offense, the court shall dismiss the original complaint or information upon the filing of a new one
charging the proper offense in accordance with Section 19, Rule 119, provided the accused shall not
be placed in double jeopardy. The court may require the witnesses to give bail for their appearance
at the trial. (Emphasis supplied)

Thus, if it is shown that the proper charge against petitioners should have been simple rebellion, the
trial court shall dismiss the murder charges upon the filing of the Information for simple rebellion, as
long as petitioners would not be placed in double jeopardy.

Section 7, Rule 117 of the Rules of Court, states:

SEC. 7. Former conviction or acquittal; double jeopardy. — When an accused has been convicted or
acquitted, or the case against him dismissed or otherwise terminated without his express consent by
a court of competent jurisdiction, upon a valid complaint or information or other formal charge
sufficient in form and substance to sustain a conviction and after the accused had pleaded to the
charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to
another prosecution for the offense charged, or for any attempt to commit the same or frustration
thereof, or for any offense which necessarily includes or is necessarily included in the offense
charged in the former complaint or information.

Based on the above provision, double jeopardy only applies when: (1) a first jeopardy attached; (2) it
has been validly terminated; and (3) a second jeopardy is for the same offense as in the first.127
A first jeopardy attaches only after the accused has been acquitted or convicted, or the case has
been dismissed or otherwise terminated without his express consent, by a competent court in a valid
indictment for which the accused has entered a valid plea during arraignment.128

To recall, on 12 May 2006, an Information for the crime of rebellion, as defined and penalized under
Article 134 in relation to Article 135 of the Revised Penal Code, docketed as Criminal Case No. 06-
944 was filed before the RTC Makati against petitioners and several others.129

However, petitioners were never arraigned in Criminal Case No. 06-944. Even before the indictment
1awp++i1

for rebellion was filed before the RTC Makati, petitioners Ocampo, Echanis and Ladlad had already
filed a petition before this Court to seek the nullification of the Orders of the DOJ denying their
motion for the inhibition of the members of the prosecution panel due to lack of impartiality and
independence.130 When the indictment was filed, petitioners Ocampo, Echanis and Ladlad filed
supplemental petitions to enjoin the prosecution of Criminal Case No. 06-944.131 We eventually
ordered the dismissal of the rebellion case. It is clear then that a first jeopardy never had a chance to
attach.

Petitioner Ocampo shall remain on provisional liberty under the ₱100,000 cash bond posted before
the Office of the Clerk of Court. He shall remain on provisional liberty until the termination of the
proceedings before the RTC Manila. 1âwphi1

The OSG has given its conformity to the provisional liberty of petitioners Echanis, Baylosis and
Ladlad in view of the ongoing peace negotiations. Their provisional release from detention under the
cash bond of ₱100,000 each shall continue under the condition that their temporary release shall be
limited to the period of their actual participation as CPP-NDF consultants in the peace negotiations
with the government or until the termination of the proceedings before the RTC Manila, whichever is
sooner. It shall be the duty of the government to inform this Court the moment that peace
negotiations are concluded.

WHEREFORE, the instant consolidated petitions are DISMISSED. The RTC of Manila, Branch 32, is
hereby ORDERED to proceed with dispatch with the hearing of Criminal Case No. 08-262163.
Petitioner Saturnino C. Ocampo shall remain on temporary liberty under the same bail granted by
this Court until the termination of the proceedings before the RTC Manila. Petitioners Randall B.
Echanis, Rafael G. Baylosis and Vicente P. Ladlad shall remain on temporary liberty under the same
bail granted by this Court until their actual participation as CPP-NDF consultants in the peace
negotiations with the government are concluded or terminated, or until the termination of the
proceedings before the RTC Manila, whichever is sooner.

SO ORDERED.

G.R. No. L-19550 June 19, 1967

HARRY S. STONEHILL, ROBERT P. BROOKS, JOHN J. BROOKS and KARL BECK, petitioners,
vs.
HON. JOSE W. DIOKNO, in his capacity as SECRETARY OF JUSTICE; JOSE LUKBAN, in his
capacity as Acting Director, National Bureau of Investigation; SPECIAL PROSECUTORS
PEDRO D. CENZON, EFREN I. PLANA and MANUEL VILLAREAL, JR. and ASST. FISCAL
MANASES G. REYES; JUDGE AMADO ROAN, Municipal Court of Manila; JUDGE ROMAN
CANSINO, Municipal Court of Manila; JUDGE HERMOGENES CALUAG, Court of First
Instance of Rizal-Quezon City Branch, and JUDGE DAMIAN JIMENEZ, Municipal Court of
Quezon City, respondents.

Paredes, Poblador, Cruz and Nazareno and Meer, Meer and Meer and Juan T. David for petitioners.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Pacifico P. de Castro,
Assistant Solicitor General Frine C. Zaballero, Solicitor Camilo D. Quiason and Solicitor C. Padua for
respondents.

CONCEPCION, C.J.:

Upon application of the officers of the government named on the margin1 — hereinafter referred to
as Respondents-Prosecutors — several judges2 — hereinafter referred to as Respondents-Judges
— issued, on different dates,3 a total of 42 search warrants against petitioners herein4 and/or the
corporations of which they were officers,5 directed to the any peace officer, to search the persons
above-named and/or the premises of their offices, warehouses and/or residences, and to seize and
take possession of the following personal property to wit:

Books of accounts, financial records, vouchers, correspondence, receipts, ledgers, journals,

portfolios, credit journals, typewriters, and other documents and/or papers showing all
business transactions including disbursements receipts, balance sheets and profit and loss
statements and Bobbins (cigarette wrappers).

as "the subject of the offense; stolen or embezzled and proceeds or fruits of the offense," or "used or
intended to be used as the means of committing the offense," which is described in the applications
adverted to above as "violation of Central Bank Laws, Tariff and Customs Laws, Internal Revenue
(Code) and the Revised Penal Code."

Alleging that the aforementioned search warrants are null and void, as contravening the Constitution
and the Rules of Court — because, inter alia: (1) they do not describe with particularity the
documents, books and things to be seized; (2) cash money, not mentioned in the warrants, were
actually seized; (3) the warrants were issued to fish evidence against the aforementioned petitioners
in deportation cases filed against them; (4) the searches and seizures were made in an illegal
manner; and (5) the documents, papers and cash money seized were not delivered to the courts that
issued the warrants, to be disposed of in accordance with law — on March 20, 1962, said petitioners
filed with the Supreme Court this original action for certiorari, prohibition, mandamus and injunction,
and prayed that, pending final disposition of the present case, a writ of preliminary injunction be
issued restraining Respondents-Prosecutors, their agents and /or representatives from using the
effects seized as aforementioned or any copies thereof, in the deportation cases already adverted
to, and that, in due course, thereafter, decision be rendered quashing the contested search warrants
and declaring the same null and void, and commanding the respondents, their agents or
representatives to return to petitioners herein, in accordance with Section 3, Rule 67, of the Rules of
Court, the documents, papers, things and cash moneys seized or confiscated under the search
warrants in question.

In their answer, respondents-prosecutors alleged, 6 (1) that the contested search warrants are valid
and have been issued in accordance with law; (2) that the defects of said warrants, if any, were
cured by petitioners' consent; and (3) that, in any event, the effects seized are admissible in
evidence against herein petitioners, regardless of the alleged illegality of the aforementioned
searches and seizures.
On March 22, 1962, this Court issued the writ of preliminary injunction prayed for in the petition.
However, by resolution dated June 29, 1962, the writ was partially lifted or dissolved, insofar as the
papers, documents and things seized from the offices of the corporations above mentioned are
concerned; but, the injunction was maintained as regards the papers, documents and things found
and seized in the residences of petitioners herein.7

Thus, the documents, papers, and things seized under the alleged authority of the warrants in
question may be split into two (2) major groups, namely: (a) those found and seized in the offices of
the aforementioned corporations, and (b) those found and seized in the residences of petitioners
herein.

As regards the first group, we hold that petitioners herein have no cause of action to assail the
legality of the contested warrants and of the seizures made in pursuance thereof, for the simple
reason that said corporations have their respective personalities, separate and distinct from the
personality of herein petitioners, regardless of the amount of shares of stock or of the interest of
each of them in said corporations, and whatever the offices they hold therein may be.8 Indeed, it is
well settled that the legality of a seizure can be contested only by the party whose rights have been
impaired thereby,9 and that the objection to an unlawful search and seizure is purely personal and
cannot be availed of by third parties. 10 Consequently, petitioners herein may not validly object to the
use in evidence against them of the documents, papers and things seized from the offices and
premises of the corporations adverted to above, since the right to object to the admission of said
papers in evidence belongs exclusively to the corporations, to whom the seized effects belong, and
may not be invoked by the corporate officers in proceedings against them in their individual
capacity. 11 Indeed, it has been held:

. . . that the Government's action in gaining possession of papers belonging to

the corporation did not relate to nor did it affect the personal defendants. If these papers
were unlawfully seized and thereby the constitutional rights of or any one were invaded, they
were the rights of the corporation and not the rights of the other defendants. Next, it is clear
that a question of the lawfulness of a seizure can be raised only by one whose rights have
been invaded. Certainly, such a seizure, if unlawful, could not affect the constitutional rights
of defendants whose property had not been seized or the privacy of whose homes had not
been disturbed; nor could they claim for themselves the benefits of the Fourth Amendment,
when its violation, if any, was with reference to the rights of another. Remus vs. United
States (C.C.A.)291 F. 501, 511. It follows, therefore, that the question of the admissibility of
the evidence based on an alleged unlawful search and seizure does not extend to the
personal defendants but embraces only the corporation whose property was taken. . . . (A
Guckenheimer & Bros. Co. vs. United States, [1925] 3 F. 2d. 786, 789, Emphasis supplied.)

With respect to the documents, papers and things seized in the residences of petitioners herein, the
aforementioned resolution of June 29, 1962, lifted the writ of preliminary injunction previously issued
by this Court, 12 thereby, in effect, restraining herein Respondents-Prosecutors from using them in
evidence against petitioners herein.

In connection with said documents, papers and things, two (2) important questions need be settled,
namely: (1) whether the search warrants in question, and the searches and seizures made under the
authority thereof, are valid or not, and (2) if the answer to the preceding question is in the negative,
whether said documents, papers and things may be used in evidence against petitioners herein. 1äw phï1.ñët

Petitioners maintain that the aforementioned search warrants are in the nature of general warrants
and that accordingly, the seizures effected upon the authority there of are null and void. In this
connection, the Constitution 13 provides:
 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.

Two points must be stressed in connection with this constitutional mandate, namely: (1) that no
warrant shall issue but upon probable cause, to be determined by the judge in the manner set forth
in said provision; and (2) that the warrant shall particularly describe the things to be seized.

None of these requirements has been complied with in the contested warrants. Indeed, the same
were issued upon applications stating that the natural and juridical person therein named had
committed a "violation of Central Ban Laws, Tariff and Customs Laws, Internal Revenue (Code) and
Revised Penal Code." In other words, no specific offense had been alleged in said applications. The
averments thereof with respect to the offense committed were abstract. As a consequence, it
was impossible for the judges who issued the warrants to have found the existence of probable
cause, for the same presupposes the introduction of competent proof that the party against whom it
is sought has performed particular acts, or committed specific omissions, violating a given provision
of our criminal laws. As a matter of fact, the applications involved in this case do not allege any
specific acts performed by herein petitioners. It would be the legal heresy, of the highest order, to
convict anybody of a "violation of Central Bank Laws, Tariff and Customs Laws, Internal Revenue
(Code) and Revised Penal Code," — as alleged in the aforementioned applications — without
reference to any determinate provision of said laws or

To uphold the validity of the warrants in question would be to wipe out completely one of the most
fundamental rights guaranteed in our Constitution, for it would place the sanctity of the domicile and
the privacy of communication and correspondence at the mercy of the whims caprice or passion of
peace officers. This is precisely the evil sought to be remedied by the constitutional provision above
quoted — to outlaw the so-called general warrants. It is not difficult to imagine what would happen,
in times of keen political strife, when the party in power feels that the minority is likely to wrest it,
even though by legal means.

Such is the seriousness of the irregularities committed in connection with the disputed search
warrants, that this Court deemed it fit to amend Section 3 of Rule 122 of the former Rules of
Court 14 by providing in its counterpart, under the Revised Rules of Court 15 that "a search warrant
shall not issue but upon probable cause in connection with one specific offense." Not satisfied with
this qualification, the Court added thereto a paragraph, directing that "no search warrant shall issue
for more than one specific offense."

The grave violation of the Constitution made in the application for the contested search warrants was
compounded by the description therein made of the effects to be searched for and seized, to wit:

Books of accounts, financial records, vouchers, journals, correspondence, receipts, ledgers,

portfolios, credit journals, typewriters, and other documents and/or papers showing all
business transactions including disbursement receipts, balance sheets and related profit and
loss statements.

Thus, the warrants authorized the search for and seizure of records pertaining to all business
transactions of petitioners herein, regardless of whether the transactions were legal or illegal. The
warrants sanctioned the seizure of all records of the petitioners and the aforementioned
corporations, whatever their nature, thus openly contravening the explicit command of our Bill of
Rights — that the things to be seized be particularly described — as well as tending to defeat its
major objective: the elimination of general warrants.

Relying upon Moncado vs. People's Court (80 Phil. 1), Respondents-Prosecutors maintain that, even
if the searches and seizures under consideration were unconstitutional, the documents, papers and
things thus seized are admissible in evidence against petitioners herein. Upon mature deliberation,
however, we are unanimously of the opinion that the position taken in the Moncado case must be
abandoned. Said position was in line with the American common law rule, that the criminal should
not be allowed to go free merely "because the constable has blundered," 16 upon the theory that the
constitutional prohibition against unreasonable searches and seizures is protected by means other
than the exclusion of evidence unlawfully obtained, 17 such as the common-law action for damages
against the searching officer, against the party who procured the issuance of the search warrant and
against those assisting in the execution of an illegal search, their criminal punishment, resistance,
without liability to an unlawful seizure, and such other legal remedies as may be provided by other
laws.

However, most common law jurisdictions have already given up this approach and eventually
adopted the exclusionary rule, realizing that this is the only practical means of enforcing the
constitutional injunction against unreasonable searches and seizures. In the language of Judge
Learned Hand:

As we understand it, the reason for the exclusion of evidence competent as such, which has
been unlawfully acquired, is that exclusion is the only practical way of enforcing the
constitutional privilege. In earlier times the action of trespass against the offending official
may have been protection enough; but that is true no longer. Only in case the prosecution
which itself controls the seizing officials, knows that it cannot profit by their wrong will that
wrong be repressed.18

In fact, over thirty (30) years before, the Federal Supreme Court had already declared:

If letters and private documents can thus be seized and held and used in evidence against a
citizen accused of an offense, the protection of the 4th Amendment, declaring his rights to be
secure against such searches and seizures, is of no value, and, so far as those thus placed
are concerned, might as well be stricken from the Constitution. The efforts of the courts and
their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided
by the sacrifice of those great principles established by years of endeavor and suffering
which have resulted in their embodiment in the fundamental law of the land.19

This view was, not only reiterated, but, also, broadened in subsequent decisions on the same
Federal Court. 20 After reviewing previous decisions thereon, said Court held, in Mapp vs.
Ohio (supra.):

. . . Today we once again examine the Wolf's constitutional documentation of the right of
privacy free from unreasonable state intrusion, and after its dozen years on our books, are
led by it to close the only courtroom door remaining open to evidence secured by official
lawlessness in flagrant abuse of that basic right, reserved to all persons as a specific
guarantee against that very same unlawful conduct. We hold that all evidence obtained by
searches and seizures in violation of the Constitution is, by that same authority, inadmissible
in a State.

Since the Fourth Amendment's right of privacy has been declared enforceable against the
States through the Due Process Clause of the Fourteenth, it is enforceable against them by
 the same sanction of exclusion as it used against the Federal Government. Were it
otherwise, then just as without the Weeks rule the assurance against unreasonable federal
searches and seizures would be "a form of words," valueless and underserving of mention in
a perpetual charter of inestimable human liberties, so too, without that rule the freedom from
state invasions of privacy would be so ephemeral and so neatly severed from its conceptual
nexus with the freedom from all brutish means of coercing evidence as not to permit this
Court's high regard as a freedom "implicit in the concept of ordered liberty." At the time that
the Court held in Wolf that the amendment was applicable to the States through the Due
Process Clause, the cases of this Court as we have seen, had steadfastly held that as to
federal officers the Fourth Amendment included the exclusion of the evidence seized in
violation of its provisions. Even Wolf "stoutly adhered" to that proposition. The right to when
conceded operatively enforceable against the States, was not susceptible of destruction by
avulsion of the sanction upon which its protection and enjoyment had always been deemed
dependent under the Boyd, Weeks and Silverthorne Cases. Therefore, in extending the
substantive protections of due process to all constitutionally unreasonable searches — state
or federal — it was logically and constitutionally necessarily that the exclusion doctrine — an
essential part of the right to privacy — be also insisted upon as an essential ingredient of the
right newly recognized by the Wolf Case. In short, the admission of the new constitutional
Right by Wolf could not tolerate denial of its most important constitutional privilege, namely,
the exclusion of the evidence which an accused had been forced to give by reason of the
unlawful seizure. To hold otherwise is to grant the right but in reality to withhold its privilege
and enjoyment. Only last year the Court itself recognized that the purpose of the
exclusionary rule to "is to deter — to compel respect for the constitutional guaranty in the
only effectively available way — by removing the incentive to disregard it" . . . .

The ignoble shortcut to conviction left open to the State tends to destroy the entire system of
constitutional restraints on which the liberties of the people rest. Having once recognized that
the right to privacy embodied in the Fourth Amendment is enforceable against the States,
and that the right to be secure against rude invasions of privacy by state officers is, therefore
constitutional in origin, we can no longer permit that right to remain an empty promise.
Because it is enforceable in the same manner and to like effect as other basic rights secured
by its Due Process Clause, we can no longer permit it to be revocable at the whim of any
police officer who, in the name of law enforcement itself, chooses to suspend its enjoyment.
Our decision, founded on reason and truth, gives to the individual no more than that which
the Constitution guarantees him to the police officer no less than that to which honest law
enforcement is entitled, and, to the courts, that judicial integrity so necessary in the true
administration of justice. (emphasis ours.)

Indeed, the non-exclusionary rule is contrary, not only to the letter, but also, to the spirit of the
constitutional injunction against unreasonable searches and seizures. To be sure, if the applicant for
a search warrant has competent evidence to establish probable cause of the commission of a given
crime by the party against whom the warrant is intended, then there is no reason why the applicant
should not comply with the requirements of the fundamental law. Upon the other hand, if he has no
such competent evidence, then it is not possible for the Judge to find that there is probable cause,
and, hence, no justification for the issuance of the warrant. The only possible explanation (not
justification) for its issuance is the necessity of fishing evidence of the commission of a crime. But,
then, this fishing expedition is indicative of the absence of evidence to establish a probable cause.

Moreover, the theory that the criminal prosecution of those who secure an illegal search warrant
and/or make unreasonable searches or seizures would suffice to protect the constitutional guarantee
under consideration, overlooks the fact that violations thereof are, in general, committed By agents
of the party in power, for, certainly, those belonging to the minority could not possibly abuse a power
they do not have. Regardless of the handicap under which the minority usually — but,
understandably — finds itself in prosecuting agents of the majority, one must not lose sight of the
fact that the psychological and moral effect of the possibility 21 of securing their conviction, is watered
down by the pardoning power of the party for whose benefit the illegality had been committed.

In their Motion for Reconsideration and Amendment of the Resolution of this Court dated June 29,
1962, petitioners allege that Rooms Nos. 81 and 91 of Carmen Apartments, House No. 2008, Dewey
Boulevard, House No. 1436, Colorado Street, and Room No. 304 of the Army-Navy Club, should be
included among the premises considered in said Resolution as residences of herein petitioners,
Harry S. Stonehill, Robert P. Brook, John J. Brooks and Karl Beck, respectively, and that,
furthermore, the records, papers and other effects seized in the offices of the corporations above
referred to include personal belongings of said petitioners and other effects under their exclusive
possession and control, for the exclusion of which they have a standing under the latest rulings of
the federal courts of federal courts of the United States. 22

We note, however, that petitioners' theory, regarding their alleged possession of and control over the
aforementioned records, papers and effects, and the alleged "personal" nature thereof, has Been
Advanced, not in their petition or amended petition herein, but in the Motion for Reconsideration and
Amendment of the Resolution of June 29, 1962. In other words, said theory would appear to be
readjustment of that followed in said petitions, to suit the approach intimated in the Resolution
sought to be reconsidered and amended. Then, too, some of the affidavits or copies of alleged
affidavits attached to said motion for reconsideration, or submitted in support thereof, contain either
inconsistent allegations, or allegations inconsistent with the theory now advanced by petitioners
herein.

Upon the other hand, we are not satisfied that the allegations of said petitions said motion for
reconsideration, and the contents of the aforementioned affidavits and other papers submitted in
support of said motion, have sufficiently established the facts or conditions contemplated in the
cases relied upon by the petitioners; to warrant application of the views therein expressed, should
we agree thereto. At any rate, we do not deem it necessary to express our opinion thereon, it being
best to leave the matter open for determination in appropriate cases in the future.

We hold, therefore, that the doctrine adopted in the Moncado case must be, as it is hereby,
abandoned; that the warrants for the search of three (3) residences of herein petitioners, as
specified in the Resolution of June 29, 1962, are null and void; that the searches and seizures
therein made are illegal; that the writ of preliminary injunction heretofore issued, in connection with
the documents, papers and other effects thus seized in said residences of herein petitioners is
hereby made permanent; that the writs prayed for are granted, insofar as the documents, papers
and other effects so seized in the aforementioned residences are concerned; that the
aforementioned motion for Reconsideration and Amendment should be, as it is hereby, denied; and
that the petition herein is dismissed and the writs prayed for denied, as regards the documents,
papers and other effects seized in the twenty-nine (29) places, offices and other premises
enumerated in the same Resolution, without special pronouncement as to costs.

It is so ordered.

Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar and Sanchez, JJ., concur.

CASTRO, J., concurring and dissenting:

From my analysis of the opinion written by Chief Justice Roberto Concepcion and from the import of
the deliberations of the Court on this case, I gather the following distinct conclusions:
 1. All the search warrants served by the National Bureau of Investigation in this case are
general warrants and are therefore proscribed by, and in violation of, paragraph 3 of section
1 of Article III (Bill of Rights) of the Constitution;

2. All the searches and seizures conducted under the authority of the said search warrants
were consequently illegal;

3. The non-exclusionary rule enunciated in Moncado vs. People, 80 Phil. 1, should be, and is
declared, abandoned;

4. The search warrants served at the three residences of the petitioners

are expressly declared null and void the searches and seizures therein made
are expressly declared illegal; and the writ of preliminary injunction heretofore issued against
the use of the documents, papers and effect seized in the said residences is made
permanent; and

5. Reasoning that the petitioners have not in their pleadings satisfactorily demonstrated that
they have legal standing to move for the suppression of the documents, papers and effects
seized in the places other than the three residences adverted to above, the opinion written
by the Chief Justice refrains from expressly declaring as null and void the such warrants
served at such other places and as illegal the searches and seizures made therein, and
leaves "the matter open for determination in appropriate cases in the future."

It is precisely the position taken by the Chief Justice summarized in the immediately preceding
paragraph (numbered 5) with which I am not in accord.

I do not share his reluctance or unwillingness to expressly declare, at this time, the nullity of the
search warrants served at places other than the three residences, and the illegibility of the searches
and seizures conducted under the authority thereof. In my view even the exacerbating passions and
prejudices inordinately generated by the environmental political and moral developments of this case
should not deter this Court from forthrightly laying down the law not only for this case but as well for
future cases and future generations. All the search warrants, without exception, in this case are
admittedly general, blanket and roving warrants and are therefore admittedly and indisputably
outlawed by the Constitution; and the searches and seizures made were therefore unlawful. That the
petitioners, let us assume in gratia argumente, have no legal standing to ask for the suppression of
the papers, things and effects seized from places other than their residences, to my mind, cannot in
any manner affect, alter or otherwise modify the intrinsic nullity of the search warrants and the
intrinsic illegality of the searches and seizures made thereunder. Whether or not the petitioners
possess legal standing the said warrants are void and remain void, and the searches and seizures
were illegal and remain illegal. No inference can be drawn from the words of the Constitution that
"legal standing" or the lack of it is a determinant of the nullity or validity of a search warrant or of the
lawfulness or illegality of a search or seizure.

On the question of legal standing, I am of the conviction that, upon the pleadings submitted to this
Court the petitioners have the requisite legal standing to move for the suppression and return of the
documents, papers and effects that were seized from places other than their family residences.

Our constitutional provision on searches and seizures was derived almost verbatim from the Fourth
Amendment to the United States Constitution. In the many years of judicial construction and
interpretation of the said constitutional provision, our courts have invariably regarded as doctrinal the
pronouncement made on the Fourth Amendment by federal courts, especially the Federal Supreme
Court and the Federal Circuit Courts of Appeals.
The U.S. doctrines and pertinent cases on standing to move for the suppression or return of
documents, papers and effects which are the fruits of an unlawful search and seizure, may be
summarized as follows; (a) ownership of documents, papers and effects gives "standing;" (b)
ownership and/or control or possession — actual or constructive — of premises searched gives
"standing"; and (c) the "aggrieved person" doctrine where the search warrant and the sworn
application for search warrant are "primarily" directed solely and exclusively against the "aggrieved
person," gives "standing."

An examination of the search warrants in this case will readily show that, excepting three, all were
directed against the petitioners personally. In some of them, the petitioners were named personally,
followed by the designation, "the President and/or General Manager" of the particular corporation.
The three warrants excepted named three corporate defendants. But the
"office/house/warehouse/premises" mentioned in the said three warrants were also the same
"office/house/warehouse/premises" declared to be owned by or under the control of the petitioners in
all the other search warrants directed against the petitioners and/or "the President and/or General
Manager" of the particular corporation. (see pages 5-24 of Petitioners' Reply of April 2, 1962). The
searches and seizures were to be made, and were actually made, in the
"office/house/warehouse/premises" owned by or under the control of the petitioners.

Ownership of matters seized gives "standing."

Ownership of the properties seized alone entitles the petitioners to bring a motion to return and
suppress, and gives them standing as persons aggrieved by an unlawful search and seizure
regardless of their location at the time of seizure. Jones vs. United States, 362 U.S. 257, 261 (1960)
(narcotics stored in the apartment of a friend of the defendant); Henzel vs. United States, 296 F. 2d.
650, 652-53 (5th Cir. 1961), (personal and corporate papers of corporation of which the defendant
was president), United States vs. Jeffers, 342 U.S. 48 (1951) (narcotics seized in an apartment not
belonging to the defendant); Pielow vs. United States, 8 F. 2d 492, 493 (9th Cir. 1925) (books seized
from the defendant's sister but belonging to the defendant); Cf. Villano vs. United States, 310 F. 2d
680, 683 (10th Cir. 1962) (papers seized in desk neither owned by nor in exclusive possession of the
defendant).

In a very recent case (decided by the U.S. Supreme Court on December 12, 1966), it was held that
under the constitutional provision against unlawful searches and seizures, a person places himself
or his property within a constitutionally protected area, be it his home or his office, his hotel room or
his automobile:

Where the argument falls is in its misapprehension of the fundamental nature and scope of
Fourth Amendment protection. What the Fourth Amendment protects is the security a man
relies upon when he places himself or his property within a constitutionally protected area, be
it his home or his office, his hotel room or his automobile. There he is protected from
unwarranted governmental intrusion. And when he puts some thing in his filing cabinet, in his
desk drawer, or in his pocket, he has the right to know it will be secure from an unreasonable
search or an unreasonable seizure. So it was that the Fourth Amendment could not tolerate
the warrantless search of the hotel room in Jeffers, the purloining of the petitioner's private
papers in Gouled, or the surreptitious electronic surveilance in Silverman. Countless other
cases which have come to this Court over the years have involved a myriad of differing
factual contexts in which the protections of the Fourth Amendment have been appropriately
invoked. No doubt, the future will bring countless others. By nothing we say here do we
either foresee or foreclose factual situations to which the Fourth Amendment may be
applicable. (Hoffa vs. U.S., 87 S. Ct. 408 (December 12, 1966). See also U.S. vs. Jeffers,
342 U.S. 48, 72 S. Ct. 93 (November 13, 1951). (Emphasis supplied).
Control of premises searched gives "standing."

Independent of ownership or other personal interest in the records and documents seized, the
petitioners have standing to move for return and suppression by virtue of their proprietary or
leasehold interest in many of the premises searched. These proprietary and leasehold interests have
been sufficiently set forth in their motion for reconsideration and need not be recounted here, except
to emphasize that the petitioners paid rent, directly or indirectly, for practically all the premises
searched (Room 91, 84 Carmen Apts; Room 304, Army & Navy Club; Premises 2008, Dewey
Boulevard; 1436 Colorado Street); maintained personal offices within the corporate offices (IBMC,
USTC); had made improvements or furnished such offices; or had paid for the filing cabinets in
which the papers were stored (Room 204, Army & Navy Club); and individually, or through their
respective spouses, owned the controlling stock of the corporations involved. The petitioners'
proprietary interest in most, if not all, of the premises searched therefore independently gives them
standing to move for the return and suppression of the books, papers and affects seized therefrom.

In Jones vs. United States, supra, the U.S. Supreme Court delineated the nature and extent of the
interest in the searched premises necessary to maintain a motion to suppress. After reviewing what
it considered to be the unduly technical standard of the then prevailing circuit court decisions, the
Supreme Court said (362 U.S. 266):

We do not lightly depart from this course of decisions by the lower courts. We are
persuaded, however, that it is unnecessarily and ill-advised to import into the law
surrounding the constitutional right to be free from unreasonable searches and seizures
subtle distinctions, developed and refined by the common law in evolving the body of private
property law which, more than almost any other branch of law, has been shaped by
distinctions whose validity is largely historical. Even in the area from which they derive, due
consideration has led to the discarding of those distinctions in the homeland of the common
law. See Occupiers' Liability Act, 1957, 5 and 6 Eliz. 2, c. 31, carrying out Law Reform
Committee, Third Report, Cmd. 9305. Distinctions such as those between "lessee",
"licensee," "invitee," "guest," often only of gossamer strength, ought not be determinative in
fashioning procedures ultimately referable to constitutional safeguards. See also Chapman
vs. United States, 354 U.S. 610, 616-17 (1961).

It has never been held that a person with requisite interest in the premises searched must own the
property seized in order to have standing in a motion to return and suppress. In Alioto vs. United
States, 216 F. Supp. 48 (1963), a Bookkeeper for several corporations from whose apartment the
corporate records were seized successfully moved for their return. In United States vs. Antonelli,
Fireworks Co., 53 F. Supp. 870, 873 (W D. N. Y. 1943), the corporation's president successfully
moved for the return and suppression is to him of both personal and corporate documents seized
from his home during the course of an illegal search:

The lawful possession by Antonelli of documents and property, "either his own or the
corporation's was entitled to protection against unreasonable search and seizure. Under the
circumstances in the case at bar, the search and seizure were unreasonable and unlawful.
The motion for the return of seized article and the suppression of the evidence so obtained
should be granted. (Emphasis supplied).

Time was when only a person who had property in interest in either the place searched or the
articles seize had the necessary standing to invoke the protection of the exclusionary rule. But
in MacDonald vs. Unite States, 335 U.S. 461 (1948), Justice Robert Jackson joined by Justice Felix
Frankfurter, advanced the view that "even a guest may expect the shelter of the rooftree he is under
against criminal intrusion." This view finally became the official view of the U.S. Supreme Court and
was articulated in United States vs. Jeffers, 432 U.S 48 (1951). Nine years later, in 1960, in Jones
vs. Unite States, 362 U.S. 257, 267, the U.S. Supreme Court went a step further. Jones was a mere
guest in the apartment unlawfully searched but the Court nonetheless declared that the exclusionary
rule protected him as well. The concept of "person aggrieved by an unlawful search and seizure"
was enlarged to include "anyone legitimately on premise where the search occurs."

Shortly after the U.S. Supreme Court's Jones decision the U.S. Court of Appeals for the Fifth Circuit
held that the defendant organizer, sole stockholder and president of a corporation had standing in a
mail fraud prosecution against him to demand the return and suppression of corporate
property. Henzel vs. United States, 296 F 2d 650, 652 (5th Cir. 1961), supra. The court conclude
that the defendant had standing on two independent grounds: First — he had a sufficient interest in
the property seized, and second — he had an adequate interest in the premises searched (just like
in the case at bar). A postal inspector had unlawfully searched the corporation' premises and had
seized most of the corporation's book and records. Looking to Jones, the court observed:

Jones clearly tells us, therefore, what is not required qualify one as a "person aggrieved by
an unlawful search and seizure." It tells us that appellant should not have been precluded
from objecting to the Postal Inspector's search and seizure of the corporation's books and
records merely because the appellant did not show ownership or possession of the books
and records or a substantial possessory interest in the invade premises . . . (Henzel vs.
United States, 296 F. 2d at 651). .

Henzel was soon followed by Villano vs. United States, 310 F. 2d 680, 683, (10th Cir. 1962).
In Villano, police officers seized two notebooks from a desk in the defendant's place of employment;
the defendant did not claim ownership of either; he asserted that several employees (including
himself) used the notebooks. The Court held that the employee had a protected interest and that
there also was an invasion of privacy. Both Henzel and Villano considered also the fact that the
search and seizure were "directed at" the moving defendant. Henzel vs. United States, 296 F. 2d at
682; Villano vs. United States, 310 F. 2d at 683.

In a case in which an attorney closed his law office, placed his files in storage and went to Puerto
Rico, the Court of Appeals for the Eighth Circuit recognized his standing to move to quash as
unreasonable search and seizure under the Fourth Amendment of the U.S. Constitution a grand jury
subpoena duces tecum directed to the custodian of his files. The Government contended that the
petitioner had no standing because the books and papers were physically in the possession of the
custodian, and because the subpoena was directed against the custodian. The court rejected the
contention, holding that

Schwimmer legally had such possession, control and unrelinquished personal rights in the
books and papers as not to enable the question of unreasonable search and seizure to be
escaped through the mere procedural device of compelling a third-party naked possessor to
produce and deliver them. Schwimmer vs. United States, 232 F. 2d 855, 861 (8th Cir. 1956).

Aggrieved person doctrine where the search warrant s primarily directed against said person
gives "standing."

The latest United States decision squarely in point is United States vs. Birrell, 242 F. Supp. 191
(1965, U.S.D.C. S.D.N.Y.). The defendant had stored with an attorney certain files and papers,
which attorney, by the name of Dunn, was not, at the time of the seizing of the records, Birrell's
attorney. * Dunn, in turn, had stored most of the records at his home in the country and on a farm
which, according to Dunn's affidavit, was under his (Dunn's) "control and management." The papers
turned out to be private, personal and business papers together with corporate books and records of
certain unnamed corporations in which Birrell did not even claim ownership. (All of these type
records were seized in the case at bar). Nevertheless, the search in Birrell was held invalid by the
court which held that even though Birrell did not own the premises where the records were stored,
he had "standing" to move for the return of all the papers and properties seized. The court, relying
on Jones vs. U.S., supra; U.S. vs. Antonelli Fireworks Co., 53 F. Supp. 870, Aff'd 155 F. 2d
631: Henzel vs. U.S., supra; and Schwimmer vs. U.S., supra, pointed out that

It is overwhelmingly established that the searches here in question were directed solely and
exclusively against Birrell. The only person suggested in the papers as having violated the
law was Birrell. The first search warrant described the records as having been used "in
committing a violation of Title 18, United States Code, Section 1341, by the use of the mails
by one Lowell M. Birrell, . . ." The second search warrant was captioned: "United States of
America vs. Lowell M. Birrell. (p. 198)

Possession (actual or constructive), no less than ownership, gives standing to move to

suppress. Such was the rule even before Jones. (p. 199)

If, as thus indicated Birrell had at least constructive possession of the records stored with
Dunn, it matters not whether he had any interest in the premises searched. See also Jeffers
v. United States, 88 U.S. Appl. D.C. 58, 187 F. 2d 498 (1950), affirmed 432 U.S. 48, 72 S.
Ct. 93, 96 L. Ed. 459 (1951).

The ruling in the Birrell case was reaffirmed on motion for reargument; the United States did not
appeal from this decision. The factual situation in Birrell is strikingly similar to the case of the present
petitioners; as in Birrell, many personal and corporate papers were seized from premises not
petitioners' family residences; as in Birrell, the searches were "PRIMARILY DIRECTED SOLETY
AND EXCLUSIVELY" against the petitioners. Still both types of documents were suppressed
in Birrell because of the illegal search. In the case at bar, the petitioners connection with the
premises raided is much closer than in Birrell.

Thus, the petitioners have full standing to move for the quashing of all the warrants regardless
whether these were directed against residences in the narrow sense of the word, as long as the
documents were personal papers of the petitioners or (to the extent that they were corporate papers)
were held by them in a personal capacity or under their personal control.

Prescinding a from the foregoing, this Court, at all events, should order the return to the petitioners
all personal and private papers and effects seized, no matter where these were seized, whether from
their residences or corporate offices or any other place or places. The uncontradicted sworn
statements of the petitioners in their, various pleadings submitted to this Court indisputably show
that amongst the things seized from the corporate offices and other places
were personal and private papers and effects belonging to the petitioners.

If there should be any categorization of the documents, papers and things which where the objects
of the unlawful searches and seizures, I submit that the grouping should be:
(a) personal or private papers of the petitioners were they were unlawfully seized, be it their family
residences offices, warehouses and/or premises owned and/or possessed (actually or
constructively) by them as shown in all the search and in the sworn applications filed in securing the
void search warrants and (b) purely corporate papers belonging to corporations. Under such
categorization or grouping, the determination of which unlawfully seized papers, documents and
things are personal/private of the petitioners or purely corporate papers will have to be left to the
lower courts which issued the void search warrants in ultimately effecting the suppression and/or
return of the said documents.
And as unequivocally indicated by the authorities above cited, the petitioners likewise have clear
legal standing to move for the suppression of purely corporate papers as "President and/or General
Manager" of the corporations involved as specifically mentioned in the void search warrants.

Finally, I must articulate my persuasion that although the cases cited in my disquisition were criminal
prosecutions, the great clauses of the constitutional proscription on illegal searches and seizures do
not withhold the mantle of their protection from cases not criminal in origin or nature.

G.R. No. L-10280 September 30, 1963

QUA CHEE GAN, JAMES UY, DANIEL DY alias DEE PAC, CHAN TIONG YU, CUA CHU TIAN,
CHUA LIM PAO alias JOSE CHUA and BASILIO KING, petitioners-appellants,
vs.
THE DEPORTATION BOARD, respondent-appellee.

Sabido and Sabido Law Offices and Ramon T. Oben for petitioners-appellants.
Solicitor General for respondent-appellee.

BARRERA, J.:

This is an appeal from the decision of the Court of First Instance of Manila (in Sp. Proc. No. 20037)
denying the petition for writs of habeas corpus and/or prohibition, certiorari, and mandamus filed by
Qua Chee Gan, James Uy, Daniel Dy alias Dee Pac, Chan Tiong Yu, Chua Chu Tian, Chua Lim
Pao alias Jose Chua, and Basilio King. The facts of the case, briefly stated, are as follows:.

On May 12, 1952, Special Prosecutor Emilio L. Galang charged the above-named petitioners before
the Deportation Board, with having purchased U.S. dollars in the total sum of $130,000.00, without
the necessary license from the Central Bank of the Philippines, and of having clandestinely remitted
the same to Hongkong and petitioners, Qua Chee Gan, Chua Lim Pao alias Jose Chua, and Basilio
King, with having attempted to bribe officers of the Philippine and United States Governments
(Antonio Laforteza, Chief of the Intelligence Division of the Central Bank, and Capt. A. P. Charak of
the OSI, U.S. Air Force) in order to evade prosecution for said unauthorized purchase of U.S.
dollars.1

Following the filing of said deportation charges, a warrant for the arrest of said aliens was issued by
the presiding member of the Deportation Board. Upon their filing surety bond for P10,000.00 and
cash bond for P10,000.00, herein petitioners-appellants were provisionally set at liberty.

On September 22, 1952, petitioners-appellants filed a joint motion to dismiss the charges presented
against them in the Deportation Board for the reason, among others, that the same do not constitute
legal ground for deportation of aliens from this country, and that said Board has no jurisdiction to
entertain such charges. This motion to dismiss having been denied by order of the Board of
February 9, 1953, petitioners-appellants filed in this Court a petition for habeas corpus and/or
prohibition, which petition was given due course in our resolution of July 7, 1953, but made
returnable to the Court of First Instance of Manila (G.R. No. L-6783). The case was docketed in the
lower court as Special Proceeding No. 20037.

At the instance of petitioners and upon their filing a bond for P5,000.00 each, a writ of preliminary
injunction was issued by the lower court, restraining the respondent Deportation Board from hearing
Deportation charges No. R-425 against petitioners, pending final termination of the habeas
corpus and/or prohibition proceedings.

On July 29, 1953, the respondent Board filed its answer to the original petition, maintaining among
others, that the Deportation Board, as an agent of the President, has jurisdiction over the charges
filed against petitioners and the authority to order their arrest; and that, while petitioner Qua Chee
Gan was acquitted of the offense of attempted bribery of a public official, he was found in the same
decision of the trial court that he did actually offer money to an officer of the United States Air Force
in order that the latter may abstain from assisting the Central Bank official in the investigation of the
purchase of $130,000.00 from the Clark Air Force Base, wherein said petitioner was involved.

After due trial, the court rendered a decision on January 18, 1956, upholding the validity of the
delegation by the president to the Deportation Board of his power to conduct investigations for the
purpose of determining whether the stay of an alien in this country would be injurious to the security,
welfare and interest of the State. The court, likewise, sustained the power of the deportation Board
to issue warrant of arrest and fix bonds for the alien's temporary release pending investigation of
charges against him, on the theory that the power to arrest and fix the amount of the bond of the
arrested alien is essential to and complement the power to deport aliens pursuant to Section 69 of
the Revised Administrative Code. Consequently, the petitioners instituted the present appeal. .

It may be pointed out at the outset that after they were provisionally released on bail, but before the
charges filed against them were actually investigated, petitioners-appellant raised the question of
jurisdiction of the Deportation Board, first before said body, then in the Court of First Instance, and
now before us. Petitioners-appellants contest the power of the President to deport aliens and,
consequently, the delegation to the Deportation Board of the ancillary power to investigate, on the
ground that such power is vested in the Legislature. In other words, it is claimed, for the power to
deport to be exercised, there must be a legislation authorizing the same.

Under Commonwealth Act No. 613 (Immigration Act of 1940), the Commissioner of Immigration was
empowered to effect the arrest and expulsion of an alien, after previous determination by the Board
of Commissioners of the existence of ground or grounds therefor (Sec- 37). With the enactment of
this law, however, the legislature did not intend to delimit or concentrate the exercise of the power to
deport on the Immigration Commissioner alone, because in its Section 52, it provides:.

SEC. 52. This Act is in substitution for and supersedes all previous laws relating to the entry
of aliens into the Philippines, and their exclusion, deportation, and repatriation therefrom,
with the exception of section sixty-nine of Act Numbered Twenty-seven hundred and eleven
which shall continue in force and effect: ..." (Comm. Act No. 613).

Section 69 of Act No. 2711 (Revised Administrative Code) referred to above reads:.

SEC. 69 Deportation of subject to foreign power. — A subject of a foreign power residing in

the Philippines shall not be deported, expelled, or excluded from said Islands or repatriated
to his own country by the President of the Philippines except upon prior investigation,
conducted by said Executive or his authorized agent, of the ground upon which Such action
is contemplated. In such case the person concerned shall be informed of the charge or
charges against him and he shall be allowed not less than these days for the preparation of
 his defense. He shall also have the right to be heard by himself or counsel, to produce
witnesses in his own behalf, and to cross-examine the opposing witnesses."

While it may really be contended that the aforequoted provision did not expressly confer on the
President the authority to deport undesirable aliens, unlike the express grant to the Commissioner of
Immigration under Commonwealth Act No. 613, but merely lays down the procedure to be observed
should there be deportation proceedings, the fact that such a procedure was provided for before the
President can deport an alien-which provision was expressly declared exempted from the repealing
effect of the Immigration Act of 1940-is a clear indication of the recognition, and inferentially a
ratification, by the legislature of the existence of such power in the Executive. And the, exercise of
this power by the chief Executive has been sanctioned by this Court in several decisions.2

Under the present and existing laws, therefore, deportation of an undesirable alien may be effected
in two ways: by order of the President, after due investigation, pursuant to Section 69 of the Revised
Administrative Code, and by the Commissioner of Immigration, upon recommendation by the Board
of Commissioners, under Section 37 of Commonwealth Act No. 613.

Petitioners contend, however, that even granting that the President is invested with power to deport,
still he may do so only upon the grounds enumerated in Commonwealth Act No. 613, as amended,
and on no other, as it would be unreasonable and undemocratic to hold that an alien may be
deported upon an unstated or undefined ground depending merely on the unlimited discretion of the
Chief Executive. This contention is not without merit, considering that whenever the legislature
believes a certain act or conduct to be a just cause for deportation, it invariably enacts a law to that
effect. Thus, in a number of amendatory acts, grounds have been added to those originally
contained in Section 37 of Commonwealth Act No. 613, as justifying deportation of an alien, as well
as other laws which provide deportation as part of the penalty imposed on aliens committing
violation thereof.

Be this as it may, the charges against the herein petitioners constitute in effect an act of profiteering,
hoarding or blackmarketing of U.S. dollars, in violation of the Central Bank regulations — an
economic sabotage — which is a ground for deportation under the provisions of Republic Act 503
amending Section 37 of the Philippine Immigration Act of 1940. The President may therefore order
the deportation of these petitioners if after investigation they are shown to have committed the act
charged.

There seems to be no doubt that the President's power of investigation may be delegated. This is
clear from a reading of Section 69 of the Revised Administrative Code which provides for a "prior
investigation, conducted by said Executive (the President) or his authorized agent." The first
executive order on the subject was that of Governor General Frank Murphy (No. 494, July 26, 1934),
constituting a board to take action on complaints against foreigners, to conduct investigations and
thereafter make recommendations. By virtue of Executive Order No. 33 dated May 29, 1936,
President Quezon created the Deportation Board primarily to receive complaints against aliens
charged to be undesirable, to conduct investigation pursuant to Section 69 of the Revised
Administrative Code and the rules and regulations therein provided, and make the corresponding
recommendation. 3 Since then, the Deportation Board has been conducting the investigation as the
authorized agent of the President.

This gives rise to the question regarding the extent of the power of the President to conduct
investigation, i.e., whether such authority carries with it the power to order the arrest of the alien
complained of, since the Administrative Code is silent on the matter, and if it does, whether the same
may be delegated to the respondent Deportation Board. 1aw phîl.nèt
Let it be noted that Section 69 of the Revised Administrative Code, unlike Commonwealth Act No.
613 wherein the Commissioner of Immigration was specifically granted authority, among others, to
make arrests, fails to provide the President with like specific power to be exercised in connection
with such investigation. It must be for this reason that President Roxas for the first time, saw it
necessary to issue his Executive Order No. 69, dated July 29, 1947, providing —

For the purpose of insuring the appearance of aliens charged before the Deportation Board
created under Executive Order No. 37, dated January 4, 1947, and facilitating the execution
of the order of deportation whenever the President decides the case against the respondent.
I, Manuel Roxas, President of the Philippines, by virtue of the powers vested in me by law,
do hereby order that all respondents in deportation proceedings shall file a bond with the
Commissioner of Immigration in such amount and containing such conditions as he may
prescribe. .

xxx xxx xxx

Note that the executive order only required the filing of a bond to secure appearance of the alien
under investigation. It did not authorize the arrest of the respondent.

It was only on January 5, 1951, when President Quirino reorganized the Deportation Board by virtue
of his Executive Order No. 398, that the Board was authorized motu proprio or upon the filing of
formal charges by the Special Prosecutor of the Board, to issue the warrant for the arrest of the alien
complained of and to hold him under detention during the investigation unless he files a bond for his
provisional release in such amount and under such conditions as may be prescribed by the
Chairman of the Board.

As has been pointed out elsewhere, Section 69 of the Revised Administrative Code, upon whose
authority the President's power to deport is predicated, does not provide for the exercise of the
power to arrest. But the Solicitor General argues that the law could not have denied to the Chief
Executive acts which are absolutely necessary to carry into effect the power of deportation granted
him, such as the authority to order the arrest of the foreigner charged as undesirable.

In this connection, it must be remembered that the right of an individual to be secure in his person is
guaranteed by the Constitution in the following language:.

3. 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, Art. III, Bill of
Rights, Philippine Constitution).

As observed by the late Justice Laurel in his concurring opinion in the case of Rodriguez, et al. v.
Villamiel, et al. (65 Phil. 230, 239), this provision is not the same as that contained in the Jones Law
wherein this guarantee is placed among the rights of the accused. Under our Constitution, the same
is declared a popular right of the people and, of course, indisputably it equally applies to both
citizens and foreigners in this country. Furthermore, a notable innovation in this guarantee is found in
our Constitution in that it specifically provides that the probable cause upon which a warrant of arrest
may be issued, must be determined by the judge after examination under oath, etc., of the
complainant and the witnesses he may produce. This requirement — "to be determined by the
judge" — is not found in the Fourth Amendment of the U.S. Constitution, in the Philippine Bill or in
the Jones Act, all of which do not specify who will determine the existence of a probable cause.
Hence, under their provisions, any public officer may be authorized by the Legislature to make such
determination, and thereafter issue the warrant of arrest. Under the express terms of our
Constitution, it is, therefore, even doubtful whether the arrest of an individual may be ordered by any
authority other than the judge if the purpose is merely to determine the existence of a probable
cause, leading to an administrative investigation. The Constitution does not distinguish between
warrants in a criminal case and administrative warrants in administrative proceedings. And, if one
suspected of having committed a crime is entitled to a determination of the probable cause against
him, by a judge, why should one suspected of a violation of an administrative nature deserve less
guarantee? Of course it is different if the order of arrest is issued to carry out a final finding of a
violation, either by an executive or legislative officer or agency duly authorized for the purpose, as
then the warrant is not that mentioned in the Constitution which is issuable only on probable cause.
Such, for example, would be a warrant of arrest to carry out a final order of deportation, or to effect
compliance of an order of contempt.

The contention of the Solicitor General that the arrest of a foreigner is necessary to carry into effect
the power of deportation is valid only when, as already stated, there is already an order of
deportation. To carry out the order of deportation, the President obviously has the power to order the
arrest of the deportee. But, certainly, during the investigation, it is not indispensable that the alien be
arrested. It is enough, as was true before the executive order of President Quirino, that a bond be
required to insure the appearance of the alien during the investigation, as was authorized in the
executive order of President Roxas. Be that as it may, it is not imperative for us to rule, in this
proceeding - and nothing herein said is intended to so decide — on whether or not the President
himself can order the arrest of a foreigner for purposes of investigation only, and before a definitive
order of deportation has been issued. We are merely called upon to resolve herein whether,
conceding without deciding that the President can personally order the arrest of the alien complained
of, such power can be delegated by him to the Deportation Board.

Unquestionably, the exercise of the power to order the arrest of an individual demands the exercise
of discretion by the one issuing the same, to determine whether under specific circumstances, the
curtailment of the liberty of such person is warranted. The fact that the Constitution itself, as well as
the statute relied upon, prescribe the manner by which the warrant may be issued, conveys the
intent to make the issuance of such warrant dependent upon conditions the determination of the
existence of which requires the use of discretion by the person issuing the same. In other words, the
discretion of whether a warrant of arrest shall issue or not is personal to the one upon whom the
authority devolves. And authorities are to the effect that while ministerial duties may be delegated,
official functions requiring the exercise of discretion and judgment, may not be so delegated. Indeed,
an implied grant of power, considering that no express authority was granted by the law on the
matter under discussion, that would serve the curtailment or limitation on the fundamental right of a
person, such as his security to life and liberty, must be viewed with caution, if we are to give
meaning to the guarantee contained in the Constitution. If this is so, then guarantee a delegation of
that implied power, nebulous as it is, must be rejected as inimical to the liberty of the people. The
guarantees of human rights and freedom can not be made to rest precariously on such a shaky
foundation.

We are not unaware of the statements made by this Court in the case of Tan Sin v. Deportation
Board (G.R. No. L-11511, Nov. 28,1958). It may be stated, however, that the power of arrest was not
squarely raised in that proceeding, but only as a consequence of therein petitioner's proposition that
the President had no inherent power to deport and that the charges filed against him did not
constitute ground for deportation. .

IN VIEW OF THE FOREGOING, Executive Order No. 398, series of 1951, insofar as it empowers
the Deportation Board to issue warrant of arrest upon the filing of formal charges against an alien or
aliens and to fix bond and prescribe the conditions for the temporary release of said aliens, is
declared illegal. As a consequence, the order of arrest issued by the respondent Deportation Board
is declared null and void and the bonds filed pursuant to such order of arrest, decreed cancelled.
With the foregoing modification, the decision appealed from is hereby affirmed. No costs. So
ordered.

G.R. No. 139301 September 29, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
HUANG ZHEN HUA and JOGY LEE, appellants.

DECISION

CALLEJO, SR., J.:

This is an appeal from the Decision1 of the Regional Trial Court (RTC) of Parañaque City, Metro
Manila, Branch 259, convicting the appellants of violation of Section 16, Article III of Republic Act
No. 6425, as amended.

The Case for the Prosecution

Police operatives of the Public Assistance and Reaction Against Crime (PARAC) under the
Department of Interior and Local Government received word from their confidential informant that
Peter Chan and Henry Lao,2 and appellants Jogy Lee and Huang Zhen Hua were engaged in illegal
drug trafficking. The policemen also learned that appellant Lee was handling the payments and
accounting of the proceeds of the illegal drug trafficking activities of Lao and Chan.3 PO3 Belliardo
Anciro, Jr. and other police operatives conducted surveillance operations and were able to verify that
Lao and appellant Lee were living together as husband and wife. They once spotted Chan, Lao, the
appellants and two others, in a seafood restaurant in Bocobo Street, Ermita, Manila, late in the
evening. On another occasion, the policemen saw Chan, Lao, and the appellants, at the Celicious
Restaurant along R. Sanchez Street, Ermita, Manila, at about 8:30 p.m. They were spotted the third
time at the Midtown Hotel at about 7:00 p.m. to 8:00 p.m.4 The police operatives also verified that
Chan and Lao resided at Room Nos. 1245 and 1247, Cityland Condominium, De la Rosa Street,
Makati City, and in a two-storey condominium unit at No. 19 Atlantic Drive, Pacific Grand Villa, Sto.
Niño, Parañaque, Metro Manila.5

On October 25, 1996, SPO2 Cesar N. Teneros of the PARAC secured Search Warrant No. 96-801
for violation of Presidential Decree (P.D.) No. 1866 (illegal possession of firearms and explosives)
and Search Warrant No. 96-802, for violation of Sections 12, 14 and 16 of Rep. Act No. 6425, as
amended, from Judge William M. Bayhon, Executive Judge of the RTC of Manila.6 Senior Police
Inspector Lucio Margallo supervised the enforcement of Search Warrant No. 96-801 at the Cityland
Condominium at about 11:00 p.m. on October 29, 1996. With him were PO3 Anciro, Jr., PO3
Wilhelm Castillo, SPO3 Roger Ferias and seven other policemen of the PARAC, who were all in
uniform, as well as a Cantonese interpreter by the name of Chuang. While no persons were found
inside, the policemen found two kilos of methamphetamine hydrochloride, popularly known as
shabu, paraphernalia for its production, and machines and tools apparently used for the production
of fake credit cards.7
Thereafter, the police operatives received information that Lao and Chan would be delivering shabu
at the Furama Laser Karaoke Restaurant at the corner of Dasmariñas and Mancha Streets, Manila.
The policemen rushed to the area on board their vehicles. It was 2:00 a.m. of October 26, 1996. The
policemen saw Chan and Lao on board the latter’s Honda Civic car. As the two men alighted, one of
the men approached them and introduced himself, but Chan and Lao fired shots. Thus, a shoot-out
ensued between the members of the raiding team and the two suspects. Chan and Lao were shot to
death during the encounter. The policemen found two plastic bags, each containing one kilo of
shabu, in Lao’s car.

The policemen then proceeded to No. 19 Atlantic Drive, Pacific Grand Villa, to enforce Search
Warrant No. 96-802. When the policemen arrived at the place, they coordinated with Antonio
Pangan, the officer in charge of security in the building.8 The men found that the Condominium Unit
No. 19 was leased to Lao under the name Henry Kao Tsung. The policemen, Pangan and two
security guards of the Pacific Grand Villa proceeded to the condominium unit. Anciro, Jr. knocked
repeatedly on the front door, but no one responded. Pangan, likewise, knocked on the
door.9 Appellant Lee peeped through the window beside the front door.10 The men introduced
themselves as policemen,11 but the appellant could not understand them as she could not speak
English.12 The policemen allowed Pangan to communicate with appellant Lee by sign language and
pointed their uniforms to her to show that they were policemen. The appellant then opened the door
and allowed the policemen, Pangan and the security guards into the condominium unit.13 The
policemen brought appellant Lee to the second floor where there were three bedrooms – a master’s
bedroom and two other rooms. When asked where she and Lao slept, appellant Lee pointed to the
master’s bedroom.14 Anciro, Jr., Margallo and PO3 Wilhelm Castillo then searched the master’s
bedroom, while Ferias and Pangan went to the other bedroom where appellant Zhen Hua was
sleeping.15 Ferias awakened appellant Zhen Hua and identified himself as a policeman. Appellant
Zhen Hua was surprised.16

Anciro, Jr. saw a small cabinet inside the master’s bedroom about six feet high. He stood on a chair,
opened the cabinet and found two transparent plastic bags each containing one kilo of shabu,17 a
feeding bottle, a plastic canister18 and assorted paraphernalia.19 Inside the drawer of the bed’s
headboard, Anciro, Jr. also found assorted documents, pictures, bank passbooks issued by the
Allied Banking Corporation, credit cards, passports and identification cards of Lao and Lee.20 Anciro,
Jr. asked appellant Lee who was the owner of the crystalline substance, but the latter did not
respond because she did not know English.21 Anciro, Jr. asked Margallo for instructions on what to
do with the things he had found, and the latter told him to keep the same for future reference,22 and
as evidence against any other suspect for illegal drug transactions.23 Anciro, Jr., Pangan and
Margallo later showed the seized articles to the other members of the team.24

Anciro, Jr. told appellant Lee to bring some of her clothes because they were bringing her to the
PARAC headquarters. Appellant Lee did as she was told and took some clothes from the cabinet in
the master’s bedroom where Anciro, Jr. had earlier found the shabu.25

The policemen brought the appellants to the PARAC headquarters. The following articles were found
and confiscated by the policemen in the condominium unit:

a. TWO (2) Big Transparent Plastic Bags containing about one (1) Kilo each of white
crystalline granules later tested to be Methamphetamine Hydrochloride or Shabu, a
regulated drug;

b. ONE (1) Transparent Plastic Baby Feeding Bottle containing an undetermined quantity of
suspected Shabu;
 c. ONE (1) Small Plastic Cannister also containing undetermined amount of suspected
Shabu ….

d. Assorted Pieces of Shabu Paraphernalia consisting of Improvised Tooters used for sniffing
shabu, Improvised Burners used for burning Shabu, aluminum foils, etc.;26

Anciro, Jr. placed the articles he found in the cabinet inside a box.27 The appellants were then
brought to the PARAC headquarters where they were detained. Pangan signed a Certification28 that
the search conducted by the policemen had been orderly and peaceful. Anciro, Jr. affixed his initials
on the transparent plastic bags and their contents, the transparent baby feeding bottle and the
plastic cannister and their contents. On October 26, 1996, he and Ferias29 brought the seized items
to the PNP Crime Laboratory for laboratory examination30 along with the letter-request31 thereon.

On the same day, Forensic Chemist Officer Isidro L. Cariño signed Chemistry Report No. D-1243-96
which contained his findings on the laboratory examination of the items which were marked as
Exhibits "A" to "A-4," viz:

SPECIMEN SUBMITTED:

Exh. "A" – One (1) "must de Cartier Paris" carton containing the following:

Exh. "A-1" – One (1) heat-sealed transparent plastic bag containing 1,000.40 grams of white
crystalline substance.

Exh. "A-2" – One (1) heat-sealed transparent plastic bag containing 998.10 grams of white
crystalline substance.

Exh. "A-3" – One (1) transparent plastic "Babyflo Nurser" feeding bottle with pink cover
containing 18.52 grams of white crystalline substance.

Exh. "A-4" – One (1) transparent plastic container with white cover containing 3.28 grams of
white crystalline substance.

NOTE: The above-stated specimen were allegedly taken from the residence of the above-
named subjects. xxx

PURPOSE OF LABORATORY EXAMINATION:

To determine the presence of prohibited and/or regulated drug.

FINDINGS:

Qualitative examination conducted on the above-stated specimens, Exhs. "A-1" through "A-
4" gave POSITIVE result to the test for Methamphetamine hydrochloride, a regulated drug.
xxx32

The police officers executed an affidavit of arrest.33 Pangan and the two security guards signed a
certification stating that nothing was destroyed in the condominium unit and that the search was
orderly and peaceful.34 The policemen also accomplished an inventory of the articles seized during
the search.35
The appellants were charged of violation of Section 16, Rep. Act No. 6425, as amended, in an
Information filed in the RTC of Parañaque, Metro Manila, the accusatory portion of which reads:

That on or about the 26th day of October 1996, in the Municipality of Parañaque, Metro
Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring and confederating together and both of them mutually helping and
aiding one another, not being lawfully authorized to possess or otherwise use any regulated
drug and without the corresponding license or prescription, did then and there willfully,
unlawfully and feloniously have, in their possession and under their control and custody, the
following to wit:

A. One (1) heat-sealed transparent plastic bag containing 1,000.40 grams of white
crystalline substance;

B. One (1) heat-sealed transparent plastic bag containing 998.1 grams of white
crystalline substance;

C. One (1) transparent plastic "Babyflo Nurser" feeding bottle with pink cover
containing 18.52 grams of white crystalline substance;

D. One (1) transparent plastic container with white cover containing 3.28 grams of
white crystalline substance

which when examined were found to be positive for Methamphetamine Hydrochloride

(Shabu), a regulated drug.

CONTRARY TO LAW.36

Both appellants, assisted by counsel, were duly arraigned on November 29, 1992, and pleaded not
guilty to the charge.

The Case for the Appellants

Appellant Jogy Lee denied the charge. She testified that she was a resident of Kwantong, China, a
college graduate who could not speak nor understand English. She was once employed in a real
estate firm. One of her co-employees was Huang Zhen Hua.37 She met Henry Lao in China
sometime in 1995,38 and he brought her to Belgium that same year. Lao also helped her procure a
Belguim passport, for he explained that if she only had a Chinese passport, it would be difficult to
secure visas from countries she wanted to go to and visit; whereas many countries did not require a
Belgian passport holder to secure visas before allowing entry therein. In the process, he and Lao fell
in love and became lovers.

Upon Lao’s invitation, appellant Lee visited the Philippines as a tourist for the first time in April 1996.
Lao met her at the airport, and she was, thereafter, brought to a hotel in Manila where she stayed for
less than a month.39 She returned to the Philippines a second time and was again billeted in a hotel
in Manila. All her expenses were shouldered by Lao, who was engaged in the garlic business.40 As
far as she knew, Lao was not engaged in any other business.41 In June 1996, she invited her friend,
appellant Huang Zhen Hua to visit the Philippines to enjoy the tourist spots.42 They were then in
China.
In the evening of October 1, 1996, appellant Lee returned to the Philippines on a tourist visa. She
was fetched by Lao, and she was brought to his condominium unit at No. 19, Atlantic Drive, Pacific
Grand Villa, Sto. Niño, Parañaque. She had been residing there since then. She and Lao used to go
to the shopping malls43 and she even saw Chan once when he cleaned his Nissan car in Lao’s
garage.

On October 22, 1996, appellant Zhen Hua arrived from China at the NAIA and was met by Lao at the
airport. He tried to check in at the Diamond Hotel but Lee told him that he could stay in the
condominium unit. Zhen Hua was brought to the Villa where he had been staying since then. The
appellants had made plans to visit Cebu.

At about 6:00 a.m. on October 26, 1996, appellant Lee was sleeping in the master’s bedroom at the
condominium unit. She had closed all the windows because she had turned the air conditioning unit
on. Zhen Hua was sleeping in the other bedroom in the second floor beside the master’s bedroom.
Lao’s Honda Civic car and Chan’s Nissan car were in the garage beside the condominium unit.
Momentarily, Lee heard someone knocking on the bedroom door. When she opened it, three (3)
policemen barged into the bedroom and at the room where appellant Zhen Hua was sleeping.
Anciro, Jr. was not among the men. Lee did not hear the policemen knock at the main door before
they entered.44 The policemen were accompanied by Chuang, a Cantonese interpreter, who told her
that the policemen were going to search the house.45 Appellant Lee saw a policeman holding two
papers, but no search warrant was shown to her.46 She was so frightened.

The policemen placed two plastic bags on the bed before they searched the master’s bedroom.
Appellant Lee went to the room of appellant Zhen Hua and when she returned to the master’s
bedroom, she saw shabu on the bed.47 The policemen took her ring, watch and the ₱600,000 owned
by Lao which had earlier been placed in the cabinet, her papers and documents, and those of Lao’s
as well. She had never seen any shabu in the room before the incident. Thereafter, she and
appellant Zhen Hua were brought to the PARAC headquarters where they were detained. Chuang,
the cantonese interpreter, informed her that shabu had been found in the condominium unit and that
the policemen were demanding ₱5,000,000 for her release. She was also told that if she did not pay
the amount, she would be charged with drug trafficking, and that the leader of the group who
arrested her would be promoted. However, she told Chuang that she had no money. Since she
could not pay the amount, she was boarded on a PARAC owner-type jeep and returned to the
condominium unit where the policemen took all the household appliances, such as the television,
compact discs, washing machine, including laundry detergent. Only the sofa and the bed were not
taken. About ten (10) days later, the appellants secured the services of counsel.

Antonio Pangan testified that he and the policemen knocked on the door to the condominium unit but
that no one responded. He shouted, "Sir Henry," referring to Lao, but there was no response from
inside the condominium. After about three (3) to five (5) minutes, a policeman kicked the door open
and they entered the house. They went to the second floor and saw the appellants sleeping.

Pangan testified that he did not see any shabu that was seized by the policemen. He learned that
shabu had been found and taken from the condominium unit only when he saw someone holding up
the substance on television during the daily news program TV Patrol.48

Appellant Zhen Hua also denied the charge. He corroborated the testimony of appellant Lee that
upon her invitation, he arrived in the Philippines on a tourist visa on October 22, 1996. He claimed
that he did not see Anciro, Jr. in the condominium unit when policemen arrived and searched the
house. He testified that aside from the PARAC policemen, he was also investigated by policemen
from Taiwan.
After trial, the court rendered judgment on January 10, 1999, convicting both appellants of the crime
charged. The decretal portion of the decision reads:

WHEREFORE, PREMISES CONSIDERED, finding accused Jogy Lee and Huang Zhen Hua
GUILTY beyond reasonable doubt for violation of Sec. 16, Art. III, RA 6425, as amended by
RA 7659, and considering the absence of any aggravating circumstances, this Court hereby
sentences both accused to suffer the penalty of Reclusion Perpetua and to pay a fine of
₱500,000.00 each. The properties seized in accordance with the search warrants issued
relative to this case are hereby ordered confiscated in favor of the government and the Clerk
of Court of this Court is directed to turn over to the Dangerous Drugs Board, the drugs and
paraphernalia subject hereof for proper disposition.

The Clerk of Court is also directed to prepare the Mittimus for the immediate transfer of both
accused Jogy Lee and Huang Zhen Hua from the Parañaque City Jail to the Bureau of
Correccions (sic) in Muntinlupa City.

SO ORDERED.49

The Present Appeal

On appeal to this Court, appellant Zhen Hua, asserts that:

First. The evidence for the prosecution, as a whole, is so far as self-contradictory, inherently
improbable and palpably false to be accepted as a faithful reflection of the true facts of the
case;

Second. Appellant Huang Zhen Hua’s conviction was based merely on the trial court’s
conclusion that he "is not an epitome of first class tourist and that he appeared nonchalant
throughout the proceedings;"

Third. In convicting said appellant, the court below completely disregarded the glaring facts
and admissions of the prosecution’s principal witnesses that no regulated drug was ever
found in his possession;

Fourth. The trial court, likewise, ignored the fact that the appellant’s arrest was illegal and in
violation of his constitutional and basic rights against arrest without probable cause as
determined by a Judge and that his arraignment did not constitute a waiver of such right;

Fifth. The trial court failed to consider the fact that the presumption of regularity of
performance of the police officers who took part in the search had been overcome by
prosecution's own evidence, thereby wrongly giving such presumption substance over and
above the constitutional presumption of innocence of the appellant.50

For her part, appellant Lee contends that:

1.01 THE ALLEGED TWO KILOS OF SHABU FOUND INSIDE ONE OF THE ROOMS IN
THE TOWNHOUSE RENTED BY HENRY LAU WERE MERELY PLANTED BY PARAC
OPERATIVES;

1.02 THE IMPLEMENTATION OF THE SEARCH WARRANT WAS HIGHLY IRREGULAR,

DUBIOUS AND UNREASONABLE AS THE SEARCH WARRANT DID NOT CONTAIN ANY
 PARTICULAR DESCRIPTION OF THE ROOM TO BE SEARCHED, NOR WAS THERE
ANY INTERPRETER TO ASSIST AND GUIDE JOGY LEE, WHO NEITHER KNEW NOR
UNDERSTAND THE ENGLISH LANGUAGE, DURING THE SEARCH AND EVEN DURING
THE TRIAL;

2. THE LOWER COURT ERRED IN NOT ACQUITTING ACCUSED JOGY LEE UPON THE
GROUND THAT HER GUILT WAS NOT ESTABLISHED BY PROOF BEYOND
REASONABLE DOUBT.51

For its part, the Office of the Solicitor General (OSG) posits that appellant Zhen Hua should be
acquitted on the ground of reasonable doubt, but that the conviction of appellant Lee should be
affirmed.

The Court’s Ruling

We shall delve into and resolve the assigned errors of the appellants Huang Zhen Hua and Jogy Lee
sequentially.

On Appellant Zhen Hua

The OSG contends that the prosecution failed to muster the requisite quantum of evidence to prove
appellant Zhen Hua’s guilt beyond reasonable doubt for the crime charged, thus:

Huang Zhen Hua denies having anything to do with the bags of "shabu" found in the townhouse unit
of Henry Lau. He claims that he arrived in the Philippines as a tourist on October 22, 1996, upon the
invitation of Jogy Lee. Allegedly, at the time of his arrest, he had been in the Philippines for barely
four days. He claims that he was just temporarily billeted as a guest at the townhouse where Jogy
Lee was staying. And that he had no control whatsoever over said townhouse. He puts emphasis on
the fact that the search of his room turned out to be "negative" and that the raiding team failed to
seize or confiscate any prohibited or regulated drug in his person or possession. He, therefore, prays
for his acquittal.

The People submits that Huang Zhen Hua is entitled to acquittal. The prosecution’s evidence fails to
meet the quantum of evidence required to overcome the constitutional presumption of innocence;
thus, regardless of the supposed weakness of his defense, and his innocence may be doubted, he is
nonetheless entitled to an acquittal (Natividad v. Court of Appeals, 98 SCRA 335 (1980), cited in
People v. Fronda, G.R. No. 130602, March 15, 2000). The constitutional presumption of innocence
guaranteed to every individual is of primary importance, and the conviction of the accused must rest
not on the weakness of the defense but on the strength of the evidence for the prosecution.

In the instant case, as pointed out by appellant Huang Zhen Hua, the trial court erred when it did not
give much weight to the admission made by the prosecution witnesses that no regulated drug was
found in his person. No regulated drug was also found inside his room or in his other belongings
such as suitcases, etc. Thus, he had no actual or constructive possession of the confiscated
"shabu."

Moreover, it is not disputed that Huang Zhen Hua had only been in the country for barely four (4)
days at the time when he was arrested. The prosecution was unable to show that in these four (4)
days Huang Zhen Hua committed acts which showed that he was in cahoots with the drug syndicate
Henry Lau and Peter Chan. It was not even shown that he was together with Henry Lau and Peter
Chan on any occasion. As for Huang Zhen Hua, therefore, there is no direct evidence of any
culpability. Nor is there any circumstantial evidence from which any culpability may be inferred.52
We agree with the OSG. In a case of recent vintage, this Court, in People vs. Tira,53 ruminated and
expostulated on the juridical concept of "possession" under Section 16, Article III of Rep. Act No.
6425, as amended, and the evidence necessary to prove the said crime, thus:

The essential elements of the crime of possession of regulated drugs are the following: (a)
the accused is found in possession of a regulated drug; (b) the person is not authorized by
law or by duly constituted authorities; and, (c) the accused has knowledge that the said drug
is a regulated drug. This crime is mala prohibita, and, as such, criminal intent is not an
essential element. However, the prosecution must prove that the accused had the intent to
possess (animus posidende) the drugs. Possession, under the law, includes not only actual
possession, but also constructive possession. Actual possession exists when the drug is in
the immediate physical possession or control of the accused. On the other hand,
constructive possession exits when the drug is under the dominion and control of the
accused or when he has the right to exercise dominion and control over the place where it is
found. Exclusive possession or control is not necessary. The accused cannot avoid
conviction if his right to exercise control and dominion over the place where the contraband
is located, is shared with another.

Thus, conviction need not be predicated upon exclusive possession, and a showing of non-
exclusive possession would not exonerate the accused. Such fact of possession may be
proved by direct or circumstantial evidence and any reasonable inference drawn therefrom.
However, the prosecution must prove that the accused had knowledge of the existence and
presence of the drug in the place under his control and dominion and the character of the
drug. Since knowledge by the accused of the existence and character of the drugs in the
place where he exercises dominion and control is an internal act, the same may be
presumed from the fact that the dangerous drug is in the house or place over which the
accused has control or dominion, or within such premises in the absence of any satisfactory
explanation.54

In this case, the prosecution failed to prove that the appellant, at any time, had actual or constructive
possession of the regulated drug found in the master’s bedroom where appellant Lee was sleeping;
or that the appellant had accessed the said room at any given time; or that he had knowledge of the
existence of shabu in appellant Lee’s bedroom. Appellant Zhen Hua had arrived in the Philippines
upon the invitation of appellant Lee only on October 22, 1996 or barely four (4) days before the
arrival of the policemen and the search conducted in the condominium unit leased by Henry Lao. He
was a mere visitor of appellant Lee. There is no evidence that appellant Zhen Hua was aware of the
alleged illegal drug activities and/or transactions of Henry Lao, Peter Chan and appellant Lee. The
policemen did not find any regulated drug in the room where appellant Zhen Hua was sleeping when
they made their search.

The evidence of the prosecution against appellant Zhen Hua falls short of the requisite quantum of
evidence to prove conspiracy between him, appellant Lee and Chan or Lao.

There is conspiracy when two or more persons agree to commit a crime and decide to commit
it.55 Conspiracy cannot be presumed.56 Conspiracy must be proved beyond reasonable doubt like the
crime subject of the conspiracy.57 Conspiracy may be proved by direct evidence or by proof of the
overt acts of the accused, before, during and after the commission of the crime charged indicative of
a common design.58

The bare fact that on two or three occasions after the arrival of appellant Zhen Hua from China, and
before the search conducted in Lao’s condominium unit, appellant Zhen Hua had been seen with
Lao, Chan and appellant Lee. Having dinner or lunch at a restaurant does not constitute sufficient
proof that he had conspired with them or with any of them to possess the subject-regulated drug.
Mere association with the principals by direct participation or mere knowledge of conspiracy, without
more, does not suffice.59 Anciro, Jr. even admitted that during his surveillance, he could have
mistaken appellant Zhen Hua for another group of Chinese persons who were also being
watched.60 Appellant Zhen Hua should, thus, be acquitted.

On Appellant Lee

Appellant Lee avers that certain irregularities were attendant in the issuance and implementation of
Search Warrant No. 96-802, as follows: (a) the policemen who implemented the search warrant
failed in their duty to show to her the said warrant, inform her of their authority and explain their
presence in the condominium unit; (b) the policemen gained entry into the condominium unit by force
while she was sleeping; and (c) articles and personal effects owned by her and Lao were taken and
confiscated by the policemen, although not specified in the search warrant.

The appellant concludes that the articles procured by the policemen on the occasion of the search of
the condominium unit are inadmissible in evidence.

Appellant Lee, likewise, contends that she was a victim of a frame-up because the policemen
planted the regulated drug on her bed even before they searched the bedroom. She went to the
room of appellant Zhen Hua to find out if he was already awake, and when she returned to the
bedroom, she noticed shabu on her bed. She avers that the sole testimony of Anciro, Jr., that he
found the regulated drug in the master’s bedroom, is incredible because he was not with the
policemen who barged into the bedroom. She notes that even Pangan, the caretaker of the Villa,
testified that he did not see any illegal drug confiscated by the policemen.

According to appellant Lee, the trial court erred in convicting her of the crime charged, considering
that Lao and Chan were the suspects identified in the search warrants, not her. She avers that she
had no knowledge of the alleged illegal drug transactions of her lover Lao. She contends that there
was no probable cause for her arrest as her mere presence in the condominium unit does not render
her liable for the shabu found in the master’s bedroom of the condominium unit leased by Lao. She
further avers that the testimonies of the witnesses for the prosecution are inconsistent; hence,
barren of probative weight. The appellant also asserts that she was deprived of her right to due
process when the trial court conducted a trial without a Chinese interpreter to assist her.

The OSG, for its part, avers that the police officers are presumed to have performed their duties.
Based on the testimony of Anciro, Jr., appellant Lee was shown the search warrant, through the
window, and the policemen identified themselves through their uniforms. The security guards of the
condominium also explained the search warrant to the appellant. Although she was, at first, reluctant
to open the door, appellant Lee later voluntarily opened the door and allowed them entry into the
unit. There was no evidence of forcible entry into the unit and no breakage of any door. The OSG
further avers that the appellant had been in the country for quite sometime already and could not
have gotten around without understanding English. In fact, the OSG argues that when Anciro, Jr.
told the appellant to get some of her clothes since she would be brought to the police headquarters
in Quezon City, she did as she was told and took her clothes from the cabinet where the shabu were
found by the policemen.

The OSG further points out that Pangan, the chief of security of the subdivision who was a witness
for appellant Lee, even testified that the search was orderly. The OSG contends that there was
probable cause for the appellant’s arrest because an informant had tipped off the arresting officers
that the appellant was a member of a syndicate dealing with illegal drugs, and that she handled the
accounts of Lao and Chan. The appellant was not a victim of frame-up because she was present
when the policemen searched the master’s bedroom where she was sleeping and where she kept
her clothes, and witnessed the discovery of the regulated drugs and paraphernalia.

We agree with the contention of the appellant that the constitutional proscription against
unreasonable search and seizure applies to Filipino citizens, as well as to aliens temporarily residing
in the country. The rule against unreasonable search and seizure forbids every search that is
unreasonable; it protects all those suspected or known to be offenders, as well as the innocent. The
guarantee is as important and imperative as the guarantee of the other fundamental rights of the
citizens.61 All owes the duty for its effective enforcement lest there shall be an impairment of the right
for the purpose for which it was adopted.62

Section 7, Rule 126 of the Revised Rules of Criminal Procedure provides:

SEC. 7. Right to break door or window to effect search. – The officer, if refused admittance
to the place of directed search after giving notice of his purpose and authority, may break
open any outer or inner door or window of a house or any part of a house or anything therein
to execute the warrant or liberate himself or any person lawfully aiding him when unlawfully
detained therein.

The police officers were obliged to give the appellant notice, show to her their authority, and demand
that they be allowed entry. They may only break open any outer or inner door or window of a house
to execute the search warrant if, after such notice and demand, such officers are refused entry to the
place of directed search. This is known as the "knock and announce" principle which is embodied in
Anglo-American Law. The method of entry of an officer into a dwelling and the presence or absence
of such notice are as important considerations in assessing whether subsequent entry to search
and/or arrest is constitutionally reasonable.63 In Gouled v. The United States,64 it was held that a
lawful entry is the indispensable predicate of a reasonable search. A search would violate the
Constitution if the entry were illegal, whether accomplished by force, by illegal threat or mere show
of force.

The principle may be traced to a statute in England way back in 1275 providing that "if a person
takes the beasts of another and causes them to be driven into a castle or fortress, if the sheriff
makes a solemn demand for the deliverance of the beasts, and if the person did not cause the
beasts to be delivered incontinent, the king shall cause the said castle or fortress to be beaten down
without recovery." Common law courts appended an important qualification:

But before he breaks it, he ought to signify the cause of his coming, and to make request to
open doors …, for the law without a default in the owner abhors the destruction or breaking
of any house (which is for the habitation and safety of man) by which great damage and
inconvenience might ensue to the party, when no default is in him; for perhaps he did not
know of the process, of which, if he had noticed, it is to be presumed that he would obey
it…65

Blackstone simply stated the principle that the sheriff may justify breaking open doors if the
possession be not quietly delivered.66 The principle was woven quickly into the fabric of early
American law and in the Fourth Amendment in the United States Federal Constitution. It is an
element of the reasonableness inquiry under the Fourth Amendment as held in Wilson v. Arkansas.67

Generally, officers implementing a search warrant must announce their presence, identify
themselves to the accused and to the persons who rightfully have possession of the premises to be
searched, and show to them the search warrant to be implemented by them and explain to them
said warrant in a language or dialect known to and understood by them. The requirement is not a
mere procedural formality but is of the essence of the substantial provision which safeguards
individual liberty.68 No precise form of words is required. It is sufficient that the accused has notice of
the officers, their authority and the purpose of the search and the object to be seized. It must be
emphasized that the notice requirement is designed not only for the protection of the liberty of the
person to be searched or of his property but also the safety and well-being of the officers serving
and implementing the search warrant. Unless the person to whom the warrant is addressed and
whose property is to be searched is notified of the search warrant and apprised of the authority of
the person serving the warrant, he may consider the unannounced intrusion into the premises as an
unlawful aggression on his property which he will be justified in resisting, and in the process, may
cause injury even to the life of the officer implementing the warrant for which he would not be
criminally liable. Also, there is a very real possibility that the police serving and implementing the
search warrant may be misinformed as to the name or address of the suspect, or to other material
affirmations. Innocent citizens should not suffer the shock, fright, shame or embarrassment
attendant upon an unannounced intrusion.69 Indeed, a lawful entry is the indispensable predicate of a
reasonable search. A search would violate the constitutional guarantee against unreasonable search
and seizure if the entry were illegal, whether accomplished by force, or by threat or show of force or
obtained by stealth, or coercion.70

Unannounced intrusion into the premises is permissible when (a) a party whose premises or is
entitled to the possession thereof refuses, upon demand, to open it; (b) when such person in the
premises already knew of the identity of the officers and of their authority and persons; (c) when the
officers are justified in the honest belief that there is an imminent peril to life or limb; and (d) when
those in the premises, aware of the presence of someone outside (because, for example, there has
been a knock at the door), are then engaged in activity which justifies the officers to believe that an
escape or the destruction of evidence is being attempted. Suspects have no constitutional right to
destroy evidence or dispose of evidence.71 However, the exceptions above are not exclusive or
conclusive. At times, without the benefit of hindsight and ordinarily on the spur of the moment, the
officer must decide whether or not to make an unannounced intrusion into the premises. Although a
search and seizure of a dwelling might be constitutionally defective, if the police officers’ entry was
without prior announcement, law enforcement interest may also establish the reasonableness of an
unannounced entry.72 Indeed, there is no formula for the determination of reasonableness. Each
case is to be decided on its own facts and circumstances.73 In determining the lawfulness of an
unallowed entry and the existence of probable cause, the courts are concerned only with what the
officers had reason to believe and the time of the entry.74 In Richards v. Wisconsin,75 it was held that:

[1] In order to justify a "no-knock" entry, the police must have a reasonable suspicion that
knocking and announcing their presence, under the particular circumstances, would be
dangerous or futile, or that it would inhibit the effective investigation of the crime by, for
example, allowing the destruction of evidence. This standard—as opposed to a probable-
cause requirement—strikes the appropriate balance between the legitimate law enforcement
concerns at issue in the execution of search warrants and the individual privacy interest
affected by no-knock entries.76

As articulated in Benefield v. State of Florida,77 what constitutes breaking includes the lifting of a
latch, turning a door knob, unlocking a chain or hasp, removing a prop to or pushing open a closed
door of entrance to the house, even a closed screen door.78 However, entry obtained through the
use of deception, accomplished without force is not a "breaking" requiring officers to first announce
their authority and purpose because the reasons behind the rule are satisfied – there was no real
likelihood of violence, no unwarranted intrusion or privacy and no damage to the residence of the
accused.79

As to how long an officer implementing a search warrant must wait before breaking open any door
cannot be distilled into a constitutional stopwatch. Each case has to be decided on a case-to-case
basis requiring an examination of all the circumstances.80 The proper trigger point in determining,
under the "knock and announce" rule, whether the police waited long enough before entering the
residence to execute a warrant, is when those inside should have been alerted that the police
wanted entry to execute a warrant.81

In this case, we rule that the policemen complied with Section 7, Rule 126 of the Revised Rules of
Criminal Procedure before entering the condominium unit. Appellant Lee admitted, when she
testified, that the police officers were accompanied by Chuang, a Cantonese interpreter, who
informed her that his companions were police officers and had a search warrant for the premises,
and also explained to her that the officers were going to search the condominium unit.82 The
appellant was sufficiently aware of the authority of the policemen, who wore PARAC uniforms, to
conduct the search and their purpose. Moreover, Anciro, Jr. told the appellant, in English, to bring
some clothes with her as she was to be brought to the police headquarters. Without such request
being interpreted to the appellant, the latter did as she was directed and took some clothes from the
cabinet atop the headboard.83

The evidence on record shows that the police officers knocked on the outer door before entering the
condominium unit, and after a while, the appellant opened the door and allowed the policemen and
Pangan to enter. Anciro, Jr. testified, thus:

Q Do you still recall Mr. Witness the identities of the security guards who helped you or
assisted you in implementing said search warrants at Grand Villa Subdivision?

A The OIC of the Home Owners’ Association, Antonio Pangan, and the OIC of the Security
Agency and two (2) other security guards.

Q Do you recall the names of those persons you mentioned Mr. Witness?

A I can hardly recall their names.

Q After having been assisted or coordinated with said security officers and the OIC of the
Home Owners’ Association, what did you do next?

A We told them that if we could ask them if they have a duplicate key and also knock and
introduce ourselves, knock on the said condominium.

Q Did they do that, the request?

A Yes, Sir.

Q Meaning to say, you arrived at #19 Atlantic Drive, Pacific Grand Villa?

A Yes, Sir.

Q While you were already at the door of that targeted house to implement said search
warrants, what happened next, if any? What did you do after that?

A We knocked on the door and tried to find out if there was somebody there because the
Home Owners’ Association doesn’t have any key for the door. We asked them to knock also
because they are the ones who have access with the tenants.
 Q And after knocking, what happened next?

A There were around 5 minutes, no one was trying to open the door. By that time, we
thought they were still asleep.

Q And then after that what did you do, if any?

A We asked Mr. Pangan to knock and introduce himself and another security guard to try to
knock on the kitchen which is on the back door.

Q And then after that?

A And then after that, it was a female person who showed up to (sic) the window of the
kitchen and asked who we are in a sign language.

Q And this female person who showed up to (sic) the window … I withdraw. Were you able
to have a good look on that female person who showed herself thru the window?

A Yes, Sir.

Q And who is this person Mr. Witness?

A She was identified as Jogy Lee, Sir.84

The appellant failed to prove that the policemen broke open the door to gain entry into the
condominium unit. She could have asked the court for an ocular inspection to show the door which
was allegedly broken into by the policemen, or at least adduce in evidence pictures showing the said
breakage. The appellant failed to do so. The testimony of the appellant is even belied by Pangan,
who was a witness for the appellant, who certified, along with three other security guards, that
nothing was destroyed and that the search was conducted in a peaceful and orderly manner.85

We are not impervious of the testimony of Pangan that the policemen kicked the outer door to gain
entry into the condominium unit, which testimony is seemingly in derogation of his certification.
However, Pangan admitted that the policemen did so only after knocking on the door for three (3) to
five (5) minutes and after he had called Lao in a loud voice and received no response from the
appellants:

Q Did you come to know the persons wherein your presence was being required according
to your security guards?

A According to my security guards, they introduced themselves as police operatives.

Q Did you comply with the invitation of these police authorities?

A Yes, they called me and according to them, they will search Unit 19, that is what they told
me.

Q Can you please tell us what time did the police operatives conduct the search?
A I cannot recall anymore because the incident happened in 1996. I don’t know what time
was that.

Q When they conducted the search, were you there?

A I was there because that unit cannot be opened if the caretaker is not present.

Q Are you trying to say that you were the one who opened the door of that unit occupied by
Henry Kau Chung?

A They kicked the door and when nobody opened the door, they pushed the door and the
door was opened.

Q They forcibly opened the door when nobody opened it?

A Kaya naman po ginawa ‘yon dahil nandoon naman po ang caretaker, wala naman pong
masamang mangyayari dahil nandoon naman po ang namamahala.

Q From the time you knocked at the door of this unit up to the time that the police operatives
forcibly break open the door, how many minutes had elapsed?

A Matagal din po silang kumakatok sa pintuan. I said, "Mr. Henry, pakibuksan n’yo ang pinto,
would you mind to open the door, kasi merong mga police officers na gustong ma-search
itong unit mo. Then, when nobody was answering, they forcibly opened the door.

Q Was there any other occupant other than Henry Kau Chung in that unit at that time?

A At the second floor, they saw this Jogy Lee and her male companion whom I do not know.

Q But during the time that you were trying to seek entry to the door, there was no one who
responded, is that correct?

A Pardon, Sir?

Q At the time that you were trying to knock at the door, there was no one who responded to
your knocking at the door?

A Nobody was answering, Sir.

Q And that compelled the police operatives to open the door forcibly?

A Yes, Sir.86

COURT:

From the first time you knocked at the door, how long a time lapsed before the police officer
broke open the door?
 A Matagal din po.

Q For how long?

A Maybe for about three to five minutes.

Q When nobody was answering, they forced open the door?

A Yes, Your Honor.

COURT:

Continue.87

The appellant failed to prove, with clear and convincing evidence, her contention that Anciro, Jr.
placed the shabu on her bed before he continued his search in the bedroom, and that she was a
victim of frame-up by the policemen. She relied on her testimony and those of Pangan and Ferias
that they did not see Anciro, Jr. discover and take custody of the shabu in the cabinet.

The appellant’s defense of frame-up is nothing new. It is a common and standard line of defense in
most prosecutions for violation of the Dangerous Drugs Law. While such defense cannot and should
not always be considered as contrived, nonetheless, it is generally rejected for it can easily be
concocted but is difficult to prove. Police officers are, after all, presumed to have acted regularly in
the performance of their official functions, in the absence of clear and convincing proof to the
contrary, or that they are motivated by ill-will.88

It is true, as testified by Pangan and Ferias that, they did not see Anciro, Jr. discover and take
custody of the shabu subject of this case. However, as explained by Pangan, he remained in the
ground floor of the condominium unit while Anciro, Jr., Castillo and Margallo searched the bedroom
of appellant Lee and her lover Lao, and Ferias proceeded to the room occupied by appellant Zhen
Hua where he conducted his search. Thus, Pangan testified:

Q When the master’s bedroom was searched where Jogy Lee was then, according to you,
sleeping, did you accompany the PARAC members?

A No, Sir, because I was talking to a member of the PARAC downstairs.

Q What about the members of the security force?

A They were outside, Sir.

Q During the search made on the master’s bedroom?

A Yes, Sir.

Q How about when the search was made in the room occupied by Huang Zhen Hua, were
you present then?

A No, Sir, I was still downstairs.

 Q How about the other guards?

A They were also outside.89

For his part, Ferias declared:

Q In other words, you did not go inside the biggest room?

A No, Sir.

Q You proceeded to another room where co-accused Huang Zhen Hua was then sleeping?

A Yes, Sir.

Q What happened next?

A We woke up Huang Zhen Hua and we introduced ourselves to him as police officers.

Q What was the reaction of Huang Zhenhua?

A He was surprised.90

Q In other words, you did not go inside the biggest room?

A No, Sir.

Q You proceeded to another room where co-accused Huang Zhen Hua was then sleeping?

A Yes, Sir.

Q What happened next?

A We woke up Huang Zhen Hua and we introduced ourselves to him as police officers.

Q What was the reaction of Huang Zhen Hua?

A He was surprised.91

Pangan testified that before the police officers conducted their search in the second floor of the
condominium unit, he did not see them bring in anything:

Q But you are very sure that before the police officers searched the unit, you did not see
them bringing anything with them, they were all empty-handed?

A I did not see, Sir.92

No less than Pangan himself, a witness for the appellants, and three of the security guards of the
subdivision, who accompanied the policemen in implementing the search warrants, certified that,
what was found inside the condominium unit and confiscated by the policemen were two plastic
bags which contained white crystalline powder substances suspected to be shabu.93

The appellant admitted that she saw shabu in her bedroom while the policemen were there. She
claimed that the policemen placed the plastic bag on the bed before they started the search and that
she noticed the shabu only after he returned from the room of appellant Zhen Hua to see if he was
already awake is hard to believe.

First. We find it incredible that the policemen placed the shabu on the appellant’s bed, in her full
view, for which the latter could be prosecuted for planting evidence and, if convicted, sentenced to
death under Section 19 of Rep. Act 7659:

SECTION 19. Section 24 of Republic Act No. 6425, as amended, known as the Dangerous
Act of 1972, is hereby amended to read as follows:

Sec. 24. Penalties for Government Officials and Employees and Officers and
Members of Police Agencies and the Armed Forces, ‘Planting’ of Evidence.— The
maximum penalties provided for [in] Section 3, 4(1), 5(1), 6, 7, 8, 9, 11, 12 and 13 of
Article II and Sections 14, 14-A, 15(1), 16 and 19 of Article III shall be imposed, if
those found guilty of any of the said offenses are government officials, employees or
officers, including members of police agencies and the armed forces.

Any such above government official, employee or officer who is found guilty of "planting" any
dangerous drugs punished in Sections 3, 4, 7, 8, 9 and 13 of Article II and Sections 14, 14-A,
15 and 16 of Article III of this Act in the person or in the immediate vicinity of another as
evidence to implicate the latter, shall suffer the same penalty as therein provided.

Second. The appellant failed to inform her counsel of the alleged planting of evidence by the
policemen; if she had done so, for sure, the said counsel would have prepared her affidavit and filed
the appropriate motion in court for the suppression of the things/articles seized by the policemen.

Third. The appellant failed to charge the policemen with planting of evidence before or after she was
charged of violation of Rep. Act No. 6425, as amended.

Fourth. The appellant cannot even identify and describe the policeman or policemen who allegedly
planted the evidence.

The fact is that, as gleaned from the affidavit of arrest signed by Anciro, Jr. and Ferias, the articles
and substances found and confiscated from the condominium unit of Lao and appellant Lee at
Atlantic Drive and at the Cityland condominium unit of Lao and Chan were itemized as follows:

a. TWO (2) Big Transparent Plastic Bags containing about one (1) kilo each of white
crystalline granules later tested to be Methamphetamine Hydrochloride or Shabu, a
regulated drug;

b. ONE (1) Transparent Plastic Baby Feeding Bottle containing undetermined quantity of
suspected Shabu;

c. ONE (1) Small Plastic Canister also containing undetermined amount of suspected Shabu
…
 d. Assorted Pieces of Shabu Paraphernalia consisting of Improvised Tooters used for sniffing
shabu, Improvised Burners used for burning Shabu, aluminum foils, etc.;

a. TWO (2) Kettles/Pots containing more or less 1 ½ kilos of Raw Shabu or

Methamphetamine Hydrochloride;

b. Two (2) Big Transparent Plastic Bags containing more or less Two (2) Kilos of Shabu;

c. Three (3) Plastic Basins, small, medium, large, used for containers of finished/cooked
Shabu;

c. Several pieces of Plastic Strainers used for draining out liquids from finished Shabu;

e. One (1) Plastic Container with liquid chemical of undetermined element;

f. Several pieces of Spoons and ladles with traces of raw Shabu used in stirring mixtures

g. One (1) Electric Cooking Stove w/one coil burner;

h. One (1) Unit Card Making Machine;

i. One (1) Unit Card Stamping Machine;

j. Several pieces of Credit Cards and Telephone Cards;94

Anciro, Jr. placed his initials on the plastic bags containing white crystalline powder which were
found and confiscated at Atlantic Drive and, in the company of Ferias, delivered the same to the
PNP Crime Laboratory for examination, per the request of Police Superintendent Janice P. de
Guzman, the chief of the PARAC.

We agree with the appellant that she was not one of the accused named in the search warrants.
However, such fact did not proscribe the policemen from arresting her and charging her of violation
of Rep. Act No. 6425, as amended. There was, in fine, probable cause for her warrantless arrest
independent of that found by Judge William Bayhon when he issued the search warrants against
Lao and Chan for search of the condominium units at Atlantic Drive and Cityland.

Probable cause exists for the warrantless detention and arrest of one at the premises being
searched when the facts and circumstances within their knowledge and of which they had reliable
and trustworthy information are sufficient to themselves warrant a reasonable belief of a cautious
person that an offense has been or is being committed.95 It has been held that:

Probable cause for the arrest of petitioner Diane Ker, while not present at the time the
officers entered the apartment to arrest her husband, was nevertheless present at the time of
her arrest. Upon their entry and announcement of their identity, the officers were met not
only by George Ker but also by Diane Ker, who was emerging from the kitchen. Officer
Berman immediately walked to the doorway from which she emerged and, without entering,
observed the brick-shaped package of marijuana in plain view. Even assuming that her
presence in a small room with the contraband in a prominent position on the kitchen sink
would not alone establish a reasonable ground for the officers’ belief that she was in joint
 possession with her husband, that fact was accompanied by the officers’ information that Ker
had been using his apartment as a base of operations for his narcotics activities. Therefore,
we cannot say that at the time of her arrest there were no sufficient grounds for a reasonable
belief that Diane Ker, as well as her husband, were committing the offense of possession of
marijuana in the presence of the officers.96

In Draper v. United States,97 it was held that informations from a reliable informant, corroborated by
the police officer’s observations as to the accuracy of the description of the accused, and of his
presence at a particular place, is sufficient to establish probable cause. In this case, the police
officers received reliable information and verified, after surveillance, that appellant Lee and Lao were
living together as husband and wife in the condominium unit and that appellant Lee handled the
accounting of the payments and proceeds of the illegal drug trafficking activities of Lao. Indeed, the
policemen found that the appellant occupied the bedroom and slept in the same bed used by Lao.
The appellant took her clothes from the same cabinet where the subject shabu and paraphernalia
were found by Anciro, Jr. The appellant had been living in the same condominium unit with Lao
since October 1, 1996 until her arrest on October 25, 1996. Along with Lao, the appellant thus had
joint control and possession of the bedroom, as well as of the articles, paraphernalia, and the shabu
found therein. Such facts and circumstances are sufficient on which to base a reasonable belief that
the appellant had joint possession of the regulated drugs found in the bedroom along with Lao, her
live-in partner, in line with our ruling in People v. Tira.98 For the purpose of prosecution for violation of
the Dangerous Drugs Law, possession can be constructive and need not be exclusive, but may be
joint.99

Admittedly, Anciro, Jr. seized and took custody of certain articles belonging to the appellant and Lao
which were not described in the search warrants. However, the seizure of articles not listed in a
search warrant does not render the seizure of the articles described and listed therein illegal; nor
does it render inadmissible in evidence such articles which were described in the warrant and seized
pursuant thereto. Moreover, it bears stressing that Anciro, Jr. saw the unlisted articles when he and
the other policemen implemented the search warrants. Such articles were in plain view of Anciro, Jr.
as he implemented the search warrants and was authorized to seize the said articles because of
their close connection to the crime charged. As held in Coolidge, Jr. v. New Hampshire:100

An example of the applicability of the ‘plain view’ doctrine is the situation in which the police
have a warrant to search a given area for specified objects, and in the course of the search
come across some other article of incriminating character. …

Where the initial intrusion that brings the police within plain view of such an article is
supported, not by a warrant, but by one of the recognized exceptions to the warrant
requirement, the seizure is also legitimate. Thus, the police may inadvertently come across
evidence while in ‘hot pursuit’ of a fleeing suspect. … And an object that comes into view
during a search incident to arrest that is appropriately limited in scope under existing law
may be seized without a warrant.… Finally, the ‘plain view’ doctrine has been applied where
a police officer is not searching for evidence against the accused, but nonetheless
inadvertently comes across an incriminating object. …101

It cannot be denied that the cards, passbook, passport and other documents and papers seen by the
policemen have an intimate nexus with the crime charged or, at the very least, incriminating. The
passport of the appellant would show when and how often she had been in and out of the country.
Her credit cards and bank book would indicate how much money she had amassed while in the
country and how she acquired or earned the same. The pictures and those of the other persons
shown therein are relevant to show her relationship to Lao and Chan.102
Contrary to the claim of the appellant, it is not true that the trial court failed to provide an interpreter
when she testified. The records show that a Cantonese interpreter attended the trial and interpreted
her testimony. The Rules of Court does not require the trial court to provide the appellant with an
interpreter throughout the trial. An interpreter is required only if the witness on the stand testifies in a
language other than in English or is a deaf- mute. The appellant may procure the services of an
interpreter at her own expense.

Contrary to the claim of appellant Lee, the prosecution adduced proof beyond reasonable doubt of
her guilt of the crime charged. She and Lao, her lover, had joint possession of the shabu which the
policemen found and confiscated from her bedroom.

IN LIGHT OF ALL THE FOREGOING, the appeal of appellant Huang Zhen Hua is GRANTED. The
Decision of the Regional Trial Court of Parañaque City, convicting him of the crime charged,
is REVERSED AND SET ASIDE. The said appellant is ACQUITTED of said charge. The Director of
the Bureau of Corrections is hereby directed to release the said appellant from detention unless he
is detained for another cause or charge, and to submit to the Court, within five (5) days from notice
hereof, a report of his compliance with the directive of the Court.

The appeal of appellant Jogy Lee is DENIED. The Decision dated January 10, 1999, of the Regional
Trial Court of Parañaque City, convicting her of violation of Section 16, Rep. Act No. 6425
is AFFIRMED. No costs.

SO ORDERED.

APRIL 3, 2018

G.R. No. 215305

MARCELO G. SALUDAY, Petitioner

vs
PEOPLE OF THE PHILIPPINES, Respondent

DECISION

CARPIO, J.:

The Case

Before the Court is a Petition for Review on Certiorari assailing the Decision dated 26 June
2014 1 and the Resolution dated, 15 October 20142 of the Court of Appeals in CA-G.R. CR No.
01099. The Court of Appeals affirmed with modification the Sentence dated 15 September
2011 3 rendered by the Regional Trial Court, Branch 11, Davao City in Criminal CaseNo. 65, 734-09,
finding petitioner Marcelo G. Saluday (petitioner) guilty beyond reasonable doubt of illegal
possession of high-powered firearm, ammunition, and explosive under Presidential Decree No.
1866,4 as amended (PD 1866).

The Antecedent Facts

On 5 May 2009, Bus No. 66 of Davao Metro Shuttle was flagged down by Task Force Davao of the
Philippine Army at a checkpoint near the Tefasco Wharf in Ilang, Davao City. SCAA Junbert M. Buco
(Buco), a member of the Task Force, requested all male passengers to disembark from the vehicle
while allowing the female passengers to remain inside. He then boarded the bus to check the
presence and intercept the entry of any contraband, illegal firearms or explosives, and suspicious
individuals.

SCAA Buco checked all the baggage and personal effects of the passengers, but a small, gray-black
pack bag on the seat at the rear of the bus caught his attention. He lifted the bag and found it too
heavy for its small size. SCAA Buco then looked at the male passengers lined outside and noticed
that a man in a white shirt (later identified as petitioner) kept peeping through the window towards
the direction of the bag. Afterwards, SCAA Buco asked who the owner of the bag was, to which the
bus conductor answered that petitioner and his brother were the ones seated at the back. SCAA
Buco then requested petitioner to board the bus and open the bag. Petitioner obliged and the bag
revealed the following contents: (1) an improvised .30 caliber carbine bearing serial number 64702;
(2) one magazine with three live ammunitions; (3) one cacao-type hand grenade; and (4) a ten-inch
hunting knife. SCAA Buco then asked petitioner to produce proof of his authority to carry firearms
and explosives. Unable to show any, petitioner was immediately arrested and informed of his rights
by SCAA Buco.

Petitioner was then brought for inquest before the Office of the City Prosecutor for Davao City. In its
Resolution dated 7 May 2009,5 the latter found probable cause to charge him with illegal possession
of high-powered firearm, ammunition, and explosive under PD l 866. The Information dated 8 May
2009 thus reads:

That on or about May 5, 2009, in the City of Davao, Philippines, and within the jurisdiction of this
Honorable Court, the above-mentioned accused, willfully, unlawfully and knowingly, with intent to
possess, had in his possession and under his custody an improvised high powered firearm caliber
.30 carbine bearing Serial No. 64702 (made in Spain) with one (1) magazine loaded with three (3)
live ammunitions and one (1) "'cacao" type hand grenade explosive, without first securing the
necessary license to possess the same.

CONTRARY TO LAW.6

When arraigned, petitioner pleaded not guilty.

During the trial, the prosecution presented two witnesses namely, NUP Daniel Tabura (Tabura), a
representative of the Firearms and Explosives Division of the Philippine National Police, and SCAA
Buco. NUP Tabura identified the Certification dated 5 November 20097 attesting that petitioner was
"not a licensed/registered holder of any kind and caliber per verification from records." Meanwhile,
SCAA Buco identified petitioner and the items seized from the bag, and testified on the details of the
routine inspection leading to the immediate arrest of petitioner. On cross-examination, SCAA Buco
further elaborated on the search conducted:

Atty. Mamburam

Q And that check point, which was conducted along llang [R)oad,

Davao City, was by virtue of a memorandum?

A Yes, Your Honor.

 xxxx

Q Now, you said that at around 5:00 of said date, you were able to intercept a Metro Shuttle
passenger bus and you requested all passengers to alight?

A Yes.

Q passengers were left inside?

A Yes, Your Honor.

Q And, after all passengers were able to alight, you checked all cargoes of the passengers in the
bus?

A Yes.

xxxx

Q And, you testified that one of those things inside the bus was a black gray colored pack bag which
was placed at the back portion of the bus?

A Yes.

Q You said that the hag was heavy?

A Yes.

Q And you picked up or carried also the other belongings or cargo[e]s inside the bus and that was
the only thing or item inside the bus which was heavy. Is that correct?

A There were many bags and they were heavy. When l asked who is the owner of the bag because
it was heavy but the bag was small. when I asked, he said the content of the bag was a cellphone.
But 1 noticed that it was heavy.

xxxx

Q And you said that somebody admitted ownership of the bag. Is that correct?

A Yes.

Q Who admitted ownership of the bag?

A (WITNESS POINTS TO THE ACCUSED)

Q Now, you said that while you are looking at the bag, you noticed that one male passenger you
pointed as the accused kept looking at you'?

A Yes.
Q And, aside from the accused, all the other male passengers were not looking at you?

A The other passengers were on the ground but he was in front of [the] window looking towards his
bag.

xxxx

Q And the accused admitted that he owned the bag, you requested him to open the bag'?

A Not yet. I let him board the bus and asked him if he can open it.

Q And, when he opened it?

A I saw the handle of the firearm. 8 (Emphasis supplied)

On the other hand, the defense presented petitioner as sole witness. On direct examination,
petitioner denied ownership of the bag. However, he also admitted to answering SCAA Buco when
asked about its contents and allowing SCAA Buco to open it after the latter sought for his
permission:

ATTY. MAMBURAM

Q x xx After the conductor of the bus told the member of the task force that you and your brother
were seated at the back of the bus. can you please tell us what happened next'?

A The member of the task force asked who is the owner of the bag and what were the contents of
the bag.

Q To whom did the member of the task force address that question?

A To me because I was pointed to by the conductor.

Q And what was your reply to the question of the member of the task force?

A I told him it was only a cellphone.

Q By the way, Mr. Witness, who owned that bag?

A My elder brother.

Q And why did you make a reply to the question of the member of the task force when, in fact, you
were not the owner of the bag?

A Because I was pointed to by the conductor that it was me and my brother who were seated at the
back.

xxxx

Q Now, after you told the member of the task force that probably the content of the bag was
cellphone, what happened next?
A He asked if he can open it.

Q And what was your reply?

A I told him yes, just open it.

xx xx

Q Now, you said that the owner of the bag and the one who carried that bag was your brother, what
is the name of your brother?

A Roger Saluday.

Q Where is your brother Roger now?

A Roger is already dead. He died in September 2009.9 (Emphasis supplied)

On cross-examination, petitioner clarified that only he was pointed at by the conductor when the
latter was asked who owned the bag. Petitioner also admitted that he never disclosed he was with
his brother when he boarded the bus:

PROS. VELASCO

Q You said that you panicked because they pulled you but as a way of saving yourself considering
you don't own the bag> did you not volunteer to inform them that [the] bag was owned by your
brother?

A I told them I have a companion but I did not tell them that it was my brother because I was also
afraid of my brother.

Q So, in short, Mr. Witness, you did not actually inform them that you had a brother at that
time when you were boarding that bus, correct?

A No, sir, I did not.

xxxx

Q So, you were answering all questions by saying it is not your bag but you confirm now that it was
the conductor of that bus who pointed you as the owner of the bag, correct?

A Yes, sir, the conductor pointed at me as the one who [sic] seated at the back. 10 (Emphasis
supplied)

The defense subsequently rested its case and the prosecution waived the right to present rebuttal
evidence. Upon order from the trial court, the parties submitted their respective memoranda.

The Decision of the Trial Court

Finding the denials of petitioner as self-serving and weak, the trial court declared him to be in actual
or constructive possession of firearm and explosive without authority or license. Consequently, in the
dispositive portion of the Sentence dated 15 September 2011, petitioner was adjudged guilty beyond
reasonable doubt of illegal possession of firearm, ammunition, and explosive under PD 1866:

WHEREFORE, in view of all the foregoing, judgment is hereby rendered finding Marcelo Gigbalen
Saluday GUILTY of illegal possession of high powered firearm, ammunition and explosive. For the
offense of illegal possession of high powered firearm and ammunition, he is hereby sentenced to
suffer an imprisonment of prision mayor in its minimum period. He is likewise ordered to pay a fine of
₱30,000.00. For the offense of illegal possession of explosive, he is hereby sentenced to suffer an
imprisonment of prision mayor in its maximum period to reclusion temporal. He is likewise ordered to
pay a fine of ₱50,000.00.

xxxx

SO ORDERED. 11

On 12 October 2011, petitioner timely filed his Notice of Appeal. 12

The Decision of the Court of Appeals

On appeal, petitioner challenged his conviction raising as grounds the alleged misappreciation of
evidence by the trial court and the supposed illegality of the search. 13 On the other hand, the Office
of the Solicitor General (OSG) argued that the warrantless search was valid being a consented
search, and that the factual findings of the trial court can no longer be disturbed. 14

In its Decision dated 26 June 2014, the Court of Appeals sustained the conviction of petitioner and
affirmed the ruling of the trial court with modification:

WHEREFORE. the instant appeal is DISMISSED. The Sentence dated September 15, 2011 of the
Regional Trial Court, 11th Judicial Region, Branch 11, Davao City, in Criminal Case No. 65, 734-09,
finding Marcelo Gigbalen Saluday guilty beyond reasonable doubt of illegal possession of high
powered firearm, ammunition and explosive is AFFIRMED with the MODIFICATION that:

(1) for the offense of illegal possession of high-powered firearm and ammunition, he is imposed an
indeterminate sentence of four (4) years, eight (8) months and twenty-one (21) days of
prision correccional maximum, as the minimum term, to seven (7) years and one (1) day of prision
mayor minimum, as the maximum term, in addition to the fine of Thirty thousand pesos
(₱30,000.00); and

(2) for the offense of illegal possession of explosive, he is sentenced to suffer the penalty
of reclusion perpetua without eligibility for parole.

SO ORDERED.15

Petitioner then filed a Motion for Reconsideration,16 to which the OSG filed its Comment. 17 In its
Resolution dated 15 October 2014, 18 the Court of Appeals denied petitioner's Motion for
Reconsideration for being pro forma. Hence, petitioner filed this Petition for Review
on Certiorari under Rule 45 of the Rules of Court.

The Issue
Petitioner assails the appreciation of evidence by the trial court and the Court of Appeals as to
warrant his conviction for the offenses charged.

The Ruling of this Court

We affirm.

Only questions of law may be raised in a petition for review on certiorari under Rule 45 of the Rules
of Court.19 As a result, the Court, on appeal, is not duty-bound to weigh and sift through the evidence
presented during trial. 20 Further, factual findings of the trial court, when affirmed by the Court of
Appeals, are accorded great respect, even finality. 21

Here, petitioner assails his conviction for illegal possession of high-powered firearm and ammunition
under PD 1866, and illegal possession of explosive under the same law. The elements of both
offenses are as follows: (1) existence of the firearm, ammunition or explosive; (2) ownership or
possession of the firearm, ammunition or explosive; and (3) lack of license to own or possess.22 As
regards the second and third elements, the Corn1: of Appeals concurred with the trial court that
petitioner was in actual or constructive possession of a high-powered firearm, ammunition, and
explosive without the requisite authority. The Decision dated 26 June 2014 reads in pertinent part:

In the present case, the prosecution proved the negative fact that appellant has no license or permit
to own or possess the firearm, ammunition and explosive by presenting NUP Daniel Tab[u]ra
(Tab[u]ra), a representative of the Firearms and Explosives Division (FED) of the PNP. He identified
the Certification issued by the Chief. Records Section. FED of the PNP, stating that appellant "is not
a licensed/registered holder of any kind and caliber per verification from records of this office."

Appellant, however, questions the competence of Tab[u]ra to testify on the veracity or truthfulness of
the Ce1tification. He claims that the officer who issued it should have been the one presented so he
would not be denied the right to confront and cross-examine the witnesses against him.

There is no merit to petitioner's claim. The following is pertinent:

xxxx

The Court on several occasions ruled that either the testimony of a representative of, or a
certification from, the Philippine National Police (PNP) Firearms and Explosive Office attesting that a
person is not a licensee of any firearm would suffice to prove beyond reasonable doubt the second
element of possession of illegal firearms. The prosecution more than complied when it presented
both.

xxxx

Also, appellant denies having physical or constructive possession of the firearms, ammunition and
explosive. However, his denial flies in the face of the following testimonies which he himself made:

xxxx

Appellant gave information, albeit misleading, on the contents of the bag. He even allowed the police
officer to open it. Based on his actuations, there could be no doubt that he owned the bag containing
the firearm, ammunition and explosive.
Shifting the blame to his dead brother is very easy for appellant to fabricate. Besides, the allegation
that his brother owned the bag is uncorroborated and self-serving. 23

As above-quoted, the presence of the second and third elements of illegal possession of firearm,
ammunition, and explosive raises questions of fact. Considering further that the Court of Appeals
merely echoed the factual findings of the trial court, the Court finds no reason to disturb them.

As regards the first element, petitioner corroborates the testimony of SCAA Buco on four important
points: one, that petitioner was a passenger of the bus flagged down on 5 May 2009 at a military
checkpoint in Ilang, Davao City; two, that SCAA Buco boarded and searched the bus; three, that the
bus conductor pointed at petitioner as the owner of a small, gray-black pack bag on the back seat of
the bus; and four, that the same bag contained a .30-caliber firearm with one magazine loaded who
three live ammunitions, and a hand grenade. Notably, petitioner does not challenge the chain of
custody over the seized items. Rather, he merely raises a pure question of law and argues that they
are inadmissible on the ground that the search conducted by Task Force Davao was illegal.

The Court disagrees.

Section 2, Article Ill of the Constitution, which was patterned after the Fourth Amendment to the
United States (U.S.) Constitution,24 reads:

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. (Emphasis supplied)

Indeed, the constitutional guarantee is not a blanket prohibition. Rather, it operates against
"unreasonable" searches and seizures only. 25

Conversely, when a search is "reasonable," Section 2, Article HI of the Constitution does not apply.
As to what qualifies as a reasonable search, the pronouncements of the U.S. Supreme Court, which
are doctrinal in this jurisdiction,26 may shed light on the matter.

In the seminal case of Katz v. United States, 27 the U.S. Supreme Court held that the electronic
surveillance of a phone conversation without a warrant violated the Fourth Amendment. According to
the U.S. Supreme Court, what the Fourth Amendment protects are people, not places such that what
a person knowingly exposes to the public, even in his or her own home or office, is not a subject of
Fourth Amendment protection in much the same way that what he or she seeks to preserve as
private, even in an area accessible to the public, may be constitutionally protected, thus:

Because of the misleading way the issues have been formulated, the parties have attached great
significance to the characterization of the telephone booth from which the petitioner placed his calls.
The petitioner has strenuously argued that the booth was a "constitutionally protected area." The
Government has maintained with equal vigor that it was not. But this effo1i to decide whether or not
a given "area,'' viewed in the abstract, is "constitutionally protected" deflects attention from the
problem presented by this case. For the Fourth Amendment protects people, not places. What a
person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. See Lewis v. United States, 385 U.S. 206, 210; United States v. Lee, 274
U.S. 559, 563. But what he seeks to preserve as private, even in an area accessible to the public,
may be constitutionally protected. See Rios v. United States, 364 U.S. 253; £:y; parte Jackson, 96
U.S. 727, 733.28 (Emphasis supplied)

Further, Justice John Harlan laid down in his concurring opinion the two-part test that would trigger
the application of the Fourth Amendment. First, a person exhibited an actual (subjective) expectation
of privacy.29 Second, the expectation is one that society is prepared to recognize as reasonable
(objective).30

The prohibition of unreasonable search and seizure ultimately stems from a person's right to privacy.
Hence, only when the State intrudes into a person's expectation of privacy, which society regards as
reasonable, is the Fourth Amendment triggered. Conversely, where a person does not have an
expectation of privacy or one's expectation of privacy is not reasonable to society, the alleged State
intrusion is not a "search" within the protection of the Fourth Amendment.

A survey of Philippine case law would reveal the same jurisprudential reasoning. To illustrate,
in People v. Johnson,31 the Court declared airport searches as outside the protection of the search
and seizure clause due to the lack of an expectation of privacy that society will regard as
reasonable:

Persons may lose the protection of the search and seizure clause by exposure of their persons or
property to the public in a manner reflecting a lack of subjective expectation of privacy, which
expectation society is prepared to recognize as reasonable. Such recognition is implicit in airport
security procedures. With increased concern over airplane hijacking and terrorism has come
increased security at the nation's airports. Passengers attempting to board an aircraft routinely pass
through metal detectors; their carry-on baggage as well as checked luggage are routinely subjected
to x-ray scans. Should these procedures suggest the presence of suspicious objects. physical
searches are conducted to determine what the objects are. There is little question that such
searches are reasonable, given their minimal intrusiveness, the gravity of the safety interests
involved, and the reduced privacy expectations associated with airline travel. Indeed, travelers are
often notified through airport public address systems, signs. and notices in their airline tickets that
they are subject to search and, if any prohibited materials or substances are found, such would be
subject to seizure. These announcements place passengers on notice that ordinary constitutional
protections against warrantless searches and seizures do not apply to routine airport
procedures.32 (Citations omitted)

Similarly, in Dela Cruz v. People,33 the Court described seaport searches as reasonable searches on
the ground that the safety of the traveling public overrides a person's right to privacy:

Routine baggage inspections conducted by port authorities, although done without search warrants,
are not unreasonable searches per se. Constitutional provisions protecting privacy should not be so
literally understood so as to deny reasonable safeguards to ensure the safety of the traveling public.

xxxx

Thus, with port security personnel's functions having the color of state-related functions and deemed
agents of government, Marti is inapplicable in the present case. Nevertheless, searches pursuant to
port security measures are not unreasonable per se. The security measures of x-ray scanning and
inspection in domestic ports are akin to routine security procedures in airports.

xxxx
Port authorities were acting within their duties and functions when [they] used x-ray scanning
machines for inspection of passengers' bags. When the results of the x-ray scan revealed the
existence of firearms in the bag, the port authorities had probable cause to conduct u search of
petitioner's bag. Notably, petitioner did not contest the results of the x-ray scan.34

In People v. Breis,35 the Court also justified a bus search owing to the reduced expectation of privacy
of the riding public:

Unlike the officer in Chan Fook, IO1 Mangili did not exceed his authority in the performance of his
duty. Prior to Breis' resistance, IO1 Mangili laid nary a finger on Breis or Yurnol. Neither did his
presence in the bus constitute an excess of authority. The bus is public transportation, and is open
to the public. The expectation of privacy in relation to the constitutional right against unreasonable
searches in a public bus is not the same as that in a person's dwelling. In fact, at that point in time,
only the bus was being searched, not Yumol, Breis, or their belongings, and the search of moving
vehicles has been upheld.36

Indeed, the reasonableness of a person's expectation of privacy must be determined on a case-to-

case basis since it depends on the factual circumstances surrounding the case.37 Other factors such
as customs, physical surroundings and practices of a particular activity may diminish this
expectation.38 In Fortune Express, Inc. v. Court of Appeals,39 a common carrier was held civilly liable
for the death of a passenger due to the hostile acts of armed men who boarded and subsequently
seized the bus. The Could held that "simple precautionary measures to protect the safety of
passengers, such as frisking passengers and inspecting their baggages, preferably with non-
intrusive gadgets such as metal detectors, before allowing them on board could have been
employed without violating the passenger's constitutional rights."40 In Costabella Corp. v. Court of
Appeals,41 a compulsory right of way was found improper for the failure of the owners of the
dominant estate to allege that the passageway they sought to be re-opened was at a point least
prejudicial to the owner of the servient estate. The Court thus explained, ''[c]onsidering that the
petitioner operates a hotel and beach resort in its property, it must undeniably maintain a strict
standard of security within its premises. Otherwise, the convenience, privacy, and safety of its clients
and patrons would be compromised."42 Similarly, shopping malls install metal detectors and body
scanners, and require bag inspection as a requisite for entry. Needless to say, any security lapse on
the part of the mall owner can compromise public safety.

Concededly, a bus, a hotel and beach resort, and a shopping mall are all private property whose
owners have every right to exclude anyone from entering. At the same time, however, because
these private premises are accessible to the public, the State, much like the owner, can impose non-
intrusive security measures and filter those going in. The only difference in the imposition of security
measures by an owner and the State is, the former emanates from the attributes of ownership under
Article 429 of the Civil Code, while the latter stems from the exercise of police power for the
promotion of public safety. Necessad1y, a person's expectation of privacy is diminished whenever
he or she enters private premises that arc accessible to the public.

In view of the foregoing, the bus inspection conducted by Task Force Davao at a military checkpoint
constitutes a reasonable search. Bus No. 66 of Davao Metro Shuttle was a vehicle of public
transportation where passengers have a reduced expectation of privacy. Further, SCAA Buco
merely lifted petitioner's bag. This visual and minimally intrusive inspection was even less than the
standard x-ray and physical inspections done at the airport and seaport terminals where passengers
may further be required to open their bags and luggages. Considering the reasonableness of the bus
search, Section 2, Article III of the Constitution finds no application, thereby precluding the necessity
for a warrant.
As regards the warrantless inspection of petitioner's bag, the OSG argues that petitioner consented
to the search) thereby making the seized items admissible in evidence.43 Petitioner contends
otherwise and insists that his failure to object cannot be construed as an implied waiver.

Petitioner is wrong.

Doubtless, the constitutional immunity against unreasonable searches and seizures is a personal
right, which may be waived.44 However, to be valid, the consent must be voluntary such that it is
unequivocal, specific, and intelligently given, uncontaminated by any duress or coercion.45 Relevant
to this determination of voluntariness are the following characteristics of the person giving consent
and the environment in which consent is given: (a) the age of the consenting party; (b) whether he or
she was in a public or secluded location; (c) whether he or she objected to the search or passively
looked on;46 (d) his or her education and intelligence; (e) the presence of coercive police procedures;
(f) the belief that no incriminating evidence will be found;47 (g) the nature of the police questioning; (h)
the environment in which the questioning took place; and (i) the possibly vulnerable subjective state
of the person consenting.48

In Asuncion v. Court of Appeals,49the apprehending officers sought the permission of petitioner to

search the car, to which the latter agreed. According to the Court, petitioner himself freely gave his
consent to the search. In People v. Montilla, 50 the Court found the accused to have spontaneously
performed affirmative acts of volition by opening the bag without being forced or intimidated to do so,
which acts amounted to a clear waiver of his right. In People v. Omaweng,51 the police officers asked
the accused if they could see the contents of his bag, to which the accused said "you can see the
contents but those are only clothings." The policemen then asked if they could open and see it, and
the accused answered "you can see it." The Court held there was a valid consented search.

Similarly in this case, petitioner consented to the baggage inspection done by SCAA Buco. When
SCAA Buco asked if he could open petitioner's bag, petitioner answered ''yes, just open if' based
on petitioner's own testimony. This is clear consent by petitioner to the search of the contents of his
bag. In its Decision dated 26 June 2014, the Court of Appeals aptly held:

A waiver was found in People v. Omaweng. There, the police officers asked the accused if they
could see the contents of his bag and he answered "you can see the contents but those are only
clothings.'' When asked if they could open and see it, he said "you can see it." In the present case,
accused-appellant told the member of the task force that "it was only a cellphone" when asked who
owns the bag and what are its contents. When asked by the member of the task force if he could
open it, accused-appellant told him "yes, just open it." Hence, as in Omaweng, there was a waiver of
accused-appellants right against warrantless search.52

To emphasize, a reasonable search, on the one hand, and a warrantless search, on the other, are
mutually exclusive. While both State intrusions are valid even without a warrant, the underlying
reasons for the absence of a warrant are different. A reasonable search arises from a reduced
expectation of privacy, for which reason Section 2, Article III of the Constitution finds no application.
Examples include searches done at airports, seaports, bus terminals, malls, and similar public
·places. In contrast, a warrantless search is presumably an "unreasonable search," but for reasons
of practicality, a search warrant can be dispensed with. Examples include search incidental to a
lawful arrest, search of evidence in plain view, consented search, and extensive search of a private
moving vehicle.

Further, in the conduct of bus searches, the Court Jays down the following guidelines. Prior to
1âw phi 1

entry, passengers and their bags and luggages can be subjected to a routine inspection akin to
airport and seaport security protocol. In this regard, metal detectors and x-ray scanning machines
can be installed at bus terminals. Passengers can also be frisked. In lieu of electronic scanners,
passengers can be required instead to open their bags and luggages for inspection, which
inspection must be made in the passenger's presence. Should the passenger object, he or she can
validly be refused entry into the terminal.

While in transit, a bus can still be searched by government agents or the security personnel of the
bus owner in the following three instances. First, upon receipt of information that a passenger carries
contraband or illegal articles, the bus where the passenger is aboard can be stopped en route to
allow for an inspection of the person and his or her effects. This is no different from an airplane that
is forced to land upon receipt of information about the contraband or illegal articles carried by a
passenger onboard. Second, whenever a bus picks passengers en route, the prospective passenger
can be frisked and his or her bag or luggage be subjected to the same routine inspection by
government agents or private security personnel as though the person boarded the bus at the
terminal. This is because unlike an airplane, a bus is able to stop and pick passengers along the
way, making it possible for these passengers to evade the routine search at the bus
terminal. Third, a bus can be flagged down at designated military or police checkpoints where State
agents can board the vehicle for a routine inspection of the passengers and their bags or luggages.

In both situations, the inspection of passengers and their effects prior to entry at the bus terminal
and the search of the bus while in transit must also satisfy the following conditions to qualify as a
valid reasonable search. First, as to the manner of the search, it must be the least intrusive and must
uphold the dignity of the person or persons being searched, minimizing, if not altogether eradicating,
any cause for public embarrassment, humiliation or ridicule. Second, neither can the search result
from any discriminatory motive such as insidious profiling, stereotyping and other similar motives. In
all instances, the fundamental rights of vulnerable identities, persons with disabilities, children and
other similar groups should be protected. Third, as to the purpose of the search, it must be confined
to ensuring public safety. Fourth, as to the evidence seized from the reasonable search, courts must
be convinced that precautionary measures were in place to ensure that no evidence was planted
against the accused.

The search of persons in a public place is valid because the safety of others may be put at risk.
Given the present circumstances, the Court takes judicial notice that public transport buses and their
terminals, just like passenger ships and seaports, are in that category.

Aside from public transport buses, any moving vehicle that similarly accepts passengers at the
terminal and along its route is likewise covered by these guidelines. Hence, whenever compliant with
these guidelines, a routine inspection at the terminal or of the vehicle itself while in transit constitutes
a reasonable search. Otherwise, the intrusion becomes unreasonable, thereby triggering the
constitutional guarantee under Section 2, Article III of the Constitution.

To emphasize, the guidelines do not apply to privately-owned cars. Neither are they applicable to
moving vehicles dedicated for private or personal use, as in the case of taxis, which are hired by
only one or a group of passengers such that the vehicle can no longer be flagged down by any other
person unti1 the passengers on board alight from the vehicle.

WHEREFORE, the petition is DENIED. The Decision dated 26 June 2014 and the Resolution dated
15 October 2014 of the Court of Appeals in CA-G.R. CR No. 01099 are AFFIRMED.

SO ORDERED.
 THIRD DIVISION
[ G.R. No. 229071, December 10, 2018 ]
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS.
EANNA O'COCHLAIN, ACCUSED-APPELLANT.

DECISION

PERALTA, J.:

On appeal is the February 9, 2016 Decision[1] and July 21, 2016 Resolution[2] of the
Court of Appeals (CA) in CA-G.R. CR No. 36412, which affirmed the November 22,
2013 Decision[3] of the Regional Trial Court (RTC), Branch 13, Laoag City, in
Criminal Case No. 15585-13, finding accused-appellant Eanna O'Cochlain (Eanna)
guilty of violating Section 11, Article II of Republic Act (R.A.) No. 9165 or the
Comprehensive Dangerous Drugs Act of 2002.

At the time of his arrest, Eanna was a 53-year old Irish national married to a
Filipina and residing in Barangay Aring, Badoc, Ilocos Norte. In an
Information[4] dated July 15, 2013, he was charged with illegal possession of
marijuana, committed as follows:
That on or about [the] 14th day of July 2013 in the City of Laoag and within the
jurisdiction of this Honorable Court, the above-named accused, did then and there
willfully, unlawfully and feloniously had in his possession, custody and control: two
(2) sticks of dried Marijuana Leaves, a dangerous drug, with an aggregate weight of
0.3824 grams, without any license or authority to possess, in violation of the
aforesaid law.[5]
With the assistance of a counsel de parte and in the presence of a public
prosecutor, Eanna pleaded "NOT GUILTY" in his arraignment.[6] He was allowed to
post bail for his temporary liberty, but a hold departure order was issued to prevent
him from leaving the Philippines and his passport was surrendered to the court for
its custody in the course of the proceedings.[7]

Version of the Prosecution

Aside from the sworn statements of other intended witnesses,[8] the testimonies in
open court of Security Screening Officer Dexter Suguitan (SSO Suguitan), Police
Officer 3 Joel Javier (PO3 Javier), and PO1 Erald Terson (PO1 Terson) reveal as
follows:

While on his break time around 7:00 p.m. on July 14, 2013, SSO Suguitan of the
Department of Transportation - Office of Transportation Security (OTS), assigned at
the initial security screening checkpoint of the Laoag City International Airport, was
told by CAAP[9] Security and Intelligence Flor Tamayo (CSI Tamayo) that the
parking space in front of the departure area smelled like marijuana ("agat sa
marijuana"). He suspected that Eanna was the one who smoked the illegal drug,
recounting that at aroud 6:35 p.m. he saw a certain male Caucasian at the parking
area lighting something unrecognizable as he was covering it with his palm. CSI
Tamayo observed that whenever he would suck what he seemed to be smoking, no
visible vapor would come out from his mouth.

However, SSO Suguitan dismissed CSI Tamayo's story as he thought that it would
be impossible for a passenger to smoke marijuana at the airport. After a while, he
returned to his post at the initial check-in area. Meanwhile, CSI Tamayo reported
what he saw to PO2 Pancho Caole, Jr. (PO2 Caole, Jr.) and SSO Fidel Bal-ot (SSO
Bal-ot) , who were manning the final screening area.

Later on, SSO Bal-ot directed SSO Suguitan to proceed to the final security
checkpoint.[10] The latter was instructed to conduct a pat down search on Eanna,
who agreed. He was frisked while he raised his hands by stretching sideward to the
level of his shoulders with palms open. When something was felt inside the pocket
of his upper garment, he was asked to take it out. He then brought out a pack of
Marlboro red from his left pocket, as well as a matchbox and another pack of
Marlboro red from his right pocket. The pack of Marlboro red on his left hand
contained cigarettes but the one on his right hand contained two (2) rolled sticks of
what appeared to be dried marijuana leaves. SSO Suguitan knew it was marijuana
because that was what CSI Tamayo earlier told him. He took the pack of Marlboro
red containing the two rolled sticks of dried marijuana leaves and showed it to PO1
Peter Warner Manadao, Jr. (PO1 Manadao, Jr.) and other police personnel on duty.
SSO Suguitan put them on the nearby screening table in front of Eanna and PO1
Manadao, Jr. The two rolled sticks of dried marijuana leaves were the only items
placed thereon.

PO1 Udel Tubon[11] then called the attention of PO3 Javier, who was the investigator
on duty of the Philippine National Police (PNP) - Aviation Security Group (ASG). PO1
Manadao, Jr., PO2 Caole, Jr., SSO Suguitan, and SSO Bal-ot were at the final
checkpoint when he arrived. They told him that marijuana was found in Eanna's
pocket. SSO Suguitan turned over to PO3 Javier the pack of Marlboro red
containing the two rolled sticks of dried marijuana leaves. PO3 Javier then placed
them on a tray, together with Eanna's other belongings. As the area started to
become crowded, the seized items were brought by PO3 Javier to the PNP-ASG
office. He was accompanied by SSO Suguitan and Eanna.

Together with PO3 Javier at the PNP-ASG office were Police Superintendent
Diosdado Apias (P/Supt. Apias), PO1 Manadao, Jr., PO2 Caole, Jr., SSO Suguitan,
SSO Bal-ot, and a certain SPO3 Domingo. While waiting for the arrival of the
barangay officials, which took 15-20 minutes, the two rolled sticks of dried
marijuana leaves were placed on the investigation table where everybody could
look but not touch. Eanna was seated in front of the table, while the others guarded
him. PO3 Javier then prepared the inventory. The two rolled sticks of dried
marijuana leaves and other seized items were listed. The check-in baggage of
Eanna was also inspected, but it only contained clothes and other personal
belongings. The confiscation/inventory receipts were signed by PO3 Javier and SSO
Suguitan, as well as two (2) officials of Barangay Araniw, Laoag City (Barangay
Chairman Edilberto Bumanglag and Barangay Kagawad Benjamin Teodoro) and an
ABS-CBN cameraman (Juanito Badua), who acted as witnesses. In their presence,
as well as of Eanna, PO3 Javier marked the two rolled sticks of dried marijuana
leaves as "EO-1" and "EO-2" and, thereafter, placed them inside a Ziploc re-
sealable plastic bag. The guard of the PNP-ASG office, PO1 Terson, took pictures
during the inventory and marking, while P/Supt. Apias prepared the requests for
the medico-legal examination of Eanna and the laboratory examination of the two
rolled sticks of dried marijuana leaves. The marking, physical inventory, and
photographing were likewise witnessed by PO1 Manadao, Jr. and PO2 Caole, Jr.,
who executed a Joint Affidavit of Arrest with PO3 Javier.

Subsequently, Eanna was brought to the Governor Roque R. Ablan, Sr. Memorial
Hospital for his medico-legal examination. PO3 Javier proceeded to the Ilocos Norte
Provincial Crime Laboratory Office to submit the request for laboratory examination
and the two rolled sticks of dried marijuana leaves. The request and the specimens
were received by PO3 Padayao, the evidence custodian. Based on the qualitative
examination conducted by Forensic Chemist Police Inspector Amiely Ann Luis
Navarro (P/Insp. Navarro), which was reduced into writing, the specimens were
found to be positive for the presence of marijuana.

Version of the Defense

At around 6:30 p.m. on July 14, 2013, Eanna was with his wife at the Laoag City
International Airport for their Cebu Pacific flight bound for Manila. Since the x-ray
machine operator at the initial security screening was not yet around, he left his
wife in the line and smoked his pre-rolled tobacco and Marlboro cigarette outside,
about 30 meters away. Ten minutes passed, he went back to the initial security
checkpoint carrying his check-in and cabin luggage, camera bag, and some
shopping bags. The airport police conducted a body search and examined his
belongings. Afterwards, he proceeded to the final security check where he was
inspected by a male "immigration officer" wearing a brown shirt. As a result, a red
Marlboro cigarette pack, containing two pieces of rolled paper of flavored tobacco,
was found in his possession.[12] It was shown to him while he was in front of his
wife. The cigarette pack was then put on the desk, on top of one of his luggage. A
camera bag (containing a Sony camera, connecting cables, headphones, an MP3
player, cigarette paper, and a pack of Marlboro) was also searched. The officer got
some tiny grains after sticking his fingers into the bag. He showed them to Eanna
and asked what they were. The latter replied that they were flavored tobacco,
which he has been smoking for the past 30 years. Despite the claim, the officer
directed an airport police to bring Eanna to the police station that was about 150
meters away.

Together with his wife, Eanna was escorted by about five to six airport police. At
the PNP-ASG office, his camera bag and other luggage arrived approximately 20
minutes later. They were placed on top of the table and stayed there for 30-45
minutes before the police started to search the contents and catalog the items.
Prior to the inventory of the seized items, Eanna and his wife repacked their
luggage as the latter still proceeded with her scheduled flight. Thereafter, with the
permission of PO3 Javier, Eanna went outside the office to smoke as he waited for
his Batac-based Filipino relatives who arrived approximately after two hours. While
smoking outside, he could not see what was happening, if any, to his luggage and
camera bag.

The camera crew of ABS-CBN arrived at almost 11:00 p.m. An asset from the
Philippine Drug Enforcement Agency (PDEA) called Badua and told him to come to
the PNP-ASG office. He went with an off-duty security guard of ABS-CBN Laoag
City. There, he was allowed to cover the incident, which became the basis of a
television news report.

The sticks of the alleged marijuana were shown to Eanna thrice - once at the
airport and twice at the police station. On the second instance, he was shown two
thin rolled sticks that were placed on top of the table in front of him. On the third
time, however, he saw a thin and a fat rolled sticks made of paper that were
different from what he was using.

RTC Ruling

After trial, Eanna was convicted of the crime charged. The fallo of the November
22, 2013 Decision states:
WHEREFORE, accused Eanna O'Cochlain is hereby pronounced GUILTY beyond
reasonable doubt of the charge of illegal possession of marijuana weighing 0.3824
gram and is therefore sentenced to suffer the indeterminate penalty of
imprisonment of TWELVE (12) YEARS and ONE (1) DAY to FOURTEEN (14) YEARS
and to pay a fine of THREE HUNDRED THOUSAND PESOS (P300,000.00).

The two sticks of marijuana subject hereof are confiscated, the same to be disposed
in the manner that the law prescribes.

SO ORDERED.[13]
The search conducted on Eanna and his subsequent arrest were upheld. According
to the RTC, the search upon his person was not unreasonable but was actually an
exception to the proscription against warrantless searches and seizures. It was
justified as it proceeded from a duty or right that was enforced in accordance with
the aviation rules and regulations to maintain peace, order and security at the
airports. In fact, Eanna's plane ticket carried a proviso allowing airport authorities
to check on his person and baggage pursuant to the requirement of Section 9 of
R.A. No. 6235.[14] Moreover, another exception to the rule is consented warrantless
search and seizure. In this case, Eanna agreed to the body pat down search that
was requested by SSO Suguitan.

For the RTC, SSO Suguitan was a credible witness. It was observed that he was
spontaneous in his testimony and that he appeared candid and truthful in his
statements. There was nothing in his testimony or in the manner he testified that
could arouse serious suspicion of lying. Some of his inconsistent statements, which
the defense considered as irreconcilable, were insignificant and trivial as they do
not impinge on any of the elements of the offense charged. Instead, the statements
bolster SSO Suguitan's credibility as they were indicia of his unrehearsed
testimony.

The RTC opined that Eanna's denial was not based on clear and convincing
evidence; rather, it was bare and self-serving. His testimony was even fraught with
incoherence and serious inconsistencies which he obviously committed as he
desperately tried to show that what was taken from his possession was mere
tobacco. Considering his flip-flopping testimony, his denial was not given credence
and did not prevail over the credible testimony of SSO Suguitan and the
unquestioned findings of the forensic chemist.

Finally, as to the chain of custody of the illegal drug seized, the RTC was satisfied
that the prosecution was able to preserve the integrity and evidentiary value of the
subject marijuana. It ruled:
In this case, the Court does not doubt a bit that the two sticks of marijuana
presented in evidence are the same sticks of marijuana confiscated from the
accused. There was not only compliance by the airport authorities of the
requirements of Section 21 of the law and its implementing rules and regulations,
there is a complete account of the complete chain of custody of the two sticks of
marijuana that negates any doubt that their integrity and evidentiary value have
been preserved. As it has been established by the prosecution, upon being informed
of the arrest of the accused, after SSO Suguitan had confiscated the two [sticks] of
marijuana from the accused, PO3 Joel Javier, the duty police investigator at the
airport at [the] time who was at the ramp outside the departure terminal was called
and when he arrived at the place where the accused was accosted and was
informed of the arrest of the accused, he took custody of the two sticks of
marijuana which were then on the screening desk or table and invited the accused
to the office of the PNP-CAAP Aviation Security Group located within the premises
of the airport not far tram the departure terminal. There, PO3 Javier marked the
two sticks of marijuana with E0-1 and. E0-2. Upon the arrival of two Barangay
officials, Barangay Chairman Edilberto Bumanglag and Kagawad Benjamin Teodoro
of Barangay Araniw, Laoag City which has territorial jurisdiction over the airport,
and a member of the media in the person of Juanito Badua, a cameraman of ABS-
CBN, Laoag, PO3 Javier also conducted the required inventory not only of the two
sticks of marijuana but the other belongings of the accused contained in his
luggage. In the course of the inventory, PO1 Erald Terson, also a member of the
PNP Aviation Security Group, took pictures of the seized items as he was directed to
do by their superior. Sometime later, as the accused was brought for medical
examination, PO3 Javier was the one who brought the two sticks of marijuana
together with the prepared letter request to the Ilocos Norte Provincial Crime
Laboratory Office for examination. And to complete the chain, the prosecution
established that at the said crime lab, the two sticks were received by PO3 Padayao
who thereupon turned them over to the forensic chemist, Police Inspector Amiely
Ann Navarro. As the Court takes judicial notice from the record of the case, the two
sticks were finally submitted to court on July 19, 2013, received by the Branch
Clerk of Court, Atty. Bernadette Espejo[,] who issued the corresponding
Acknowledgment Receipt therefor.

Significantly relative to the chain of custody and as would have equally done by the
other concerned witnesses such as forensic chemist Police Inspector Navarro who
issued her written chemistry reports of the qualitative examinations she conducted
on the specimens, and PO3 Padayao, both of the crime lab, SSO Suguitan[,] who
discovered the two sticks of marijuana[,] identified the same in open court, pointing
in the process the respective markings E0-1 and E0-2 that he witnessed to have
been placed by the investigating police officer, PO3 Javier[,] which, after the
inventory, the latter placed in a plastic bag (Ziploc). PO3 Javier himself also
identified the two sticks of marijuana.

At this point, the Court is not oblivious of the fact that in his testimony SSO
Suguitan initially claimed that he turned over the two sticks of marijuana to PO1
Manadao, Jr. But actually[,] as it can be clearly appreciated from the testimony of
SSO Suguitan, the turn over that he said was merely the placing of the two sticks
of marijuana on top of the table at the final screening area, in front of PO1
Manadao and the accused. In fact, as SSO Suguitan conoborated PO3 Javier, the
two sticks of marijuana which were still on the screening desk were thereafter
placed on a tray and PO3 Javier was the one who then actually took custody thereof
as the accused was invited to the office of the PNP-CAAP Aviation Security Group.
PO3 Javier himself, when he was asked by the defense if it was PO1 Manadao who
turned over the specimens to him, categorically said, "No, sir, Mr. Dexter
Suguitan."

Also, the Court cannot be amiss to point out that the two sticks of marijuana could
not have been switched with another or contaminated while it was in the custody of
PO3 Javier. While admitting that there were many things that they prepared while
they were already in their office, he testified in effect that no such [thing]
happened. The people there at the office were not examining the specimens, they
were just looking and not holding it.

The Court at this point cannot but express its observation that PO3 Javier, just like
SSO Suguitan, was equally credible. He was straightforward, consistent and candid
in his testimony that it cannot in any way be considered suspect.[15]
Eanna moved to reconsider the RTC judgment, but it was denied; hence, a notice of
appeal was filed.[16]

CA Ruling

Finding no cause to overturn the findings of fact and conclusions of law, the CA
affirmed the assailed RTC Decision.

The CA affirmatively answered the issue of whether there was probable cause to
justify the warrantless search of Eanna and the seizure of his belongings. It
appreciated the prosecution's version that CSI Tamayo saw him smoking while
out.side the departure area of the airport terminal. Although no smoke coming from
his mouth was seen, CSJ Tamayo still smelled the scent of marijuana. Similar to the
RTC ruling, the warrantless search and seizure was also valid because the search
was conducted pursuant to a routine airport security procedure and Eanna
voluntarily gave his consent thereto.

It was likewise held that all the elements of the crime of illegal possession of
dangerous drug were satisfactorily established. First, Eanna was caught in
possession and custody of two sticks of marijuana on July 14, 2013 at the Laoag
City International Airport during the routine search conducted by the airport
authorities. Second, he failed to prove that he was authorized by law to possess the
same. And third, he freely and consciously possessed the illegal drug.

The CA downplayed the alleged varying testimonies of the prosecution witnesses.

As the RTC opined, the inconsistences raised by the defense were minor and trivial
and could not affect the RTC's finding as to the credibility of the airport police
officers.

Finally, anent the chain of custody rule, the CA regarded as specious Eanna's claim
that the procedures set forth in Section 21 of R.A. No. 9165 were not followed. The
testimony of SSO Suguitan was quoted and the ratiocination of the RTC was
adopted to support the finding that the airport officials complied with the rule.

Eanna filed a motion for reconsideration, but it was denied on July 21, 2016.

Now before us, the Office of the Solicitor General manifested that it would no longer
file a supplemental brief as it had exhaustively discussed the legal issues and
arguments in its appeal brief before the CA.[17] On his part, Eanna filed a
Supplemental Brief[18] to bolster his claim that there were gaps in the chain of
custody of the alleged illegal drug seized. He argues that:

1. PO3 Javier was not at the scene where Eanna was found in possession of the
alleged illegal drug; thus, he had no personal knowledge of its possession by
Eanna and its seizure by SSO Suguitan.

2. It was not made clear by the prosecution that the two sticks of rolled paper
allegedly containing marijuana were marked immediately upon confiscation.

3. The drug evidence was rendered susceptible to alteration, tampering and

swapping because the Ziploc where it was placed was not sealed by an
adhesive tape or any means other than the natural, built-in resealable
feature of the plastic bag.

4. The presence of the marking "JEP" on the two rolled sticks of alleged
marijuana could not be explained and the marking made thereon
compromised their integrity and physical appearance.
 5. The presumption of regularity in the performance of official duty is unavailing
because the police authorities deviated from the mandated procedure and
offered no valid ground to show that their actuations were justified.

Our Ruling

The judgment of conviction is affirmed.

Airport screening search is a constitutionally reasonable administrative

search.

The search and seizure of an illegal drug during a routine airport inspection made
pursuant to the aviation security procedures has been sustained by this Court in a
number of cases.[19] In the leading case of People v. Johnson,[20] we held:
Persons may lose the protection of the search and seizure clause by exposure of
their persons or property to the public in a manner reflecting a lack of subjective
expectation of privacy, which expectation society is prepared to recognize as
reasonable. Such recognition is implicit in airport security procedures. With
increased concern over airplane hijacking and terrorism has come increased
security at the nation's airports. Passengers attempting to board an aircraft
routinely pass through metal detectors; their carry-on baggage as well as checked
luggage are routinely subjected to x-ray scans. Should these procedures suggest
the presence of suspicious objects, physical searches are conducted to determine
what the objects are. There is little question that such searches are reasonable,
given their minimal intrusiveness, the gravity of the safety interests involved, and
the reduced privacy expectations associated with airline travel. Indeed, travelers
are often notified through airport public address systems, signs, and notices in their
airline tickets that they are subject to search and, if any prohibited materials or
substances are found, such would be subject to seizure. These announcements
place passengers on notice that ordinary constitutional protections against
warrantless searches and seizures do not apply to routine airport procedures.[21]
Thus, while the right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures is guaranteed by Section
2, Article III of the 1987 Constitution,[22] a routine security check being conducted
in air[23] and sea[24] ports has been a recognized exception. This is in addition to a
string of jurisprudence ruling that search and seizure may be made without a
warrant and the evidence obtained therefrom may be admissible in the following
instances: (1) search incidental to a lawful arrest; (2) search of a moving motor
vehicle; (3) customs search; (4) seizure of evidence in "plain view"; (5) consented
warrantless search; (6) "stop and frisk" search; and (7) exigent and emergency
circumstance.[25]

Notably, Section 2, Article III of the Constitution was patterned after the Fourth
Amendment to the Constitution of the United States of America.[26] Having been
derived almost verbatim therefrom, the Court may turn to the pronouncements of
the US Federal Supreme Court and State Appellate Courts, which are considered
doctrinal in this jurisdiction.[27]
Like in our country, the circumstances under which a warrantless search,
unsupported by probable cause, may be considered reasonable under the Fourth
Amendment are very limited and that exceptions thereto are few specifically
established and well delineated.[28] In a similar way, the government bears the
burden of proving that a warrantless search was conducted pursuant to an
established exception to the Fourth Amendment warrant requirement.[29]

US courts have permitted exceptions to the Fourth Amendment when "special

needs, beyond the normal need for law enforcement, make the warrant and
probable cause requirement impracticable" such as work-related searches of
government employees' desks and offices, warrantless searches conducted by
school officials of a student's property, government investigators conducting
searches pursuant to a regulatory scheme when the searches meet "reasonable
legislative or administrative standards," and a State's operation of a probation
system.[30] The Fourth Amendment permits the warrantless search of "closely
regulated" businesses; "special needs" cases such as schools, employment, and
probation; and "checkpoint" searches such as airport screenings under the
administrative search doctrine.[31]

Searches and seizures are ordinarily unreasonable in the absence of individualized

suspicion of wrongdoing.[32] However, because administrative searches primarily
ensure public safety instead of detecting criminal wrongdoing, they do not require
individual suspicion.[33] Where the risk to public safety is substantial and real,
blanket suspicionless searches calibrated to the risk may rank as
"reasonable."[34] In particular, airport searches have received judicial sanction
essentially because of the magnitude and pervasiveness of the danger to the public
safety and the overriding concern has been the threat of death or serious bodily
injury to members of the public posed by the introduction of inherently lethal
weapons or bombs.[35]

Although the US Supreme Court has not specifically held that airport screening
searches are constitutionally reasonable administrative searches, it has suggested
that they qualify as such.[36] Airport security searches can be deemed lawful
administrative searches because (1) these searches constitute relatively limited
intrusions geared toward finding particular items (weapons, explosives, and
incendiary devices) that pose grave danger to airplanes and air travelers; (2) the
scrutiny of carry-on luggage is no more intrusive (in both its scope and intensity)
than is necessary to achieve the legitimate aims of the screening process (that is,
to ensure air travel safety); (3) airline passengers have advance notice that their
carry-on luggage will be subjected to these security measures, thus giving
passengers the opportunity to place their personal effects in checked luggage; (4)
all passengers are subject to the same screening procedures; and (5) passengers
are aware that they can avoid the screening process altogether by electing not to
board the plane.[37] Moreover, abuse is unlikely because of its public nature.[38]

As a permissible administrative search, the scope of airport routine check is not

limitless.[39] Airport screening procedures are conducted for two primary reasons:
first, to prevent passengers from carrying weapons or explosives onto the aircraft;
and second, to deter passengers from even attempting to do so.[40] The oft-cited
case of United States v. Davis[41] sets the appropriate standards for evaluating
airport screening searches as constitutionally reasonable administrative searches,
thus:
[S]earches conducted as part of a general regulatory scheme in furtherance of an
administrative purpose, rather than as part of a criminal investigation to secure
evidence of crime, may be permissible under the Fourth Amendment though not
supported by a showing of probable cause directed to a particular place or person
to be searched.

As we have seen, screening searches of airline passengers are conducted as part of

a general regulatory scheme in furtherance of an administrative purpose, namely,
to prevent the carrying of weapons or explosives aboard aircraft, and thereby to
prevent hijackings. The essential purpose of the scheme is not to detect weapons or
explosives or to apprehend those who carry them, but to deter persons carrying
such material from seeking to board at all.

Of course, routine airport screening searches will lead to discovery of contraband

and apprehension of law violators. This practical consequence does not alter the
essentially administrative nature of the screening process, however, or render the
searches unconstitutional. x x x.

There is an obvious danger, nonetheless, that the screening of passengers and their
carry-on luggage for weapons and explosives will be subverted into a general
search for evidence of crime. If this occurs, the courts will exclude the evidence
obtained.[42] (Citations omitted.)
The constitutional bounds of an airport administrative search require that the
individual screener's actions be no more intrusive than necessary to determine the
existence or absence of explosives that could result in harm to the passengers and
aircraft.[43] The search cannot also serve unrelated law enforcement purposes as it
effectively transforms a limited check for weapons and explosives into a general
search for evidence of crime, substantially eroding the privacy rights of passengers
who travel through the system.[44] As in other exceptions to the search warrant
requirement, the screening program must not turn into a vehicle for warrantless
searches for evidence of crime.[45] It is improper that the search be tainted by
"general law enforcement objectives" such as uncovering contraband unrelated to
that purpose or evidence of unrelated crimes or evidencing general criminal activity
or a desire to detect "evidence of ordinary criminal wrongdoing."[46] In United
States v. $124,570 US. Currency,[47] the US Court of Appeals for the Ninth Circuit
noted that the US Supreme Court has repeatedly emphasized the importance of
keeping criminal investigatory motives from coloring administrative searches.[48]

Hence, an airport search remains a valid administrative search only so long as the
scope of the administrative search exception is not exceeded; "once a search is
conducted for a criminal investigatory purpose, it can no longer be justified under
an administrative search rationale."[49] Where an action is taken that cannot serve
the administrative purpose, either because the threat necessitating the
administrative search has been dismissed or because the action is simply unrelated
to the administrative goal, the action clearly exceeds the scope of the permissible
search.[50] To the extent that airport administrative searches are used for purposes
other than screening luggage and passengers for weapons or explosives, they fall
outside the rationale by which they have been approved as an exception to the
warrant requirement, and the evidence obtained during such a search should be
excluded.[51]

Furthermore, to be constitutionally permissible, warrantless and suspicionless

airport screening searches must meet the Fourth Amendment standard of
reasonableness.[52] "What is reasonable depends upon all of the circumstances
surrounding the search or seizure and the nature of the search or seizure
itself."[53] There can be no ready test for determining reasonableness other than by
balancing the need to search against the invasion which the search entails.[54] In
other words, an administrative screening search must be as limited in its
intrusiveness as is consistent with satisfaction of the administrative need that
justifies it.[55] Specifically, the Court must balance an individual's right to be free of
intrusion with "society's interest in safe air travel."[56] On this score, Davis again
has provided a guidepost. There it was held that an airport security search is
considered as reasonable if: (1) the search is no more extensive or intensive than
necessary, in light of current technology, to satisfy the administrative need that
justifies it, that is to detect the presence of weapons or explosives; (2) the search
is confined in good faith to that purpose; and (3) a potential passenger may avoid
the search by choosing not to fly.[57]

In State v. Hanson,[58] the Intermediate Court of Appeals of Hawai'i believed in the

soundness of the logic of the US Court of Appeals for the Fifth Circuit in United
States v. Skipwith,[59] which ruled:
Necessity alone, however, whether produced by danger or otherwise, does not in
itself make all non-probable-cause searches reasonable. Reasonableness requires
that the courts must weigh more than the necessity of the search in terms of
possible harm to the public. The equation must also take into account the likelihood
that the search procedure will be effective in averting the potential harm. On the
opposite balance we must evaluate the degree and nature of intrusion into the
privacy of the person and effects of the citizen which the search entails.

In undertaking our calculation of the weight to be accorded to these three factors in

the case at bar - public necessity, efficacy of the search, and degree of intrusion -
we need not reiterate what was said in Moreno about the dangers posed by air
piracy; suffice it to say that there is a judicially-recognized necessity to insure that
the potential harms of air piracy are foiled. The search procedures have every
indicia of being the most efficacious that could be used. The group being screened
is limited to persons with the immediate intention of boarding aircraft. Metal
detectors, visual inspection, and rare but potential physical searches appear to this
court to provide as much efficiency to the process as it could have.

On the other side of the judicial scales, the intrusion which the airport search
imposes on the public is not insubstantial. It is inconvenient and annoying, in some
cases it may be embarrassing, and at times it can be incriminating. There are
several factors, however, which make this search less offensive to the searched
person than similar searches in other contexts. One such factor is the almost
complete absence of any stigma attached to being subjected to search at a known,
designated airport search point. As one commentator has put it in the border
search context, "individuals searched because of their membership in a morally
neutral class have less cause to feel insulted . . . ." In addition, the offensiveness of
the screening process is somewhat mitigated by the fact that the person to be
searched must voluntarily come to and enter the search area. He has every
opportunity to avoid the procedure by not entering the boarding area. Finally, the
circumstances under which the airport search is conducted make it much less likely
that abuses will occur. Unlike searches conducted on dark and lonely streets at
night where often the officer and the subject are the only witnesses, these searches
are made under supervision and not far from the scrutiny of the traveling public.

Moreover, the airlines, which have their representatives present, have a definite
and substantial interest in assuring that their passengers are not unnecessarily
harassed. The officers conducting the search under these circumstances are much
more likely to be solicitous of the Fourth Amendment rights of the traveling public
than in more isolated, unsupervised surroundings.

Our conclusion, after this tripartite weighing of the relevant factors, is that the
standards for initiating a search of a person at the boarding gate should be no more
stringent than those applied in border crossing situations. In the critical pre-
boarding area where this search started, reasonableness does not require that
officers search only those passengers who meet a profile or who manifest signs of
nervousness or who otherwise appear suspicious. Such a requirement would have
to assume that hijackers are readily identifiable or that they invariably possess
certain traits. The number of lives placed at hazard by this criminal paranoia forbid
taking such deadly chances. As Judge Friendly has stated:
Determination of what is reasonable requires a weighing of the harm against the
need. When the object of the search is simply the detection of past crime, probable
cause to arrest is generally the appropriate test . . . . When the risk is the jeopardy
to hundreds of human lives and millions of dollars of property inherent in the
pirating or blowing up of a large airplane, the danger alone meets the test of
reasonableness, so long as the search is conducted in good faith for the purpose of
preventing hijacking or like damage and with reasonable scope and the passenger
has been given advance notice of his liability to such a search so that he can avoid
it by choosing not to travel by air. (Citations omitted.)
According to United States v. Aukai,[60] US case law had erroneously suggested that
the reasonableness of airport screening searches is dependent upon the
passenger's consent, either ongoing consent or irrevocable implied consent. It
opined:

The constitutionality of an airport screening search, however, does not depend on

consent, see Biswell, 406 U.S. at 315, and requiring that a potential passenger be
allowed to revoke consent to an ongoing airport security search makes little sense
in a post-9/11 world. Such a rule would afford terrorists multiple opportunities to
attempt to penetrate airport security by "electing not to fly" on the cusp of
detection until a vulnerable portal is found. This rule would also allow terrorists a
low-cost method of detecting systematic vulnerabilities in airport security,
knowledge that could be extremely valuable in planning future attacks. Likewise,
given that consent is not required, it makes little sense to predicate the
reasonableness of an administrative airport screening search on an irrevocable
implied consent theory. Rather, where an airport screening search is otherwise
reasonable and conducted pursuant to statutory authority, 49 U.S.C. § 44901, all
that is required is the passenger's election to attempt entry into the secured area of
an airport. See Biswell, 406 U.S. at 315; 49 C.F.R. § 1540.107. Under current TSA
regulations and procedures, that election occurs when a prospective passenger
walks through the magnetometer or places items on the conveyor belt of the x-ray
machine.[61] (Citation omitted.)

Currently, US courts are of the view that the constitutionality of a screening search
does not depend on the passenger's consent once he enters the secured area of an
airport. The requirement in Davis[62] of allowing passengers to avoid the search by
electing not to fly does not extend to one who has already submitted his luggage
for an x-ray scan.[63] If a potential passenger chooses to avoid a search, he must
elect not to fly before placing his baggage on the x-ray machine's conveyor
belt.[64] The right to abandon air travel must be exercised prior to commencing the
screening procedures. Any other rule would allow potential hijackers to leave
whenever detection seemed imminent and permit them to try again another day.[65]

The instant case does not qualify as a legitimate administrative search in

an airport.

Similar to the mission of the Transportation Security Administration of the US

Department of Homeland Security, the Office of Transportation Security under the
Department of Transportation and its predecessors has been primarily[66] mandated
to ensure civil aviation security.[67] To be precise, the OTS is tasked to implement
Annex 17 of the ICAO Convention on aviation security which seeks to safeguard
civil aviation and its facilities against acts of unlawful interference, which include
but not limited to:

1. unlawful seizure of aircraft,

2. destruction of an aircraft in service,

3. hostage-taking on board aircraft or on aerodromes,

4. forcible intrusion on board an aircraft, at an airport or on the premises of an

aeronautical facility,

5. introduction on board an aircraft or at an airport of a weapon or hazardous

device or material intended for criminal purposes,

6. use of an aircraft in service for the purpose of causing death, serious bodily
injury, or serious damage to property or the environment,
 7. communication of false information such as to jeopardize the safety of an
aircraft in flight or on the ground, of passengers, crew, ground personnel or
the general public, at an airport or on the premises of a civil aviation
facility.[68]

Among others, the OTS has to enforce R.A. No. 6235 or the Anti-Hijacking
Law.[69] It provides that an airline passenger and his hand-carried luggage are
subject to search for, and seizure of, prohibited materials or substances and that it
is unlawful for any person, natural or juridical, to ship, load or carry in any
passenger aircraft, operating as a public utility within the Philippines, any explosive,
flammable, corrosive or poisonous substance or material.[70]

It is in the context of air safety-related justifications, therefore, that routine airport

security searches and seizures are considered as permissible under Section 2,
A1iicle III of the Constitution.

In this case, what was seized from Eanna were two rolled sticks of dried marijuana
leaves. Obviously, they are not explosive, flammable, corrosive or poisonous
substances or materials, or dangerous elements or devices that may be used to
commit hijacking or acts of terrorism. More importantly, the illegal drugs were
discovered only during the final security checkpoint, after a pat down search was
conducted by SSO Suguitan, who did not act based on personal knowledge but
merely relied on an information given by CSI Tamayo that Eanna was possibly in
possession of marijuana. In marked contrast, the illegal drugs confiscated from the
accused in Johnson and the subsequent cases of People v. Canton,[71] People v.
Suzuki,[72] Sales v. People,[73] and People v. Cadidia,[74] where incidentally
uncovered during the initial security check, in the course of the routine airport
screening, after the defendants were frisked and/or the alarm of the metal detector
was triggered.

Airport search is reasonable when limited in scope to the object of the Anti-
Hijacking program, not the war on illegal drugs. Unlike a routine search where a
prohibited drug was found by chance, a search on the person of the passenger or
on his personal belongings in a deliberate and conscious effort to discover an illegal
drug is not authorized under the exception to the warrant and probable cause
requirement.[75] The Court is not empowered to suspend constitutional guarantees
so that the government may more effectively wage a "war on drugs." If that war is
to be fought, those who fight it must respect the rights of individuals, whether or
not those individuals are suspected of having committed a crime.[76]

Nonetheless, there is a valid consented warrantless search in this case.

The constitutional immunity against unreasonable searches and seizures is a

personal right which may be waived.[77] A person may voluntarily consent to have
government officials conduct a search or seizure that would otherwise be barred by
the Constitution. Like the Fourth Amendment, Section 2, Article III of the
Constitution does not proscribe voluntary cooperation.[78]
Yet, a person's "consent to a [warrantless] search, in order to be voluntary, must
be unequivocal, specific and intelligently given, [and] uncontaminated by any
duress or coercion[.]"[79] The question of whether a consent to a search was
"voluntary" or was the product of duress or coercion, express or implied, is a
question of fact to be determined from the totality of all the circumstances.[80]
Relevant to this determination are the following characteristics of the person giving
consent and the environment in which consent is given: (1) the age of the
defendant; (2) whether [he] was in a public or a secluded location; (3) whether
[he] objected to the search or passively looked on; (4) the education and
intelligence of the defendant; (5) the presence of coercive police procedures; (6)
the defendant's belief that no incriminating evidence [will] be found; (7) the nature
of the police questioning; (8) the environment in which the questioning took place;
and (9) the possibly vulnerable subjective state of the person consenting.[81]
Consent to a search is not to be lightly inferred, but shown by clear and convincing
evidence.[82] The government bears the burden of proving "consent."[83] In the US,
it has been held that when the government relies on the "consent" exception to the
warrant requirement, two main issues must be litigated: did the defendant indeed
consent, and did the defendant do so with the requisite voluntariness?[84] Here, we
have ruled that to constitute a waiver, it must first appear that the right exists;
secondly, that the person involved had knowledge, actual or constructive, of the
existence of such a right; and, lastly, that said person had an actual intention to
relinquish the right.[85]

While knowledge of the right to refuse consent is one factor to be taken into
account, the government need not establish such knowledge as the sine qua non of
effective consent.[86] On the other hand, lack of objection to the search and seizure
is not tantamount to a waiver of constitutional right or a voluntary submission to
the warrantless search and seizure.[87] Even when security agents obtain a
passenger's express assent to a search, this assent ordinarily will not constitute a
valid "consent" if the attendant circumstances will establish nothing more than
acquiescence to apparent lawful authority.[88]

The Fourth Amendment inquiry of whether a reasonable person would have felt free
to decline the officers' requests or otherwise terminate the encounter applies
equally to police encounters that take place on trains, planes, and city
streets.[89] "Consent" that is the product of official intimidation or harassment is not
consent at all.[90]

In this case, the Court finds that there is a valid warrantless search based on
express consent. When SSO Suguitan requested to conduct a pat down search on
Eanna, the latter readily agreed. Record is devoid of any evidence that he
manifested objection or hesitation on the body search. The request to frisk him was
orally articulated to him in such language that left no room for doubt that he fully
understood what was requested. Unperturbed, he verbally replied to the request
demonstrating that he also understood the nature and consequences of the
request. He voluntarily raised his hands by stretching sideward to the level of his
shoulders with palms open. His affirmative reply and action cannot be viewed as
merely an implied acquiescence or a passive conformity to an authority considering
that SSO Suguitan is not even a police officer and cannot be said to have acted with
a coercive or intimidating stance. Further, it is reasonable to assume that Eanna is
an educated and intelligent man. He is a 53-year old working professional (claimed
to be employed or attached to a drug addiction center) and a well-travelled man
(said to have been in 22 different countries and spent hours in
customs).[91] Indubitably, he knew, actually or constructively, his right against
unreasonable searches or that he intentionally conceded the same. Having been
obtained through a valid warrantless search, the sticks of marijuana are admissible
in evidence against him. Corollorily, his subsequent arrest, although likewise
without warrant, was justified since it was effected upon the discovery and recovery
of an illegal drug in his person in flagrante delicto.

There is substantial compliance with the chain of custody rule.

At the time of the commission of the crime, the applicable law is R.A. No.
9165.[92] Section 1 (b) of Dangerous Drugs Board Regulation No. 1, Series of 2002,
which implements the law, defines chain of custody as -
[T]he duly recorded authorized movements and custody of seized drugs or
controlled chemicals or plant sources of dangerous drugs or laboratory equipment
of each stage, from the time of seizure/confiscation to receipt in the forensic
laboratory to safekeeping to presentation in court for destruction. Such record of
movements and custody of seized item shall include the identity and signature of
the person who held temporary custody of the seized item, the date and time when
such transfer of custody [was] made in the course of safekeeping and use in court
as evidence, and the final disposition.[93]
The chain of custody rule is but a variation of the principle that real evidence must
be authenticated prior to its admission into evidence.[94] To establish a chain of
custody sufficient to make evidence admissible, the proponent needs only to prove
a rational basis from which to conclude that the evidence is what the party claims
it to be.[95] In a criminal case, the prosecution must offer sufficient evidence from
which the trier of fact could reasonably believe that an item still is what the
government claims it to be.[96] As regards the prosecution of illegal drugs, the well-
established US federal evidentiary rule is when the evidence is not readily
identifiable and is susceptible to alteration by tampering or contamination, courts
require a more stringent foundation entailing a chain of custody of the item
with sufficient completeness to render it improbable that the original item has
either been exchanged with another or been contaminated or tampered
with.[97] This evidentiary rule was adopted in Mallillin v. People,[98] where this Court
also discussed how, ideally, the chain of custody of seized items should be
established:
As a method of authenticating evidence, the chain of custody rule requires that the
admission of an exhibit be preceded by evidence sufficient to support a finding that
the matter in question is what the proponent claims it to be. It would include
testimony about every link in the chain, from the moment the item was picked up
to the time it is offered into evidence, in such a way that every person who touched
the exhibit would describe how and from whom it was received, where it was and
what happened to it while in the witness' possession, the condition in which it was
received and the condition in which it was delivered to the next link in the chain.
These witnesses would then describe the precautions taken to ensure that there
had been no change in the condition of the item and no opportunity for someone
not in the chain to have possession of the same.[99]
In the present case, the prosecution was able to prove, through the documentary
and testimonial evidence, that the integrity and evidentiary value of the seized
items were properly preserved in every step of the way.

Upon confiscation of the two rolled sticks of dried marijuana leaves from Eanna,
SSO Suguitan put them on the nearby screening table in front of Eanna and PO1
Manadao, Jr. The sticks were the only items placed on the table.[100] Thereafter, the
seized items were turned-over by SSO Suguitan to PO3 Javier, who placed them on
a tray together with he other belongings of Eanna.[101] It must be emphasized that
SSO Suguitan is an airport screening officer and not a police officer who is
authorized to "arrest" or "apprehend"[102] Eanna. Hence, he should not be
considered as the "apprehending officer" who must immediately mark and conduct
the physical inventory and photograph of the seized items conformably with Section
21 of R.A. No. 9165 and its Implementing Rules and Regulations (IRR).

PO3 Javier was the only one in possession of the two rolled sticks of dried
marijuana leaves from the time he took custody of the same at the airport up to
the time he submitted the same to the crime laboratory office.[103] At the PNP-ASG
office, the confiscated illegal drug was marked, physically inventoried, and
photographed in front of Eanna, with SSO Suguitan, a Barangay Chairman, a
Barangay Kagawad, and an ABS-CBN cameraman as witnesses.[104] Per Request for
Laboratory Examination,[105] the specimens were personally delivered by PO3 Javier
to the Ilocos Norte Provincial Crime Laboratory Service where PO3 Padayao
received them. Finally, based on the Chemistry Report[106] of Police Inspector
Navarro and the stipulation of facts[107] agreed upon by the parties, the specimens
tested positive for the presence of marijuana after a qualitative examination.

The specimens contained in the Ziploc re-sealable plastic bag that were marked,
tested, and presented in court were positively identified not only by PO3 Javier but
also by SSO Suguitan as the same two rolled sticks of dried marijuana leaves
seized from Eanna.[108] Hence, it would be immaterial even if, as Eanna argues, PO3
Javier had no personal knowledge of their possession by Eanna and their seizure by
SSO Suguitan.

Eanna contends that the two sticks of rolled paper allegedly containing marijuana
were not marked immediately and were just laid bare on a table at the PNP-ASG
office. According to him, the ABS-CBN video footage taken shortly before midnight,
which Badua submitted and which was already edited following the news report
format, showed that the two sticks were without markings at first and then with
markings later on.

The Court notes that the compact disk showing the video of what transpired inside
the PNP-ASG office does not contain the full footage that Badua had taken. It was
already edited for purposes of news report.[109] Assuming that there is truth to the
allegation that the two sticks of marijuana were not immediately marked, such fact
does not automatically result in an acquittal. As long as the integrity and
evidentiary value of an illegal drug were not compromised, non-compliance with
Section 21 (1) of R.A. No. 9165 and its IRR may be excused. In several
cases,[110] we affirmed the conviction of the accused-appellant despite recognizing
that the seized illegal drug was not immediately marked at the place of arrest.
Likewise, in People v. Sic-open,[111] the Court sustained the conviction of the
accused-appellant even if the physical inventory and photograph of the illegal drug
were not immediately done at the place where it was confiscated. Here, the reason
for the non-observance with the rule is justified. Immediate marking, physical
inventory, and photograph of the confiscated drug cannot be done at the final
checkpoint area because it started to become crowded by the constant comings and
goings of departing passengers. The seized items were fittingly brought by PO3
Javier to the PNP-ASG office where it was made sure that the barangay officials and
a media man were in attendance to witness the regularity of the entire proceedings.

The peculiar situation in airports calls for a different treatment in the application of
Section 21 (1) of R.A. No. 9165 and its IRR. To require all the time the immediate
marking, physical inventory, and photograph of the seized illegal drug will definitely
have a domino effect on the entire airport operation no matter how brief the whole
procedure was conducted. Stuck passengers will cause flight delays, resulting not
just economic losses but security threats as well. Besides, to expect the immediate
marking, physical inventory, and photograph of the dangerous drug at the place of
arrest is to deny the reality that the persons[112] required by law to witness the
procedure are unavailable at the moment of arrest. Unlike in a buy-bust operation
which is supposed to be pre-planned and already coordinated in order to ensure the
instant presence of necessary witnesses, arrests and seizures in airports due to
illegal drugs are almost always spontaneous and unanticipated.

In our view, the period of waiting for the arrival of the witnesses did not affect the
integrity and evidentiary value of the subject illegal drug, on the following grounds:

First, the airport police ensured that only authorized personnel were inside the PNP-
ASG office during the investigation. PO3 Javier claimed that he was with SPO3
Domingo, PO1 Manadao, Jr., PO2 Caole, Jr., SSO Suguitan, SSO Bal-ot, and P/Supt.
Apias.[113] It was only the members of the PNP-ASG and of the Laoag City PNP, the
media, and the two barangay officials who were allowed to stay inside the
room.[114] The defense counsel recognized that the PNP-ASG office has a limited
space and not big in size, estimating it to be around three by four meters (although
PO1 Terson approximated it to be five by seven meters).[115]

Second, the airport police made sure that no one could touch the confiscated drug
even if it was in full view of everyone. PO3 Javier testified that the two rolled sticks
of dried marijuana leaves were placed on the investigation table where everybody
could look but not hold.[116] Eanna could also see any attempt to switch or alter the
evidence as he was seated just in front of the table while the others guarded
him.[117] Interestingly, instead of being concerned at the time of the risk of
substitution, he even requested to smoke so he was allowed to go out of the PNP-
ASG office.[118] Although the apprehending officers could have exercised a better
judgment, they are under no obligation to explain why the accused was permitted
to leave the office in order to smoke. Such fact should not be taken against them as
the integrity and evidentiary value of the seized items are not automatically
rendered infirmed. Certainly, we consider the totality of eircumstanees present in
this case. Eanna's right to be presumed innocent until proven otherwise includes
the constitutional right to enjoy his liberty, albeit in a restricted sense due to his
arrest. He retains his (limited) freedom of movement during the course of the
investigation. Likewise, it must be added that the natural tendeney of an innocent
person aceused of committing a crime is not to rest easy by ensuring that the
evidence being used against him is not altered, tampered or swapped. In this case,
Eanna's resolve to smoke outside notwithstanding a pending concern either shows
that he was adamant in his claim that what was confiscated from him were merely
flavored tobaeco or that he was already resigned to the fact that he was busted
possessing marijuana. The Court cannot speeulate or engage in guesswork.

And third, the plausibility of tampering with the evidence is nil as the airport police
were preoccupied in accomplishing the necessary documentation relative to the
arrest and seizure. PO3 Javier shared that while waiting for the arrival of the
barangay offieials, their group were busy preparing documents which mainly consist
of reports regarding the incident.[119] The trial court equally noted that "there were
a lot of things they were doing like the preparation of the spot report that they
[would] forward to Manila such that their Deputy Chief even helped them. It is
precisely for [this] reason that the two sticks of marijuana [appear] to have been
submitted to the crime lab only at 12:50 a.m. of the following day, July 15,
2013."[120]

It has been raised that the drug evidence should have been placed in a sealed
container. Eanna asserts that the evidence was rendered susceptible to alteration,
tampering and swapping because the Ziploc was not sealed by an adhesive tape or
any means other than the natural, built-in re-sealable feature of the plastic bag.
Contrary to his allegation, however, the specimens that were submitted to the RTC
were actually placed in a big transparent resealable Hefty One Zip plastic bag
sealed with a masking tape with markings.[121] Even if there is truth to his
representation, the specimens contained in the Ziploc re-sealable plastic bag that
were marked, tested, and presented in court were positively identified by SSO
Suguitan and PO3 Javier, who both testified under oath, as the same two rolled
sticks of dried marijuana leaves that were seized from Eanna. Raising a mere
possibility is not enough. Eanna should have shown with particularity how the drug
evidence was altered, tampered or swapped. The nature of illegal drugs as fungible
things is not new to him. He is not a stranger to prohibited drugs, claiming to be
familiar with marijuana since he is employed or attached to a drug addiction center
and has been in 22 different countries and spent hours in customs.[122] As the RTC
opined, he could have submitted for laboratory examination the tiny grains of dried
leaves and seeds that were found in his camera bag in order to prove that the
alleged sticks of marijuana seized from him were in fact flavored tobacco that he
used to smoke all the time.[123]

The same reasoning as above can be said even if we are to admit that PO3 Padayao
placed his own marking on the specimens he received from PO3 Javier and before
he turned them over to the forensic chemist. A marking made on the corpus delicti
itself is not automatically considered a form of contamination which irreversibly
alters its physical state and compromises its integrity and evidentiary value.

Where a defendant identifies a defect in the chain of custody, the prosecution must
introduce sufficient proof so that the judge could find that the item is in
substantially the same condition as when it was seized, and may admit the item if
there is a reasonable probability that it has not been changed in important
respects.[124] However, there is a presumption of integrity of physical evidence
absent a showing of bad faith, ill will, or tampering with the evidence.[125] Merely
raising the possibility of tampering or misidentification is insufficient to render
evidence inadmissible.[126] Absent some showing by the defendant that the evidence
has been tampered with, it will not be presumed that those who had custody of it
would do so.[127] Where there is no evidence indicating that tampering with the
exhibits occurred, the courts presume that the public officers have discharged their
duties properly.[128]

In this jurisdiction, it has been consistently held that considering that the integrity
of the evidence is presumed to be preserved unless there is a showing of bad faith,
ill will, or proof that the evidence has been tampered with, the defendant bears the
burden to show that the evidence was tampered or meddled with to overcome a
presumption of regularity in the handling of exhibits by the public officers and a
presumption that the public officers properly discharge their duties.[129] People v.
Agulay[130] in fact ruled that failure to comply with the procedure in Section 21 (a),
Article II of the IRR of R.A No. 9165 does not bar the application of presumption of
regularity in the performance of official duties. Thus:
The dissent agreed with accused-appellant's assertion that the police operatives
failed to comply with the proper procedure in the custody of the seized drugs. It
premised that non-compliance with the procedure in Section 21 (a), Article
II of the Implementing Rules and Regulations of Republic Act No. 9165
creates an irregularity and overcomes the presumption of regularity
accorded police authorities in the performance of their official duties. This
assumption is without merit.

First, it must be made clear that in several cases decided by the Court,
failure by the buy-bust team to comply with said section did not prevent
the presumption of regularity in the performance of duty from applying.

Second, even prior to the enactment of R.A. 9165, the requirements

contained in Section 21 (a) were already there per Dangerous Drugs Board
Regulation No. 3, Series of 1979. Despite the presence of such regulation
and its non-compliance by the buy-bust team, the Court still applied such
presumption. We held:

The failure of the arresting police officers to comply with said DDB Regulation No.
3, Series of 1979 is a matter strictly between the Dangerous Drugs Board and the
arresting officers and is totally irrelevant to the prosecution of the criminal case for
the reason that the commission of the crime of illegal sale of a prohibited drug is
considered consummated once the sale or transaction is established and the
prosecution thereof is not undermined by the failure of the arresting officers to
comply with the regulations of the Dangerous Drugs Board.[131] (Emphasis in the
original)
People v. Daria, Jr.,[132] Peop1e v. Gratil,[133] and People v. Bala[134] have followed
the Agulay ruling.

It is unfortunate that rigid obedience to procedure on the chain of custody creates a

scenario wherein the safeguards supposedly set to shield the innocent are more
often than not exploited by the guilty to escape rightful punishment.[135] The Court
reiterates that while the procedure on the chain of custody should be perfect, in
reality, it is almost always impossible to obtain an unbroken chain.[136] The chain of
custody need not be perfect for the evidence to be admissible.[137] A complete chain
of custody need not always be proved.[138] Thus, failure to strictly comply with
Section 21 (1) of R.A. No. 9165 does not necessarily render an accused person's
anest illegal or the items seized or confiscated from him inadmissible or render void
and invalid such seizure.[139] The most important factor is the preservation of the
integrity and evidentiary value of the seized item.[140]

Non-compliance with the requirements of the law is not automatically fatal to the
prosecution's case and the accused may still be held guilty of the offense charged.
This Court ratiocinated in People v. Del Monte:[141]
Under Section 3 of Rule 128 of the Rules of Court, evidence is admissible when it is
relevant to the issue and is not excluded by the law or these rules. For evidence to
be inadmissible, there should be a law or rule which forbids its reception. If there is
no such law or rule, the evidence must be admitted subject only to the evidentiary
weight that will [be] accorded [to] it by the courts. x x x

We do not find any provision or statement in said law or in any rule that will bring
about the non-admissibility of the confiscated and/or seized drugs due to non-
compliance with Section 21 of Republic Act No. 9165. The issue therefore, if there is
non-compliance with said section, is not of admissibility, but of weight - evidentiary
merit or probative value - to be given the evidence. The weight to be given by the
courts on said evidence depends on the circumstances obtaining in each
case.[142] (Italics in the original.)
We restated in People v. Moner[143] that if the evidence of illegal drugs was not
handled precisely in the manner prescribed by the chain of custody rule, the
consequence relates not to inadmissibility that would automatically destroy the
prosecution's case but rather to the weight of evidence presented for each
particular case. The saving clause under Section 21 (1) of R.A. No. 9165 recognizes
that the credibility of the prosecution's witnesses and the admissibility of other
evidence are well within the power of trial court judges to decide. The Court went
on to state that under the doctrine of separation of powers, it is important to
distinguish if a matter is a proper subject of the rules of evidence, which are
promulgated by the Court pursuant to paragraph (5), Section 5, Article VIII of the
1987 Constitution, or if it is a subject of substantive law, which is passed by an act
of Congress. Taking into account the distinction in criminal law that a substantive
law declares what acts are crimes and prescribes the punishment for committing
them while a procedural law provides or regulates the steps by which one who
commits a crime is to be punished, it was concluded that the chain of custody rule
is a matter of evidence and a rule of procedure; therefore, it is the Cmni which has
the last say regarding the appreciation of evidence.

Certainly, the chain of custody rule is a matter of evidence and a rule of procedure,
it being ultimately anchored on the weight and admissibility of evidence which the
courts have the exclusive prerogative to decide. Any missing link, gap, doubt,
challenge, break, problem, defect or deficiency in the chain of custody goes to the
weight of the evidence, not its admissibility.[144] Once admitted, the court evaluates
it and, based thereon, may accept or disregard the evidence.[145] In People v.
Sipin,[146] this Court, through the ponente, recently conveyed:
At this point, it is not amiss for the ponente to express his position regarding the
issue of which between the Congress and the Judiciary has jurisdiction to determine
sufficiency of compliance with the rule on chain of custody, which essentially boils
down to the application of procedural rules on admissibility of evidence. In this
regard, the ponente agrees with the view of Hon. Associate Justice Teresita J.
Leonardo-De Castro in People v. Teng Moner y Adam that "if the evidence of illegal
drugs was not handled precisely in the manner prescribed by the chain of custody
rule, the consequence relates not to inadmissibility that would automatically
destroy the prosecution's case but rather to the weight of evidence presented for
each particular case." As aptly pointed out by Justice Leonardo-De Castro, the
Court's power to promulgate judicial rules, including rules of evidence, is no longer
shared by the Court with Congress.

The ponente subscribes to the view of Justice Leonardo-De Castro that the chain of
custody rule is a matter of evidence and a rule of procedure, and that the Court has
the last say regarding the appreciation of evidence. Evidentiary matters are indeed
well within the powers of courts to appreciate and rule upon, and so, when the
courts find appropriate, substantial compliance with the chain of custody rule as
long as the integrity and evidentiary value of the seized items have been preserved
may wanant the conviction of the accused.

The ponente further submits that the requirements of marking the seized
items, conduct of inventory and taking photograph in the presence of a
representative from the media or the DOJ and a local elective official, are
police investigation procedures which call for administrative sanctions in
case of non-compliance. Violation of such procedure may even merit
penalty under R.A. No. 9165, to wit:
Section 29. Criminal Liability for Planting of Evidence. - Any person who is found
guilty of "planting" any dangerous drug and/or controlled precursor and essential
chemical, regardless of quantity and purity, shall suffer the penalty of death.

Section 32. Liability to a Person Violating Any Regulation Issued by the Board. -
The penalty of imprisonment ranging from six (6) months and one (1) day to four
(4) years and a fine ranging from Ten thousand pesos (P10,000.00) to Fifty
thousand pesos (P50,000.00) shall be imposed upon any person found violating any
regulation duly issued by the Board pursuant to this Act, in addition to the
administrative sanctions imposed by the Board.
However, non-observance of such police administrative procedures should not
affect the validity of the seizure of the evidence, because the issue of chain of
custody is ultimately anchored on the admissibility of evidence, which is exclusively
within the prerogative of the courts to decide in accordance with the rules on
evidence. (Emphasis and italics in the original)
Strict compliance with the requirements of Section 21 (1) of R.A. No. 9165 may not
always be possible under field conditions; the police operates under varied
conditions, many of them far from ideal, and cannot at all times attend to all the
niceties of the procedures in the handling of confiscated evidence.[147] Like what
have been done in past cases, we must not look for the stringent step-by-step
adherence to the procedural requirements; what is important is to ensure the
preservation of the integrity and the evidentiary value of the seized items, as these
would detennine the guilt or innocence of the accused.[148] The identity of the
confiscated drugs is preserved when the drug presented and offered as evidence in
court is the exact same item seized from the accused at the time of his arrest,
while the preservation of the drug's integrity means that its evidentiary value is
intact as it was not subject to planting, switching, tampering or any other
circumstance that casts doubt as to its existence.[149]

To assess an allegedly faulty chain of custody, the court looks for ampie
corroborative evidence as to the evidence's acquisition and subsequent
custody.[150] Before admitting or excluding real evidence, it must consider the
nature of the evidence, and the surrounding circumstances, including presentation,
custody and probability of tampering or alteration.[151] If, after considering these
factors, it is determined that the evidence is substantially in the same condition as
when the crime was committed, the evidence may be admitted.[152] The court need
not rule out every possibility that the evidence underwent alteration; it needs only
to find that the reasonable probability is that the evidence has not been altered
in any material aspect.[153] Physical evidence is admissible when the possibilities of
misidentification or alteration are eliminated, not absolutely, but as a matter of
reasonable probability.[154] All that is required is that the evidence m question was
the same as that involved in the offense and that it 1s substantially unchanged.[155]

Courts are reminded to tread carefully before giving full credit to the testimonies of
those who conducted the illegal drug operations and must thoroughly evaluate and
differentiate those errors that constitute a simple procedural lapse from those that
amount to a gross, systematic, or deliberate disregard of the safeguards drawn by
the law and the rules.[156] In the performance of this function, among the
evidentiary rules to apply are the following: test in measuring the value of a
witness' testimony, appreciation of inculpatory facts, positive and negative
evidence, one-witness rule, best evidence rule, suppression of evidence,
presumption of regular performance of official duty, rules on circumstantial
evidence and conspiracy, and (non) presentation of poseur buyer or marked
money.[157]
WHEREFORE, premises considered, the February 9, 2016 Decision and the July 21,
2016 Resolution of the Court of Appeals in CA-G.R. CR No. 36412, which affirmed
the November 22,2013 Decision of the Regional Trial Court, Branch 13, Laoag City,
in Criminal Case No. 15585-13, finding accused-appellant Eanna O'Cochlain guilty
for violation of Section 11, Article II of Republic Act No. 9165, are AFFIRMED.

SO ORDERED.

G.R. No. 128222 June 17, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CHUA HO SAN @ TSAY HO SAN, accused-appellant.

DAVIDE, JR., C.J.:

Chua Ho San @ Tsay Ho San (hereafter CHUA) prays for his acquitttal and the reversal of the
judgment of 10 February 1997 of the Regional Trial Court (RTC) of San Fernando, La Union, Branch
66, finding him guilty of transporting, without appropriate legal authority, the regulated substance
methamphetamine hydrochloride, in violation of Section 15, 1 Article III of Republic Act No. 6425,
otherwise known as the Dangerous Drugs Act of 1972 as further amended by R.A. No. 7659,2 and
sentencing him to "die by lethal injection." In view thereof, the judgement was brought to this Court
for automatic review pursuant to Article 47 of the Revised Penal Code, as amended by Section 11 of
R.A. No. 7659.

In response to reports of rampant smuggling of firearms and other contraband, Jim Lagasca Cid
(hereafter CID), as Chief of Police of the Bacnotan Police Station, of La Union began patrolling the
Bacnotan coastline with his officers. While monitoring the coastal area of Barangay Bulala on 29
March 1995, he intercepted a radio call at around 12:45 p.m. from Barangay Captain Juan Almoite
(hereafter ALMOITE) of Barangay Tammocalao requesting police assistance regarding an unfamiliar
speedboat the latter had spotted. According to ALMOITE, the vessel looked different from the boats
ordinarily used by fisherfolk of the area and was poised to dock at Tammocalao shores. CID and six
of his men led by his Chief Investigator, SPO1 Reynoso Badua (hereafter BADUA), proceeded
forthwith to Tammocalao beach and there conferred with ALMOITE. CID then observed that the
speedboat ferried a lone male passenger. As it was routine for CID to deploy his men in strategic
places when dealing with similar situations, he ordered his men to take up positions thirty meters
from the coastline. When the speedboat landed, the male passenger alighted, and using both hands,
carried what appeared a multicolored strawbag. He then walked towards the road. By this time,
ALMOITE, CID and BADUA, the latter two conspicuous in their uniform and issued side-arms,
became suspicious of the man as he suddenly changed direction and broke into a run upon seeing
the approaching officers. BADUA, however, prevented the man from fleeing by holding on to his right
arm. Although CID introduced themselves as police officers, the man appeared impassive. Speaking
in English, CID then requested the man to open his bag, but he seem not to understand. CID thus
tried speaking Tagalog, then Ilocano, but still to no avail. CID then resorted to what he termed "sign
language;" he motioned with his hands for the man to open the bag. This time, the man apparently
understood and acceded to the request. A search of the bag yielded several transparent plastic
packets containing yellowish crystalline substances. CID then gestured to the man to close the bag,
which he did. As CID wished to proceed to the police station, he signaled the man to follow, but the
latter did not to comprehend. Hence, CID placed his arm around the shoulders of the man and
escorted the latter to the police headquarters.

At the police station, CID surmised, after having observed the facial features of the man, that he was
probably Taiwanese. CID then "recited and informed the man of his constitutional rights" to remain
silent, to have the assistance of a counsel, etc. Eliciting no response from the man, CID ordered his
men to find a resident of the area who spoke Chinese to act as an enterpreter. In the meantime,
BADUA opened the bag and counted twenty-nine (29) plastic packets containing yellowish
crystalline substance which he and CID suspected was shabu. The interpreter, Mr. Go Ping Guan,
finally arrived, through whom the man was "apprised of his constitutional rights." The police
authorities were satisfied that the man and the interpreter perfectly understood each other despite
their uncertainty as to what language was spoken. But when the policemen asked the man several
questions, he retreated to his obstinate reticence and merely showed his I.D. with the name Chua
Ho San printed thereon. CHUA's bag and its contents were sent to the PNP Crime Laboratory at
Camp Diego Silang, Carlatan, San Fernando, La Union for laboratory examination. In the meantime,
CHUA was detained at the Bacnotan Police Station. 1âwphi1.nêt

Later that same day, Police Chief Inspector and Forensic Chemist Theresa Ann Bugayong Cid of the
Philippine National Police, Region I, received a letter request3 from CID — incidentally her husband
— to conduct a laboratory examination of twenty-nine (29) plastic packets placed inside a
multicolored strawbag. In her Chemistry Report No. D-025-95,4 she stated that her qualitative
examination established the contents of the plastic packets, weighing 28.7 kilos, to be positive of
methamphetamine hydrochloride or shabu, a regulated drug.

CHUA was initially charged with illegal possession of methaphetamine hydrochloride before the RTC
which docketed the case as Criminal Case No. 4037. However, pursuant to the recommendation of
the Office of the Provincial Prosecutor, La Union, that the facts of the case could support an
indictment for illegal transport of a regulated drug, the information was subsequently amended to
allege that CHUA "willfully, unlawfully and feloniously transpor(ted) 28.7 kilos of [m]ethamphetamine
[h]ydrochloride (shabu) without the necessary permit or authority to transport the same" in violation
of Section 15, Article III of R.A. 6425 as amended by R.A. 7659.

At his arraignment on 31 July 1995, CHUA entered a plea of not guilty. The RTC was satisfied that
CHUA understood the amended information read to him in Fukien by the Fukien-speaking
interpreter, Thelma Sales Go.

Thereafter, the RTC exerted all efforts to obtain the services of a Taiwanese Interpreter through the
auspices of the Department of Foreign Affairs. However, it was only after directing the request to the
Taipei Economic and Cultural Office in the Philippines that interpreters were assigned to CHUA.

Trial finally ensued. The State presented evidence tending to establish the above narration of facts
which were culled chiefly from the testimony of CID, its first witness, and whose testimony, in turn,
was substantially corroborated by witnesses BADUA and ALMOITE.

Experts witness Theresa Ann Cid, confirmed the entries of her chemistry report in that the contents
of the 29 plastic packets weighing 28.7 kilos sent to her for chemical analysis were pure,
unadulterated methamphetamine hydrochloride or shabu. She also explained that they were
unwashed, hence they appeared yellowish.

For the defense, CHUA testified in his own behalf through interpreter Steven Yu. He disclosed that
he hails from Taiwan and was employed in a shipbuilding and repairing company. On 21 March
1995, he was instructed by his employer Cho Chu Rong (hereafter RONG) to board the latter's 35-
tonner ship which would embark for Nan Au Port, Mainland China where they would buy fish. Upon
arrival at their destination, RONG left the ship, came back without the fish, but with two bags, the
contents of which he never divulged to CHUA. RONG then showed to CHUA a document
purportedly granting them authority to fish on Philippine waters. So they sailed towards the
Philippines and reached Dagupan, Pangasinan on 29 March 1995. At around 10:30 a.m., they
disembarked on a small speedboat with the two bags RONG brought with him from China. While,
sailing, RONG made several phone calls using his mobile phone. CHUA heard RONG asked the
person on the other side of the line if he could see the speedboat they were riding. Apparently, the
person on shore could not see them so they cruised over the waters for about five hours more when
finally, low on fuel and telephone battery, they decided to dock. CHUA anchored the boat while
RONG carried the bags to shore. The tasks completed, RONG left to look for a telephone while
CHUA rested and sat one and half (1 1/2) meters away from one bag. A child thereafter pointed out
to him that one bag was missing much to RONG's dismay when he learned of it. When a crowd
started to mill around them, the police arrived. CHUA then realized that RONG was nowhere to be
found. The police immediately approached CHUA, and with nary any spoken word, only gestures
and hand movements, they escorted him to the precinct where he was handcuffed and tied to a
chair. Later, the police, led by an officer who CHUA guessed as the Chief of Police arrived with the
motor engine of the speedboat and a bag. They presented the bag to him, opened it, inspected and
weighed the contents, then proclaimed them as methaphetamine hydrochloride.

CHUA denounced the prosecution's story as a distortion of the truth. He denied he was ever favored
with an interpreter or informed of his "constitutional rights," particularly of his right to counsel.
Consequently, his arrest was tainted with illegality and the methamphetamine hydrochloride found in
the bag should have been regarded inadmissible as evidence. He also maintained that CID never
graced the occasion of his setting foot for the first time at Tammocalao beach. BADUA certainly
never prevented him from running away, as such thought failed to make an impression in his mind.
Most significantly, he denied ownership and knowledge of the contents of the bag, emphasizing that
RONG alone exercised dominion over the same.

Elmer Parong, (hereafter PARONG) a Sangguniang Bayan member, recalled that on the date in
question, he arrived at the beach with the police. He saw CHUA standing with a bag beside him. He
also remembered hearing from the people congregating at the beach that CHUA arrived with a
companion and a certain policeman Anneb had chased the latter's car. He additionally claimed that
when the crowd became unruly, the police decided to bring CHUA to police headquarters. There, the
mayor took charge of the situation — he opened CHUA's bag with the assistance of the police, he
called for a forensic chemist surnamed CID to take a sample of the contents of the bag, and he
ordered his officials to find an interpreter. Throughout the proceedings, photographers were busy
taking pictures to document the event.

Last to testify was Arsenio CRAIG, a farmer and resident of Tammocalao who narrated that he was
standing with CHUA on the beach when two men and a lady arrived. They were about to get a bag
situated near CHUA when they detected the arrival of the local police. They quickly disappeared.
CRAIG then noticed ALMOITE and PARONG at the beach but not CID.

In a decision promulgated on 10 February 1997, the RTC found that the prosecution successfully
discharged its burden of proving that CHUA transported 28.7 kilos of methamphetamine
hydrochloride without legal authority to do so. Invoking People v. Tagliben5 as authority, the RTC
characterized the search as incidental to a valid in flagrante delicto arrest, hence it allowed the
admission of the methamphetamine hydrochloride as corpus delicti. The RTC also noted the futility
of informing CHUA of his constitutional rights to remain silent, and to have competent and
independent counsel preferably of his own choice, considering the language barrier and the
observation that such irregularity was "rectified when accused was duly arraigned and . . .
(afterwards) participated in the trial of this case." The RTC then disregarded the inconsistencies and
contradictions in the testimonies of the prosecution witnesses as these referred to minor details
which did not impair the credibility of the witnesses or tarnish the credence conferred on the
testimonies thus delivered.

The RTC also believed that CHUA conspired not only with his alleged employer RONG and the
Captain of the 35-tonner vessel in the illegal trade of prohibited drugs on Philippine shores, but with
several other members of an organized syndicate bent on perpetrating said illicit traffic. Such
predilection was plainly evident in the dispositive portion, to wit:

WHEREFORE, and in view of all the foregoing, as proven and established by

convincing and satisfactory evidence that the accused had conspired and acted in
concert with one Cho Chu Rong, not to mention Chen Ho Fa, the Skipper of the 35-
tonner ship they used in coming to the Country from China and Taiwan, this Court
finds the accused Chua Ho San @ Tsay Ho San guilty beyond reasonable doubt of
the offense of Violation of Sec. 15, Art. III of R.A. No. 6425, as amended by R.A. No.
7659 as charged in the Information, and considering the provisions of Sec. 20 of R.A.
No. 7659 that the maximum penalty shall be imposed if the quantity
sold/possessed/transported is "200 grams or more" in the case of Shabu, and
considering, further that the quantity involved in this case is 28.7 kilograms which is
far beyond the weight ceiling specified in said Act, coupled with the findings of
conspiracy or that accused is a member of an organized syndicated crime group, this
Court, having no other recourse but to impose the maximum penalty to accused, this
Court hereby sentences the said accused Chua Ho San @ Tsay Ho San to die by
lethal injection; to pay a fine of Ten Million Pesos (P10,000,000.00); and to pay the
costs.

The Court hereby orders Director Ricareido [sic] Sarmiento of the Philippine National
Police to immediately form an investigating Committee to be composed by [sic] men
of unimpeachable integrity, who will conduct an exhaustive investigation regarding
this case to determine whether there was negligence or conspiracy in the escape of
Cho Chu Rong and the two (2) or three (3) persons who approached the accused in
the seashore of Tammocalao, Bacnotan, La Union, and attempted to take the
remaining bag from accused, as well as the whereabouts of the other bag; and to
furnish this Court a copy of the report/result of the said investigation in order to show
compliance herewith sixty (60) days from receipt hereof.

The confiscated 28.7 kilograms of Methaphetamine Hydrochloride or Shabu is

ordered turned over immediately to the Dangerous Drugs Board for destruction in
accordance with the law.

The fiberglass boat with its motor engine is hereby ordered confiscated in favor of the
government and to be turned over to the Philippine National Police, La Union
Command, for use in their Bantay-Dagat operations against all illegal seaborne
activities.
 SO ORDERED. 6

Before this Court, CHUA posits that the RTC erred in (1) admitting as competent evidence the 29
plastic packets of methamphetamine hydrochloride since they were indubitably "forbidden fruits;" (2)
granting weight and credence to the testimonies of prosecution witnesses despite glaring
inconsistencies on material points; and in (3) appreciating conspiracy between him and an organized
syndicate in the illicit commerce of prohibited drugs since this was not alleged in the information.

The Solicitor General traverses CHUA's contentions by asserting that: (1) the search was licitly
conducted despite the absence of search and seizure warrants as circumstances immediately
preceding to and comtemporaneous with the search necessitated and validated the police action;
and (2) that there was an effective and valid waiver of CHUA's right against unreasonable searches
and seizures since he consented to the search.

We reverse the RTC.

Enshrined in the Constitution is the inviolable right to privacy home and person. It explicitly ordains
that people have the right to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures of whatever nature and for any purpose.7 Inseparable, and not
merely corollary or incidental to said right and equally hallowed in and by the Constitution, is the
exclusionary principle which decrees that any evidence obtained in violation of said right is
inadmissible for any purpose in any proceedings.8

The Cosntitutional proscription against unreasonable searches and seizures does not, of course,
forestall reasonable searches and seizure. What constitutes a reasonable or even an unreasonable
search in any particular case is purely a judicial question, determinable from a consideration of the
circumstances involved.9 Verily, the rule is, the Constitution bars State intrusions to a person's body,
personal effects or residence except if conducted by virtue of a valid of a valid search warrant issued
in compliance with the procedure outlined on the Constitution and reiterated in the Rules of Court;
"otherwise such search and seizure become "unreasonable" within the meaning of the
aforementioned constitutional provision."10 This interdiction against warrantless searches and
seizures, however, is not absolute and such warrantless searches and seizures have long been
deemed permissible by jurisprudence11 in instances of (1) search of moving vehicles, (2) seizure in
plain view, (3) customs searches, (4) waiver or consent searches, (5) stop and frisk situations (Terry
search),12 and (6) search incidental to a lawful arrest. The last includes a valid warrantless search
and seizure pursuan to an equally valid warrantless arrest, for, while as a rule, an arrest is
considered legitimate if effected with a valid wararnt of arrest, the Rules of Court recognize
permissible warrantless arrests, to wit: (1) arrests in flagrante delicto, (2) arrests effected in hot
pursuit, and (3) arrests of escaped prisoners. 13

This Court is therefore tasked to determine whether the warrantless arrest, search and seizure
conducted under the facts of the case at bar constitute a valid exemption from the warrant
requirement. Expectedly and quite understandably, the prosecution and the defense painted
extremely divergent versions of the incident. But this Court is certain that CHUA was arrested and
his bag searched without the benefit of a warrant.

In cases of in fragrante delicto, arrests, a peace officer or a private person may without a warrant,
arrest a person, when, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense. The arresting officer, therefore, must have
personal knowledge of such facts14 or as recent case law15 adverts to, personal knowledge of facts or
circumstances convincingly indicative or constitutive of probable cause. The term probable cause
had been understood to mean a reasonable ground of suspicion supported by circumstances
sufficiently strong in themselves to warrant a cautious man's belief that the person accused is guilty
of the offense with which he is charged.16 Specifically with respect to arrests, it is such facts and
circumstances which would lead a reasonably discreet and prudent man to believe that an offense
has been committed by the person sought to be
arrested. 17 In People v. Montilla,18 the Court acknowledged that "the evidentiary measure for the
propriety of filing criminal charges, and correlatively, for effecting warrantless arrest, has been
reduced and liberalized." Noting that the previous statutory and jurisprudential evidentiary standard
was "prima facie evidence" and that it had been dubiously equated with probable cause, the Court
explained:

[F]elicitously, those problems and confusing concepts (referring to prima

facie evidence and probable cause) were clarified and set aright, at least on the
issue under discussion, by the 1985 amendment of the Rules of Court which
provides in Rule 112 thereof that the quantum of evidence required in preliminary
investigation is such evidence as suffices to "engender as well founded belief" as to
the fact of the commission of the crime and the respondent's probable guilt thereof. It
has the same meaning as the related phraseology used in other parts of the same
Rule, that is, that the investigating fiscal "finds cause to hold the respondent for trial,"
or where "a probable cause exists." It should, therefore, be in that sense, wherein the
right to effect a warrantless arrest should be considered as legally authorized."
(emphasis supplied)19

Guided by these principles, this Court finds that there are no facts on record reasonably suggestive
or demonstrative of CHUA's participation in on going criminal enterprise that could have spurred
police officers from conducting the obtrusive search. The RTC never took the pains of pointing to
such facts, but predicated mainly its decision on the finding that was "accused was caught red-
handed carrying the bagful of [s]habu when apprehended." In short, there is no probable cause. At
least in People v. Tangliben, the Court agreed with the lower court's finding that compelling reasons
(e.g., accused was acting suspiciously, on the spot identification by an informant that accused was
transporting prohibitive drug, and the urgency of the situation) constitutive of probable cause
impelled police officers from effecting an in flagrante delicto arrest. In the case at bar, the Solicitor
General proposes that the following details are suggestive of probable cause — persistent reports of
rampant smuggling of firearm and other contraband articles, CHUA's watercraft differing in
appearance from the usual fishing boats that commonly cruise over the Bacnotan seas, CHUA's
illegal entry into the Philippines (he lacked the necessary travel documents or visa), CHUA's
suspicious behavior, i.e. he attempted to flee when he saw the police authorities, and the apparent
ease by which CHUA can return to and navigate his speedboat with immediate dispatch towards the
high seas, beyond the reach of Philippine laws.

This Court, however, finds that these do not constitute "probable cause." None of the telltale
clues, e.g., bag or package emanating the pungent odor of marijuana or other prohibited
drug,20 confidential report and/or positive identification by informers of courier(s) of prohibited drug
and/or the time and place where they will transport/deliver the same,21 suspicious demeanor or
behavior 22 and suspicious bulge in the waist23 — accepted by this Court as sufficient to justify a
warrantless arrest exists in this case. There was no classified information that a foreigner would
disembark at Tammocalao beach bearing prohibited drug on the date in question. CHUA was not
identified as a drug courier by a police informer or agent. The fact that the vessel that ferried him to
shore bore no resemblance to the fishing boats of the area did not automatically mark him as in the
process of perpetrating an offense. And despite claims by CID and BADUA that CHUA attempted to
flee, ALMOITE testified that the latter was merely walking and oblivious to any attempt at
conversation when the officers approached him. This cast serious doubt on the truthfulness of the
claim, thus:
 Q: How far were you when the accused put the bag on his sholder?

A: We were then very near him about three meters away from the
male person carrying the bag.

Q: To what direction was he facing when he put the bag on his

shoulder?

A: To the east direction.

Q: In relation to you, where were you.

A: With the company of Sgt. Reynoso and Maj. Cid we approached

the accused and when Maj. Cid went near him, he spoke in
Tagalong, English and Ilocano which accused did not understand
because he did not respond.

Q: When Maj. Cid was talking, what was the accused doing at that
time?

A: He was walking.

Q: To what direction he was walking?

A: He was walking to the east direction. (sic)

Q: He was walking away from you or going near you?

A: He was going away from us. That is why Sgt. Reynoso held the
right arm of the accused.

Q: Was Sgt. Badua able to hold the right arm of the accused?

A: Yes sir and he stopped.24

True, CHUA entered Philippine territory without a visa. This was not obvious to the police. But
gossamer to the officers' sense perception and view were CHUA disembarking from a speedboat,
CHUA walking casually towards the road, and CHUA carrying a multicolored strawbag. These acts
did not convey any impression that he illegally entered Philippine shores. Neither were these overt
manifestations of an ongoing felonious activity nor of CHUA's criminal behevior as clearly
established in CID's testimony, thus:

Q Was the accused committing a crime when you introduced

yourselves:

A No, sir.

Q No, so there was no reason for you to approach the accused

because he was not doing anything wrong?
 A No, sir, that is our objective, to approach the person and if ever or
whatever assistance that we can give we will give.25

The search cannot therefore be denominated as incidental to an arrest. While a contemporaneous

search of a person arrested may be effected to deliver dangerous weapons or proofs or implements
used in the commission of the crime and which search may extend to the area within his immediate
control where he might gain possession of a weapon or evidence he can destroy,26 a valid arrest
must precede the search. The process cannot be reversed.

In a search incidental to a lawful arrest, as the precedent arrest determines the

validity of the incidental search, the legality of the arrest is questioned in a large
majority of these cases, e.g., whether an arrest was merely used as a pretext for
conducting a search. In this instance, the law requires that there be first a lawful
arrest before a search can be made — the process cannot be reversed.27

To reiterate, the search was not incidental to an arrest. There was no warrant of arrest and
the warrantless arrest did not fall under the exemptions allowed by the Rules of Court28 as
already shown. Fom all indications, the search was nothing but a fishing expedition. It is
worth mentioning here that after introducing themselves, the police officcers immediately
inquired about the contents of the bag. What else could have impelled the officers from
displaying such inordinate interest in the bag but to ferret out evidence and discover if a
felony had indeed been committed by CHUA — in effect to "retroactively establish probable
cause and validate an illegal search and seizure."

The State then attempted to persuade this Court that there was a consented search, a legitimate
waiver of the constitutional guarantee against obtrusive searches. It is fundamental, however, that to
constitute a waiver, it must first appear that the right exists; secondly, that the person involved had
knowledge, actual or constructive, of the existence of such a right; and lastly, that said person had
an actual intention to relinquish the right.29 CHUA never exhibited that he knew, actually or
constructively of his right against unreasonable searches or that he intentionally conceded the same.
This can be inferred from the manner by which the search performed, thus:

Q Together with your Chief Investigator, what was the first thing that
you did when you approached him (CHUA)?

A We introduced ourselves as police officers, sir.

Q Okey, in the first place why did you introduce yourselves?

A That is normal practice in our part, sir.

xxx xxx xxx

Q If it is possible. Okey (sic) now, after introducing yourselves what

did you do?

A He did not answer me and he did not utter any word,

Q When he did not utter any word. What else did he do?

A I asked again a question that if he can open his bag sir.

Q And did he understand your question when you requested him to
open his bag?

A No, sir, there is no answer.

Q No answer?

A Yes, sir, no answer.

Q And when there was no answer what did you do next?

A I used sign language sir.

Q Will you demonstrate to this Honorable Court how you

demonstrated that sign language of opening the bag mr. (sic)
witness?

A I pointed to the zipper of the bag and then made an action like this
sir.

xxx xxx xxx

SHERIFF:

The witness demonstrating (sic) by pointing to the straw bag and then
manifesting a sign to open the zipper of the straw bag moving his
right hand from left to right or from the opening to the end of the
zipper.

COURT: From the start of the zipper where you open it up to the end
of the zipper.

Witness: Yes, sir, and then I made a motion like this.

(The witness repeating the motion described on record.)

COURT: Did you open that personally?

WITNESS:

A No, your honor.

Q Now, mr. (sic) witness, why did you request the accused to open
the bag?

A Because it is our duty also to inspect his belongings sir.

Q Why, why was it — no, I reform my question your honor. Is it

normal procedure for you to examine anybody or to request anybody
to open his bag?
 A The fact that he was a foreigner, sir, it is also our duty to inspect
the baggage, it is our routine duty of a police (sic), sir.

Q Is that the normal duty of a police officer to request a person to

open his bag?

A yes, sir.

Q Okey, (sic) you did not ask the accused, mr. (sic) witness, to open
his bag?

A No, sir.

Q But you simply requested him to open the nag?

A Yes, sir.30

CHUA obviously failed to understand the events that overran and overwhelmed him. The police
officers already introduced themselves to CHUA in three languages, but he remained completely
deadpan. The police hence concluded that CHUA failed to comprehend the three languages. When
CHUA failed to respond again to the police's request to open the bag, they resorted to what they
called "sign language." They claimed that CHUA finally understood their hand motions and gestures.
This Court disagrees. If CHUA could not understand what was orally articulated to him, how could he
understand the police's "sign language." More importantly, it cannot logically be inferred from his
alleged cognizance of the "sign language" that he deliberately, intelligently, and consciously waived
his right against such an intrusive search. This Court is not unmindful of cases upholding the validity
of consented warrantless searches and seizure. But in these cases, the police officers' request to
search personnel effects was orally articulated to the accused and in such language that left no
room for doubt that the latter fully understood what was requested. In some instances, the accused
even verbally replied to the request demonstrating that he also understood the nature and
consequences of such request.31

It was eventually discovered that the bag contained the regulated subtance. But this is a trifling
matter. If evidence obtained during an illegal search even if tending to confirm or actually confirming
initial information or suspicion of felonious activity is absolutely considered inadmissible for any
purpose in any proceeding, the same being the fruit of a poisonous trees32 how much more of
"forbidden fruits" which did not confirm any initial suspicion of criminal enterprise as in this case —
because the police admitted that they never harbored any initial suspicion. Casting aside the
regulated substance as evidence, the remaining evidence on record are insufficient, feeble and
ineffectual to sustain CHUA's conviction.

Indeed, the likelihood of CHUA having actually transported methamphetamine hydrochloride cannot
be quickly dispelled. But the constitutional guarantee against unreasonable searches and seizures
cannot be so carelessly disregarded, as overzealous police officers are sometimes wont to do.
Fealty to the Constitution and the rights it guarantees should be paramount in their minds, otherwise
their good intentions will remain as such simply because they have blundered. "There are those who
say that . . . 'the criminal is to go free because the constable has blundered.'. . . In some cases this
will undoubtedly be the result. But . . . 'there is another consideration — the imperative of judicial
integrity . . . The criminal goes free, if he must, but it is the law that sets him free. Nothing can
destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of
the charter of its own existence."33
As to the averred glaring inconsistencies in the testimonies of the posecution witnesses, this Court
considers them trivial as they refer to insignificant details which will not affect the outcome of the
case. On a passing note, this Court calls the attention of the trial court regarding its erroneous
appreciation of conspiracy. This aggravating circumstance is without question unsupported by the
records. Conspiracy was not included in the indictment nor raised in the pleadings or proceedings of
the trial court. It is also fundamental that conspiracy must be proven just like any other criminal
accusation, that is, independently and beyond reasonable doubt.34

WHEREFORE, for all the foregoing, the decision of the Regional Trial Court, Branch 66, San
Fernando, La Union in Criminal Case No. 4037 is hereby REVERSED and SET ASIDE and
accused-appellant CHUA HO SAN @ TSAY HO SAN is hereby ACQUITTED of the crime charged,
the evidence not being sufficient to establish his guilt beyond reasonable doubt.

Costs de oficio.

SO ORDERED.

SECOND DIVISION

G.R. No. 144037. September 26, 2003

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. NOEL

TUDTUD y PAYPA and DINDO BOLONG y NARET, accused-
appellants.

DECISION

Tinga, J.:

. It is desirable that criminals should be detected, and to that

end that all available evidence should be used. It also is
desirable that the government should not itself foster and
pay for other crimes, when they are the means by which the
evidence is to be obtained. If it pays its officers for having
got evidence by crime, I do not see why it may not as well
pay them for getting it in the same way, and I can attach no
importance to protestations of disapproval if it knowingly
accepts and pays and announces that it will pay for the
fruits. We have to choose, and for my part I think it a less
evil that some criminals should escape than that the
government should play an ignoble part.
So wrote Justice Oliver Wendell Holmes in Olmstead v.
U.S.1 On this occasion, this Court is made to choose between
letting suspected criminals escape or letting the government
play an ignoble part.

Sometime during the months of July and August 1999, the

Toril Police Station, Davao City received a report from a
civilian asset named Bobong Solier about a certain Noel
Tudtud.2 Solier related that his neighbors have been
complaining about Tudtud, who was allegedly responsible for
the proliferation of marijuana in their area.3 cräläwvirtualibr äry

Reacting to the report, PO1 Ronald Desierto, PO1 Ramil

Floreta and their superior, SPO1 Villalonghan,4 all members
of the Intelligence Section of the Toril Police Station,
conducted surveillance in Soliers neighborhood in Sapa,
Toril, Davao City.5 For five days, they gathered information
and learned that Tudtud was involved in illegal
drugs.6 According to his neighbors, Tudtud was engaged in
selling marijuana.7 cräläw virtualibrär y

On August 1, 1999, Solier informed the police that Tudtud

had headed to Cotabato and would be back later that day
with new stocks of marijuana.8 Solier described Tudtud as
big-bodied and short, and usually wore a hat.9 At around
4:00 in the afternoon that same day, a team composed of
PO1 Desierto, PO1 Floreta and SPO1 Villalonghan posted
themselves at the corner of Saipon and McArthur Highway to
await Tudtuds arrival.10 All wore civilian clothes.11 cräläw virtualibrär y

About 8:00 later that evening, two men disembarked from a

bus and helped each other carry a carton12 marked King
Flakes.13 Standing some five feet away from the men, PO1
Desierto and PO1 Floreta observed that one of the men fit
Tudtuds description.14 The same man also toted a plastic
bag.15cräläwvirtu alibräry

PO1 Floreta and PO1 Desierto then approached the suspects

and identified themselves as police officers.16 PO1 Desierto
informed them that the police had received information that
stocks of illegal drugs would be arriving that night. 17 The
man who resembled Tudtuds description denied that he was
carrying any drugs.18 PO1 Desierto asked him if he could see
the contents of the box.19 Tudtud obliged, saying, it was
alright.20 Tudtud opened the box himself as his companion
looked on.21 cräläw virtualibrär y

The box yielded pieces of dried fish, beneath which were two
bundles, one wrapped in a striped plastic bag22 and another
in newspapers.23 PO1 Desierto asked Tudtud to unwrap the
packages.24 They contained what seemed to the police
officers as marijuana leaves.25 cräläwvirtualibr äry

The police thus arrested Tudtud and his companion, informed

them of their rights and brought them to the police
station.26 The two did not resist.27 cräl äwvirtualibr äry

The confiscated items were turned over to the Philippine

National Police (PNP) Crime Laboratory for
examination.28 Forensic tests conducted by Police Chief
Inspector Noemi Austero, forensic chemist of the PNP Crime
Laboratory, Region XI, on specimens taken from the
confiscated items confirmed the police officers suspicion. The
plastic bag contained 3,200 grams of marijuana leaves while
the newspapers contained another 890 grams.29 Police Chief
Inspector Austero reduced her findings in her report,
Physical Sciences Report No. D-220-99 dated 2 August
1999.30cräläw virtualibräry

Noel Tudtud and his companion, Dindo Bulong, were

subsequently charged31 before the Regional Trial Court (RTC)
of Davao City with illegal possession of prohibited
drugs.32 Upon arraignment, both accused pleaded not
guilty.33 The defense, however, reserved their right to
question the validity of their arrest and the seizure of the
evidence against them.34

Trial ensued thereafter.

The prosecution presented five witnesses, namely, arresting
officers PO1 Desierto and PO1 Floreta, their civilian
informant Bobong Solier, forensic chemist Police Chief
Inspector Noemi Austero, and SPO3 Nicolas Algabre, exhibit
custodian of the PNP Crime Laboratory. Said witnesses
testified to the foregoing narration of facts.

The accused, denying the charges against them, cried frame-

up.

Noel Tudtud recalled that on August 1, 1999 he had gone to

Kabacan, North Cotabato to sell pairs of Levis pants, which
was his sideline.35 At about 5:00 in the afternoon, he
returned to Davao City by bus.36 Upon reaching Toril, Tudtud,
along with less than ten passengers, got down the bus.37 chanroblesvirtuallawlibrar y

Suddenly, a man who identified himself as a police officer

approached him, pointing a .38 caliber revolver.38 The man
told him not to run.39 Tudtud raised his arms and asked, Sir,
what is this about?40 The man answered that he would like to
inspect the plastic bag Tudtud was carrying, and instructed
Tudtud to open the bag, which revealed several pairs of Levis
pants.41
cräläwvirtualibräry

The man then directed Tudtud to open a carton box some

two meters away.42 According to Tudtud, the box was
already there when he disembarked the bus.43 Tudtud told
the man the box was not his, but proceeded to open it out of
fear after the man again pointed his revolver at
him.44 Tudtud discovered pieces of dried fish, underneath
which was something wrapped in cellophane.45 cräläwvirtualibräry

What is that? the man asked.46 Tudtud replied that he did not
know.47 Without even unwrapping the cellophane, the man
said it was marijuana and abruptly handcuffed Tudtud.48 cräläwvirtualibräry

Simultaneously, another man was pointing a firearm at

Dindo Bolong at the other side of the street, some eight
meters from Tudtud.49 cräläw virtualibrär y
Bolong recounted that he was on his way to a relative in
Daliao after attending a cousins wedding in Hagonoy, Davao
del Sur when he was accosted.50 After alighting the bus,
Bolong crossed the street.51 Someone then approached him
and pointed a gun at him.52 The man ordered him not to
move and handcuffed him.53 Bolong asked why he was being
arrested but the man just told him to go with them.54 cräläwvirtualibrär y

The suspects were then taken to the police station where,

they would later claim, they met each other for the first
time.55
cräläwvirtu alibräry

Assailing the credibility of informant Bobong Solier, the

defense offered the testimonies of Felicia Julaton,56 Branch 3
Clerk of Court, Claudio Bohevia,57 Branch 7 Clerk of Court,
and Mercedita Abunda,58 Branch 9 Utility Clerk, all of the
Davao City Municipal Trial Circuit Court. They testified and
presented court documents showing that one Bobo or
Bobong Ramirez was charged in their respective branches
with various crimes, specifically, light threats, less serious
physical injuries and robbery. The defense asserted that the
Bobo or Bobong Ramirez accused in these cases is the same
person as the informant Bobong Solier.59 cräläwvirtualibr äry

Swayed by the prosecutions evidence beyond reasonable

doubt, the RTC rendered judgment convicting both accused
as charged and sentencing them to suffer the penalty
of reclusion perpetua and to pay a fine of P500,000.00.60 cräläwvirtualibr äry

On appeal, Noel Tudtud and Dindo Bolong assign, among

other errors, the admission in evidence of the marijuana
leaves, which they claim were seized in violation of their
right against unreasonable searches and seizures.

The right against unreasonable searches and seizures is

secured by Section 2, Article III of the Constitution, which
states:

SEC. 2. The right of the people to be secured 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 places to be
searched and the persons or things to be seized.

The rule is that a search and seizure must be carried out

through or with a judicial warrant; otherwise, such search
and seizure becomes unreasonable within the meaning of the
above-quoted constitutional provision, and any evidence
secured thereby, will be inadmissible in evidence for any
purpose in any proceeding.61 Section 3 (2), Article III of the
Constitution explicitly provides:

(2) Any evidence obtained in violation of the preceding

section shall be inadmissible for any purpose in any
proceeding.

The proscription in Section 2, Article III, however, covers

only unreasonable searches and seizures. The following
instances are not deemed unreasonable even in the absence
of a warrant:

1. Warrantless search incidental to a lawful arrest. (Sec. 12,

Rule 126 of the Rules of Court and prevailing jurisprudence);

2. Search of evidence in plain view. The elements 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 have the right to be where they are; (c)
the evidence must be immediately apparent; (d) plain view
justified mere seizure of evidence without further search;

3. Search of a moving vehicle. Highly regulated by the

government, the vehicles 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;

6. Stop and Frisk; and

7. Exigent and emergency circumstances.62 cräläwvirtualibräry

The RTC justified the warrantless search of appellants

belongings under the first exception, as a search incident to
a lawful arrest. It cited as authorities this Courts rulings
in People v. Claudio,63 People v. Tangliben,64 People v.
Montilla,65 and People v. Valdez.66 The Office of the Solicitor
General (OSG), in arguing for the affirmance of the appealed
decision, invokes the cases of People v. Maspil, Jr.,67 People
v. Malmstedt,68 and People v. Bagista.69 cräläwvirtu alibräry

A search incidental to a lawful arrest is sanctioned by the

Rules of Court. Prior to its revision in 2000, Section
12,70 Rule 126 of said Rules read as follows:

SEC. 12. Search incident to lawful arrest. A person lawfully

arrested may be searched for dangerous weapons or
anything which may be used as proof of the commission of
an offense, without a search warrant.

Section 5 (a), Rule 113 of the Rules, in turn, allows

warrantless arrests:

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;

It is significant to note that the search in question preceded

the arrest. Recent jurisprudence holds that the arrest must
precede the search; the process cannot be
reversed.71 Nevertheless, a search substantially
contemporaneous with an arrest can precede the arrest if the
police have probable cause to make the arrest at the outset
of the search.72 The question, therefore, is whether the
police in this case had probable cause to arrest appellants.
Probable cause has been defined as:

an actual belief or reasonable grounds of suspicion. The

grounds of suspicion are reasonable when, in the absence of
actual belief of the arresting officers, the suspicion that the
person to be arrested is probably guilty of committing the
offense, is based on actual facts, i.e., supported by
circumstances sufficiently strong in themselves to create the
probable cause of guilt of the person to be arrested. A
reasonable suspicion therefore must be founded on probable
cause, coupled with good faith of the peace officers making
the arrest.73 cräläwvirtualibr äry

The long-standing rule in this jurisdiction, applied with a

great degree of consistency, is that reliable information
alone is not sufficient to justify a warrantless arrest under
Section 5 (a), Rule 113. The rule requires, in addition, that
the accused perform some overt act that would indicate that
he has committed, is actually committing, or is attempting to
commit an offense.

In the leading case of People v. Burgos,74 this Court held that

the officer arresting a person who has just committed, is
committing, or is about to commit an offense must
have personal knowledge of that fact. The offense must also be
committed in his presence or within his view.75 In Burgos, the authorities
obtained information that the accused had forcibly recruited one Cesar
Masamlok as member of the New Peoples Army, threatening the latter with
a firearm. Upon finding the accused, the arresting team searched his house
and discovered a gun as well as purportedly subversive documents. This
Court, in declaring then Section 6 (a), Rule 113 of the Rules of Court
inapplicable, ruled that:

There is no such personal knowledge in this case. Whatever

knowledge was possessed by the arresting officers, it came
in its entirety from the information furnished by Cesar
Masamlok. The location of the firearm was given by the
appellants wife.

At the time of the appellants arrest, he was not in actual

possession of any firearm or subversive document. Neither
was he committing any act which could be described as
subversive. He was, in fact, plowing his field at the time of
the arrest.

The right of a person to be secure against any unreasonable

seizure of his body and any deprivation of his liberty is a
most basic and fundamental one. The statute or rule which
allows exceptions to the requirement of warrants of arrest is
strictly construed. Any exception must clearly fall within the
situations when securing a warrant would be absurd or is
manifestly unnecessary as provided by the Rule. We cannot
liberally construe the rule on arrests without warrant or
extend its application beyond the cases specifically provided
by law. To do so would infringe upon personal liberty and set
back a basic right so often violated and so deserving of full
protection.76

Consequently, the items seized were held inadmissible,

having been obtained in violation of the accuseds
constitutional rights against unreasonable searches and
seizures.

In People v. Aminnudin,77 this Court likewise held the

warrantless arrest and subsequent search of appellant
therein illegal, given the following circumstances:

the 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 he 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.78cräläw virtualibrär y

Thus, notwithstanding tips from confidential informants and

regardless of the fact that the search yielded contraband, the
mere act of looking from side to side while holding ones
abdomen,79 or of standing on a corner with ones eyes
moving very fast, looking at every person who came
near,80 does not justify a warrantless arrest under said
Section 5 (a). Neither does putting something in ones
pocket,81 handing over ones baggage,82 riding a
motorcycle,83 nor does holding a bag on board
a trisikad84sanction State intrusion. The same rule applies to
crossing the street per se.85 cräläwvirtu alibräry

Personal knowledge was also required in the case of People

v. Doria.86 Recently, in People v. Binad Sy Chua,87 this Court
declared invalid the arrest of the accused, who was walking
towards a hotel clutching a sealed Zest-O juice box. For the
exception in Section 5 (a), Rule 113 to apply, this Court
ruled, two elements must concur: (1) the person to be
arrested must execute an overt act indicating he has just
committed, is actually committing, or is attempting to
commit a crime; and (2) such overt act is done in the
presence or within the view of the arresting officer. Reliable
information alone is insufficient.

In the following cases, the search was held to be incidental

to a lawful arrest because of suspicious
circumstances: People v. Tangliben88 (accused was acting
suspiciously), People v. Malmstedt89 (a bulge on the
accuseds waist), and People v. de Guzman90 (likewise a
bulge on the waist of the accused, who was wearing tight-
fitting clothes).
There is, however, another set of jurisprudence that deems
reliable information sufficient to justify a search incident to a
warrantless arrest under Section 5 (a), Rule 113, thus
deviating from Burgos. To this class of cases belong People
v. Maspil, Jr.,91 People v. Bagista,92 People v.
Balingan,93 People v. Lising,94 People v. Montilla,95 People v.
Valdez,96 and People v. Gonzales.97 In these cases, the
arresting authorities were acting on information regarding
an offense but there were no overt acts or suspicious
circumstances that would indicate that the accused has
committed, is actually committing, or is attempting to
commit the same. Significantly, these cases, except the last
two, come under some other exception to the rule against
warrantless searches. Thus, Maspil, Jr. involved a checkpoint
search, Balingan was a search of a moving
vehicle, Bagista was both, and Lising and Montilla were
consented searches.

Nevertheless, the great majority of cases conforms to the

rule in Burgos, which, in turn, more faithfully adheres to the
letter of Section 5(a), Rule 113. Note the phrase in his
presence therein, connoting personal knowledge on the part
of the arresting officer. The right of the accused to be secure
against any unreasonable searches on and seizure of his own
body and any deprivation of his liberty being a most basic
and fundamental one, the statute or rule that allows
exception to the requirement of a warrant of arrest is strictly
construed. Its application cannot be extended beyond the
cases specifically provided by law.98 cräläwvirtualibr äry

The cases invoked by the RTC and the OSG are, therefore,
gravely misplaced. In Claudio,99 the accused, who was
seated aboard a bus in front of the arresting officer, put her
bag behind the latter, thus arousing the latters suspicion.
In Tangliben and Malmstedt, the accused had also acted
suspiciously.

As noted earlier, Maspil, Jr., Bagista and Montilla were

justified by other exceptions to the rule against warrantless
searches. Montilla, moreover, was not without its critics.
There, majority of the Court held:

Appellant insists that the mere fact of seeing a person

carrying a traveling bag and a carton box should not elicit
the slightest suspicion of the commission of any crime since
that is normal. But precisely, it is in the ordinary nature of
things that drugs being illegally transported are necessarily
hidden in containers and concealed from view. Thus, the
officers could reasonably assume, and not merely on a
hollow suspicion since the informant was by their side and
had so informed them, that the drugs were in appellants
luggage. It would obviously have been irresponsible, if now
downright absurd under the circumstances, to require the
constable to adopt a wait and see attitude at the risk of
eventually losing the quarry.

Here, there were sufficient facts antecedent to the search

and seizure that, at the point prior to the search were
already constitutive of probable cause, and which by
themselves could properly create in the minds of the officers
a well-grounded and reasonable belief that appellant was in
the act of violating the law. The search yielded affirmance
both of that probable cause and the actuality that appellant
was then actually committing a crime by illegally
transporting prohibited drugs. With these attendant facts, it
is ineluctable that appellant was caught in flagrante delicto,
hence his arrest and the search of his belongings without the
requisite warrant were both justified.100cräläwvirtualibr äry

While concurring with the majority, Mr. Justice Vitug

reserved his vote on the discussion on the warrantless
search being incidental to a lawful arrest. Mr. Justice
Panganiban, joined by Messrs. Justices Melo and Puno, filed
a Separate Opinion.

Although likewise concurring in the majoritys ruling that

appellant consented to the inspection of his baggage, Justice
Panganiban disagreed with the conclusion that the
warrantless search was incidental to a lawful arrest. He
argued that jurisprudence required personal knowledge on
the part of the officers making the in flagrante delicto arrest.
In Montilla, the appellant did not exhibit any overt act or
strange conduct that would reasonably arouse in their minds
suspicion that he was embarking on some felonious
enterprise.

Law and jurisprudence in fact require stricter grounds for

valid arrests and searches without warrant than for the
issuance of warrants therefore. In the former, the arresting
person must have actually witnessed the crime being
committed or attempted by the person sought to be arrested;
or he must have personal knowledge of facts indicating that
the person to be arrested perpetrated the crime that had just
occurred. In the latter case, the judge simply determines
personally from testimonies of witnesses that there exists
reasonable grounds to believe that a crime was committed
by the accused.

To say that reliable tips constitute probable cause for a

warrantless arrest or search is in my opinion, a dangerous
precedent and places in great jeopardy the doctrines laid
down in many decisions made by this Court, in its effort to
zealously guard and protect the sacred constitutional right
against unreasonable arrests, searches and seizures.
Everyone would be practically at the mercy of so-called
informants, reminiscent of the makapilis during the Japanese
occupation. Any one whom they point out to a police officer
as a possible violator of the law could then be subject to
search and possible arrest. This is placing limitless power
upon informants who will no longer be required to affirm
under oath their accusations, for they can always delay their
giving of tips in order to justify warrantless arrests and
searches. Even law enforcers can use this as an oppressive
tool to conduct searches without warrants, for they can
always claim that they received raw intelligence information
only on the day or afternoon before. This would clearly be a
circumvention of the legal requisites for validly effecting an
arrest or conducting a search and seizure. Indeed the
majoritys ruling would open loopholes that would allow
unreasonable arrests, searches and seizures.101 cräläwvirtualibräry

Montilla would shortly find mention in Justice Panganibans

concurring opinion in People v. Doria, supra, where this
Court ruled:

Accused-Appellant Gaddao was arrested solely on the basis

of the alleged identification made by her co-accused. PO3
Manlangit, however, declared in his direct examination that
appellant Doria named his co-accused in response to his
(PO3 Manlangits) query as to where the marked money was.
Appellant Doria did not point to appellant Gaddao as his
associate in the drug business, but as the person with whom
he left the marked bills. This identification does not
necessarily lead to the conclusion that appellant Gaddao
conspired with her co-accused in pushing drugs. Appellant
Doria may have left the money in her house, with or without
any conspiracy. Save for accused-appellant Dorias word, the
Narcom agents had no showing that the person who affected
the warantless arrest had, in his own right, knowledge of
facts implicating the person arrested to the perpetration of a
criminal offense, the arrest is legally
objectionable.102 [Italics in the original.]

Expressing his accord with Mr. Justice Punos ponencia,

Justice Panganiban said that Doria rightfully brings the Court
back to well-settled doctrines on warrantless arrests and
searches, which have seemingly been modified through
an obiter in People v. Ruben Montilla.103
cräläwvirtualibr äry

Montilla, therefore, has been seemingly discredited insofar

as it sanctions searches incidental to lawful arrest under
similar circumstances. At any rate, Montilla was a consented
search. As will be demonstrated later, the same could not be
said of this case.

That leaves the prosecution with People v. Valdez, which,

however, involved an on-the-spot information. The urgency
of the circumstances, an element not present in this case,
prevented the arresting officer therein from obtaining a
warrant.

Appellants in this case were neither performing any overt act

or acting in a suspicious manner that would hint that a crime
has been, was being, or was about to be, committed. If the
arresting officers testimonies are to be believed, appellants
were merely helping each other carry a carton box. Although
appellant Tudtud did appear afraid and
perspiring,104 pale105 and trembling,106 this was only after,
not before, he was asked to open the said box.

In no sense can the knowledge of the herein arresting

officers that appellant Tudtud was in possession of
marijuana be described as personal, having learned the same
only from their informant Solier. Solier, for his part, testified
that he obtained his information only from his neighbors and
the friends of appellant Tudtud:

Q What was your basis in your report to the police that

Tudtud is going to Cotabato and get stocks of marijuana?

A Because of the protest of my neighbors who were saying

who will be the person whou [sic] would point to him
because he had been giving trouble to the neighborhood
because according to them there are [sic] proliferation of
marijuana in our place. That was the complained [sic] of our
neighbors.

Q Insofar as the accused Tudtud is concerned what was your

basis in reporting him particularly?

A His friends were the once who told me about it.

Q For how long have you know [sic] this fact of alleged
activity of Tudtud in proliferation of marijuana?

A About a month.

.
Q Regarding the report that Tudtud went to Cotabato to get
stocks of marijuana which led to his apprehension sometime
in the evening of August 1 and according to the report
[which] is based on your report my question is, how did you
know that Tudtud will be bringing along with him marijuana
stocks on August 1, 1999?

A Because of the information of his neighbor.107cräläwvirtualibräry

In other words, Soliers information itself is hearsay. He did

not even elaborate on how his neighbors or Tudtuds friends
acquired their information that Tudtud was responsible for
the proliferation of drugs in their neighborhood.

Indeed, it appears that PO1 Floreta himself doubted the

reliablility of their informant. He testified on cross-
examination:

Q You mean to say that Bobot Solier, is not reliable?

A He is trustworthy.

Q Why [did] you not consider his information not reliable if

he is reliable?

A (witness did not answer).

ATTY. CAETE:

Never mind, do not answer anymore. Thats all.108 cr äläw virtualibrär y

The prosecution, on re-direct examination, did not attempt to

extract any explanation from PO1 Floreta for his telling
silence.

Confronted with such a dubious informant, the police

perhaps felt it necessary to conduct their own surveillance.
This surveillance, it turns out, did not actually consist of
staking out appellant Tudtud to catch him in the act of plying
his illegal trade, but of a mere gather[ing] of information
from the assets there.109 The police officers who conducted
such surveillance did not identify who these assets were or
the basis of the latters information. Clearly, such information
is also hearsay, not of personal knowledge.

Neither were the arresting officers impelled by any urgency

that would allow them to do away with the requisite warrant,
PO1 Desiertos assertions of lack of time110 notwithstanding.
Records show that the police had ample opportunity to apply
for a warrant, having received Soliers information at around
9:00 in the morning; Tudtud, however, was expected to
arrive at around 6:00 in the evening of the same
day.111 In People v. Encinada, supra, the Court ruled that
there was sufficient time to procure a warrant where the
police officers received at 4:00 in the afternoon an
intelligence report that the accused, who was supposedly
carrying marijuana, would arrive the next morning at 7:00
a.m.:

Even if the information was received by Bolonia about 4:00 p.m. of

May 20, 1992 at his house, there was sufficient time to secure a
warrant of arrest, as the M/V Sweet Pearl was not expected to dock
until 7:00 a.m. the following day. Administrative Circular No. 13
allows application for search warrants even after office hours:

3. Raffling shall be strictly enforced, except only in case where an

application for search warrant may be filed directly with any judge
whose jurisdiction the place to be searched is located, after office
hours, or during Saturdays, Sundays, and legal holidays, in which
case the applicant is required to certify under oath the urgency of
the issuance thereof after office hours, or during Saturdays,
Sundays and legal holidays; . . ..

The same procedural dispatch finds validation and reiteration in

Circular No. 19, series of 1987, entitled Amended Guidelines and
Procedures on Application for search warrants for Illegal Possession
of Firearms and Other Serious Crimes Filed in Metro Manila Courts
and Other Courts with Multiple Salas:
This Court has received reports of delay while awaiting raffle, in
acting on applications for search warrants in the campaign against
loose firearms and other serious crimes affecting peace and order.
There is a need for prompt action on such applications for search
warrant. Accordingly, these amended guidelines in the issuance of a
search warrant are issued:

1. All applications for search warrants relating to violation of the

Anti-subversion Act, crimes against public order as defined in the
Revised Penal Code, as amended, illegal possession of firearms
and/or ammunition and violations of the Dangerous Drugs Act of
1972, as amended, shall no longer be raffled and shall immediately
be taken cognizance of and acted upon by the Executive Judge of
the Regional Trial Court, Metropolitan Trial Court, and Municipal
Trial Court under whose jurisdiction the place to be searched is
located.

2. In the absence of the Executive Judge, the Vice-Executive

Judge shall take cognizance of and personally act on the same. In
the absence of the Executive Judge or Vice-Executive Judge, the
application may be taken cognizance of and acted upon
by any judge of the Court where application is filed.

3. Applications filed after office hours, during Saturdays, Sundays

and holidays, shall likewise be taken cognizance of and acted upon
by any judge of the Court having jurisdiction of the place to be
searched, but in such cases the applicant shall certify and state the
facts under oath, to the satisfaction of the judge, that its issuance is
urgent.

4. Any judge acting on such application shall immediately and

without delay personally conduct the examination of the applicant
and his witnesses to prevent the possible leakage of information. He
shall observe the procedures, safeguards, and guidelines for the
issuance of search warrants provided for in this Courts
Administrative Circular No. 13, dated October 1, 1985.112 [Italics in
the original.]

Given that the police had adequate time to obtain the warrant, PO1
Floretas testimony that the real reason for their omission was their
belief that they lacked sufficient basis to obtain the same assumes
greater significance. This was PO1 Floretas familiar refrain:

Q When Solier reported to you that fact, that Tudtud will be coming
from Cotabato to get that (sic) stocks, you did not go to court to get
a search warrant on the basis of the report of Bobot Solier?

A No.

Q Why?

A Because we have no real basis to secure the search warrant.

Q When you have no real basis to secure a search warrant, you

have also no real basis to search Tudtud and Bulong at that time?

A Yes, sir.

Q And Bobot Solier told you that Tudtud, that he would already
bring marijuana?

A Yes, sir.

Q And this was 9:00 a.m.?

A Yes, sir.

Q The arrival of Tudtud was expected at 6:00 p.m.?

A Yes, sir.

Q Toril is just 16 kilometers from Davao City?

A Yes, sir.

Q And the Office of the Regional Trial Court is only about 16

kilometers, is that correct?

A Yes, sir.
Q And it can be negotiated by thirty minutes by a jeep ride?

A Yes, sir.

Q And you can asked [sic] the assistance of any prosecutor to apply
for the search warrant or the prosecutor do [sic] not assist?

A They help.

Q But you did not come to Davao City, to asked [sic] for a search
warrant?

A As I said, we do not have sufficient basis.113 cräläwvirtual ib räry

It may be conceded that the mere subjective conclusions of a police

officer concerning the existence of probable cause is not binding on
[the courts] which must independently scrutinize the objective facts
to determine the existence of probable cause and that a court may
also find probable cause in spite of an officers judgment that none
exists.114 However, the fact that the arresting officers felt that they
did not have sufficient basis to obtain a warrant, despite their own
information-gathering efforts, raises serious questions whether such
surveillance actually yielded any pertinent information and even
whether they actually conducted any information-gathering at all,
thereby eroding any claim to personal knowledge.

Finally, there is an effective waiver of rights against unreasonable

searches and seizures if the following requisites are present:

1. It must appear that the rights exist;

2. The person involved had knowledge, actual or constructive, of the

existence of such right;

3. Said person had an actual intention to relinquish the right.115 cräläwvirt ualib rä ry

Here, the prosecution failed to establish the second and third

requisites. Records disclose that when the police officers introduced
themselves as such and requested appellant that they see the
contents of the carton box supposedly containing the marijuana,
appellant Tudtud said it was alright. He did not resist and opened
the box himself.

The fundamental law and jurisprudence require more than the

presence of these circumstances to constitute a valid waiver of the
constitutional right against unreasonable searches and seizures.
Courts indulge every reasonable presumption against waiver of
fundamental constitutional rights; acquiescence in the loss of
fundamental rights is not to be presumed.116 The fact that a person
failed to object to a search does not amount to permission thereto.

. 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 officers 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.117 [Underscoring supplied.]

Thus, even in cases where the accused voluntarily handed her

bag118 or the chairs119 containing marijuana to the arresting officer,
this Court held there was no valid consent to the search.

On the other hand, because a warrantless search is in derogation of

a constitutional right, peace officers who conduct it cannot invoke
regularity in the performance of official functions and shift to the
accused the burden of proving that the search was
unconsented.120 cräläwvirtual ibrä ry

In any case, any presumption in favor of regularity would be

severely diminished by the allegation of appellants in this case that
the arresting officers pointed a gun at them before asking them to
open the subject box. Appellant Tudtud testified as follows:

Q This person who approached you according to you pointed

something at you[.] [What] was that something?

A A 38 cal. Revolver.

Q How did he point it at you?

A Like this (Witness demonstrating as if pointing with his two arms
holding something towards somebody).

Q This man[,] what did he tell you when he pointed a gun at you?

A He said do not run.

Q What did you do?

A I raised my hands and said Sir, what is this about?

Q Why did you call him Sir?

A I was afraid because when somebody is holding a gun, I am

afraid.

Q Precisely, why did you address him as Sir?

A Because he was holding a gun and I believed that somebody who

is carrying a gun is a policeman.

Q When you asked him what is this? What did he say?

A He said I would like to inspect what you are carrying.[]

Q What did you say when you were asked to open that carton box?

A I told him that is not mine.

Q What did this man say?

A He again pointed to me his revolver and again said to open.

Q What did you do?

A So I proceeded to open for fear of being shot.121 cräläwvirt ualib rä ry

Appellants implied acquiescence, if at all, could not have been more

than mere passive conformity given under coercive or intimidating
circumstances and is, thus, considered no consent at all within the
purview of the constitutional guarantee.122 Consequently, appellants
lack of objection to the search and seizure is not tantamount to a
waiver of his constitutional right or a voluntary submission to the
warrantless search and seizure.123 cräläwvirtua lib räry

As the search of appellants box does not come under the recognized
exceptions to a valid warrantless search, the marijuana leaves
obtained thereby are inadmissible in evidence. And as there is no
evidence other than the hearsay testimony of the arresting officers
and their informant, the conviction of appellants cannot be
sustained.

The Bill of Rights is the bedrock of constitutional government. If

people are stripped naked of their rights as human beings,
democracy cannot survive and government becomes meaningless.
This explains why the Bill of Rights, contained as it is in Article III of
the Constitution, occupies a position of primacy in the fundamental
law way above the articles on governmental power.124 cräläwvirt ualib rä ry

The right against unreasonable search and seizure in turn is at the

top of the hierarchy of rights,125 next only to, if not on the same
plane as, the right to life, liberty and property, which is protected by
the due process clause.126 This is as it should be for, as stressed by
a couple of noted freedom advocates,127 the right to personal
security which, along with the right to privacy, is the foundation of
the right against unreasonable search and seizure includes the right
to exist, and the right to enjoyment of life while existing.
Emphasizing such right, this Court declared in People v. Aruta:

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.

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.128

Thus, given a choice between letting suspected criminals escape or

letting the government play an ignoble part, the answer, to this
Court, is clear and ineluctable.

WHEREFORE, the Decision of the Regional Trial Court of Davao

City is REVERSED. Appellants Noel Tudtud y Paypa and Dindo
Bolong y Naret are hereby ACQUITTED for insufficiency of evidence.
The Director of the Bureau of Prisons is ordered to cause the
immediate release of appellants from confinement, unless they are
being held for some other lawful cause, and to report to this Court
compliance herewith within five (5) days from receipt hereof.

SO ORDERED.

G.R. No. 125299 January 22, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FLORENCIO DORIA y BOLADO and VIOLETA GADDAO y CATAMA @ "NENETH," accused-
appellants.

PUNO, J.:

On December 7, 1995, accused-appellants Florencio Doria y Bolado and Violeta Gaddao y Catama
@ "Neneth" were charged with violation of Section 4, in relation to Section 21 of the Dangerous
Drugs Act of 1972. 1 The information reads:

That on or about the 5th day of December, 1995 in the City of Mandaluyong,
Philippines, a place within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating and mutually helping and aiding one another and
without having been authorized by law, did, then and there willfully, unlawfully and
feloniously sell, administer, deliver and give away to another eleven (11) plastic bags
of suspected marijuana fruiting tops weighing 7,641.08 grams in violation of the
above-cited law.

CONTRARY TO LAW.2
The prosecution contends the offense was committed as follows: In November 1995, members of
the North Metropolitan District, Philippine National Police (PNP) Narcotics Command (Narcom),
received information from two (2) civilian informants (CI) that one "Jun" was engaged in illegal drug
activities in Mandaluyong City. The Narcom agents decided to entrap and arrest "Jun" in a buy-bust
operation. As arranged by one of the CI's, a meeting between the Narcom agents and "Jun" was
scheduled on December 5, 1995 at E. Jacinto Street in Mandaluyong City.

On December 5, 1995, at 6:00 in the morning, the CI went to the PNP Headquarters at EDSA,
Kamuning, Quezon City to prepare for the buy-bust operation. The Narcom agents formed Team
Alpha composed of P/Insp. Nolasco Cortes as team leader and PO3 Celso Manlangit, SPO1
Edmund Badua and four (4) other policemen as members. P/Insp. Cortes designated P03 Manlangit
as the poseur-buyer and SPO1 Badua as his back-up, and the rest of the team as perimeter
security. Superintendent Pedro Alcantara, Chief of the North Metropolitan District PNP Narcom,
gave the team P2, 000. 00 to cover operational expenses. From this sum, PO3 Manlangit set aside
P1,600.00 — a one thousand peso bill and six (6) one hundred peso bills 3 — as money for the buy-
bust operation. The market price of one kilo of marijuana was then P1,600.00. P03 Manlangit
marked the bills with his initials and listed their serial numbers in the police blotter.4 The team rode in
two cars and headed for the target area.

At 7:20 of the same morning, "Jun" appeared and the CI introduced PO3 Manlangit as interested in
buying one (1) kilo of marijuana. P03 Manlangit handed "Jun" the marked bills worth P1,600.00.
"Jun" instructed P03 Manlangit to wait for him at the corner of Shaw Boulevard and Jacinto Street
while he got the marijuana from his associate.5 An hour later, "Jun" appeared at the agreed place
where P03 Manlangit, the CI and the rest of the team were waiting. "Jun" took out from his bag an
object wrapped in plastic and gave it to P03 Manlangit. P03 Manlangit forthwith arrested "Jun" as
SPO1 Badua rushed to help in the arrest. They frisked "Jun" but did not find the marked bills on him.
Upon inquiry, "Jun" revealed that he left the money at the house of his associate named
"Neneth.6 "Jun" led the police team to "Neneth's" house nearby at Daang Bakal.

The team found the door of "Neneth's" house open and a woman inside. "Jun" identified the woman
as his associate.7 SPO1 Badua asked "Neneth" about the P1,600.00 as PO3 Manlangit looked over
"Neneth's" house. Standing by the door, PO3 Manlangit noticed a carton box under the dining table.
He saw that one of the box's flaps was open and inside the box was something wrapped in plastic.
The plastic wrapper and its contents appeared similar to the marijuana earlier "sold" to him by "Jun."
His suspicion aroused, PO3 Manlangit entered "Neneth's" house and took hold of the box. He
peeked inside the box and found that it contained ten (10) bricks of what appeared to be dried
marijuana leaves.

Simultaneous with the box's discovery, SPO1 Badua recovered the marked bills from "Neneth."8 The
policemen arrested "Neneth." They took "Neneth" and "Jun," together with the box, its contents and
the marked bills and turned them over to the investigator at headquarters. It was only then that the
police learned that "Jun" is Florencio Doria y Bolado while "Neneth" is Violeta Gaddao y Catama.
The one (1) brick of dried marijuana leaves recovered from "Jun" plus the ten (10) bricks recovered
from "Neneth's" house were examined at the PNP Crime Laboratory.9 The bricks, eleven (11) in all,
were found to be dried marijuana fruiting tops of various weights totalling 7,641.08 grams. 10

The prosecution story was denied by accused-appellants Florencio Doria and Violeta Gaddao.
Florencio Doria, a 33-year old carpenter, testified that on December 5, 1995, at 7:00 in the morning,
he was at the gate of his house reading a tabloid newspaper. Two men appeared and asked him if
he knew a certain "Totoy." There were many "Totoys" in their area and as the men questioning him
were strangers, accused-appellant denied knowing any "Totoy." The men took accused-appellant
inside his house and accused him of being a pusher in their community. When accused-appellant
denied the charge, the men led him to their car outside and ordered him to point out the house of
"Totoy." For five (5) minutes, accused-appellant stayed in the car. Thereafter, he gave in and took
them to "Totoy's" house.

Doria knocked on the door of "Totoy's" house but no one answered. One of the men, later identified
as P03 Manlangit, pushed open the door and he and his companions entered and looked around the
house for about three minutes. Accused-appellant Doria was left standing at the door. The
policemen came out of the house and they saw Violeta Gaddao carrying water from the well. He
asked Violeta where "Totoy" was but she replied he was not there. Curious onlookers and kibitzers
were, by that time, surrounding them. When Violeta entered her house, three men were already
inside. Accused-appellant Doria, then still at the door, overheard one of the men say that they found
a carton box. Turning towards them, Doria saw box on top of the table. The box was open and had
something inside. P03 Manlangit ordered him and Violeta to go outside the house and board the car.
They were brought to police headquarters where they were investigated.

Accused-appellant Doria further declared that his co-accused, Violeta Gaddao, is the wife of his
acquaintance, Totoy Gaddao. He said that he and Totoy Gaddao sometimes drank together at the
neighborhood store. This closeness, however, did not extend to Violeta, Totoy's wife.11

Accused-appellant Violeta Gaddao, a 35-year old rice vendor, claimed that on December 5, 1995,
she was at her house at Daang Bakal, Mandaluyong City where she lived with her husband and five
(5) children, namely, Arvy, aged 10, Arjay, aged 8, the twins Raymond and Raynan, aged 5, and
Jason, aged 3. That day, accused-appellant woke up at 5:30 in the morning and bought pan de sal
for her children's breakfast. Her husband, Totoy, a housepainter, had left for Pangasinan five days
earlier. She woke her children and bathed them. Her eldest son, Arvy, left for school at 6:45 A.M.
Ten minutes later, she carried her youngest son, Jayson, and accompanied Arjay to school. She left
the twins at home leaving the door open. After seeing Arjay off, she and Jayson remained standing
in front of the school soaking in the sun for about thirty minutes. Then they headed for home. Along
the way, they passed the artesian well to fetch water. She was pumping water when a man clad in
short pants and denim jacket suddenly appeared and grabbed her left wrist. The man pulled her and
took her to her house. She found out later that the man was P03 Manlangit.

Inside her house were her co-accused Doria and three (3) other persons. They asked her about a
box on top of the table. This was the first time she saw the box. The box was closed and tied with a
piece of green straw. The men opened the box and showed her its contents. She said she did not
know anything about the box and its contents.

Accused-appellant Violeta Gaddao confirmed that her co-accused Florencio Doria was a friend of
her husband, and that her husband never returned to their house after he left for Pangasinan. She
denied the charge against her and Doria and the allegation that marked bills were found in her
person.12

After trial, the Regional Trial Court, Branch 156, Pasig City convicted the accused-appellants. The
trial court found the existence of an "organized/syndicated crime group" and sentenced both
accused-appellants to death and pay a fine of P500,000.00 each. The dispositive portion of the
decision reads as follows:

WHEREFORE, the guilt of accused, FLORENCIO DORIA y BOLADO @ "Jun" and

VIOLETA GADDAO y CATAMA @ "Neneth" having been established beyond
reasonable doubt, they are both
CONVICTED of the present charge against them.
 According to the amendatory provisions of Sec. 13 of Republic Act No. 7659 which
cover violations of Sec. 4 of Republic Act No. 6425 and which was exhaustively
discussed in People v. Simon, 234 SCRA 555, the penalty imposable in this case
is reclusion perpetua to death and a fine ranging from five hundred thousand pesos
to ten million pesos. Taking into consideration, however, the provisions of Sec. 23,
also of Republic Act No. 7659 which explicitly state that:

The maximum penalty shall be imposed if the offense was committed

by any person who belongs to an organized/syndicated crime group.

An organized/syndicated crime group means a group of two or more

persons collaborating, confederating or mutually helping one another
for purposes of gain in the commission of any crime.

the Court is hereby constrained to sentence (hereby sentences) said FLORENCIO

DORIA y BOLADO @ "Jun" and VIOLETA GADDAO y CATAMA @ "Neneth" to
DEATH and to pay a fine of Five Hundred Thousand Pesos (P500,000.00) each
without subsidiary imprisonment in case of insolvency and to pay the costs.

The confiscated marijuana bricks (7,641.08 grams) shall be turned over to the
Dangerous Drugs Board, NBI for destruction in accordance with law.

Let a Commitment Order be issued for the transfer of accused DORIA from the
Mandaluyong City Jail to the New Bilibid Prisons, Muntinlupa City and also for
accused GADDAO for her transfer to the Correctional Institute for Women,
Mandaluyong City.

Let the entire records of this case be forwarded immediately to the Supreme Court
for mandatory review.

SO ORDERED. 13

Before this Court, accused-appellant Doria assigns two errors, thus:

THE COURT A QUO GRAVELY ERRED IN GIVING WEIGHT TO THE TESTIMONY

OF THE WITNESSES FOR THE PROSECUTION WHEN THEIR TESTIMONIES
WERE SHOT WITH DISCREPANCIES, INCONSISTENCIES AND THAT
THE CORPUS DELICTI OF THE MARIJUANA ALLEGEDLY TAKEN FROM
APPELLANT WAS NOT POSITIVELY IDENTIFIED BY THE POSEUR-BUYER.

II

THE COURT A QUO GRAVELY ERRED IN ADMITTING AS EVIDENCE THE

MARIJUANA FRUITINGS FOUND INSIDE THE CARTON BOX AS THESE WERE
OBTAINED THROUGH A WARRANTLESS SEARCH AND DOES NOT COME
WITHIN THE PLAIN VIEW DOCTRINE. 14

Accused-appellant Violeta Gaddao contends:

 I

THE LOWER COURT ERRED IN FINDING APPELLANT GUILTY DESPITE THE

INCREDIBILITY OF THE POLICE VERSION OF THE MANNER THE ALLEGED
BUY-BUST WAS CONDUCTED.

II

THE PNP OFFICERS' VERSIONS AS TO WHERE THE BUY-BUST MONEY CAME

FROM ARE INCONSISTENT WITH ONE ANOTHER AND ALSO REEKS WITH
INCREDIBILITY.

III

THE LOWER COURT ERRED IN FINDING APPELLANT GUILTY AND

SENTENCING HER TO DEATH DESPITE THE MANIFESTLY IRRECONCILABLE
INCONSISTENCIES IN THE VERSIONS OF THE POLICE AS TO HOW AND BY
WHOM THE ALLEGED BUY-BUST MONEY WAS RECOVERED FROM HER,
WHICH IN CONSEQUENCE RESULTS IN THE EVIDENCE, OF RETRIEVAL FROM
HER OF THE SAME, NEBULOUS, AT BEST, NIL, AT WORST.

IV

THE LOWER COURT ERRED IN UPHOLDING THE VALIDITY OF THE

WARRANTLESS SEARCH LEADING TO THE SEIZURE OF THE MARIJUANA
ALLEGEDLY FOUND INSIDE THE HOUSE OF ACCUSED-APPELLANT. 15

The assigned errors involve two principal issues: (1) the validity of the buy-bust operation in the
apprehension of accused-appellant Doria; and (2) the validity of the warrantless arrest of accused-
appellant Gaddao, the search of her person and house, and the admissibility of the pieces of
evidence obtained therefrom.

Accused-appellants were caught by the police in a buy-bust operation. A buy-bust operation is a

form of entrapment employed by peace officers as an effective way of apprehending a criminal in the
act of the commission of an offense.16 Entrapment has received judicial sanction when undertaken
with due regard to constitutional and legal safeguards.17

Entrapment was unknown in common law. It is a judicially created twentieth-century American

doctrine that evolved from the increasing use of informers and undercover agents in the detection of
crimes, particularly liquor and narcotics offenses.18 Entrapment sprouted from the doctrine of
estoppel and the public interest in the formulation and application of decent standards in the
enforcement of criminal law.19 It also took off from a spontaneous moral revulsion against using the
powers of government to beguile innocent but ductile persons into lapses that they might otherwise
resist.20

In the American jurisdiction, the term "entrapment" has a generally negative meaning because it is
understood as the inducement of one to commit a crime not contemplated by him, for the mere
purpose of instituting a criminal prosecution against him.21 The classic definition of entrapment is that
articulated by Justice Roberts in Sorrells v. United States,22 the first Supreme Court decision to
acknowledge the concept: "Entrapment is the conception and planning of an offense by an officer,
and his procurement of its commission by one who would not have perpetrated it except for the
trickery, percuasion or fraud of the officers."23 It consists of two (2) elements: (a) acts of percuasion,
trickery, or fraud carried out by law enforcement officers or the agents to induce a defendant to
commit a crime; and (b) the origin of the criminal design in the minds of the government officials
rather than that of the innocent defendant, such that the crime is the product of the creative activity
of the law enforcement officer.24

It is recognized that in every arrest, there is a certain amount of entrapment used to outwit the
persons violating or about to violate the law. Not every deception is forbidden. The type of
entrapment the law forbids is the inducing of another to violate the law, the "seduction" of an
otherwise innocent person into a criminal career.25 Where the criminal intent originates criminal in the
mind of the entrapping person and the accused is lured into the commission of the offense charged
in order to prosecute him, there is entrapment and no conviction may be had.26 Where, however, the
criminal intent originates in the mind of the accused and the criminal offense is completed, the fact
that a person acting as a decoy for the state, or public officials furnished the accused an opportunity
for commission of the offense, or that the accused is aided in the commission of the crime in order to
secure the evidence necessary to prosecute him, there is no entrapment and the accused must be
convicted.27 The law tolerates the use of decoys and other artifices to catch a criminal.

Entrapment is recognized as a valid defense28 that can be raised by an accused and partakes of the
nature of a confession and avoidance.29 It is a positive defense. Initially, an accused has the burden
of providing sufficient evidence that the government induced him to commit the offense. Once
established, the burden shifts to the governmet to show otherwise.30 When entrapment is raised as a
defense, American federal courts and a majority of state courts use the "subjective" or "origin of
intent" test laid down in Sorrells v. United States 31 to determine whether entrapment actually
occurred. The focus of the inquiry is on the accused's predisposition to commit the offense charged,
his state of mind and inclination before his initial exposure to government agents. 32 All relevant facts
such as the accused's mental and character traits, his past offenses, activities, his eagerness in
committing the crime, his reputation, etc., are considered to assess his state of mind before the
crime.33 The predisposition test emphasizes the accused's propensity to commit the offense rather
than the officer's misconduct 34 and reflects an attempt to draw a line between a "trap for the unwary
innocent and the trap for the unwary criminal."35 If the accused was found to have been ready and
willing to commit the offense at any favorable opportunity, the entrapment defense will fail even if a
police agent used an unduly persuasive inducement.36 Some states, however, have adopted the
"objective" test. 37 This test was first authoritatively laid down in the case of Grossman v.
State 38 rendered by the Supreme Court of Alaska. Several other states have subsequently adopted the test by judicial pronouncement or
legislation. Here, the court considers the nature of the police activity involved and the propriety of police conduct. 39 The inquiry is focused on
the inducements used by government agents, on police conduct, not on the accused and his predisposition to commit the crime. For the goal
of the defense is to deter unlawful police conduct.40 The test of entrapment is whether the conduct of the law enforcement agent was likely to
induce a normally law-abiding person, other than one who is ready and willing, to commit the offense; 41 for purposes of this test, it is
presumed that a law-abiding person would normally resist the temptation to commit a crime that is presented by the simple opportunity to act
unlawfully. 42 Official conduct that merely offers such an opportunity is permissible, but overbearing conduct, such as badgering, cajoling or
importuning,43 or appeals to sentiments such as pity, sympathy, friendship or pleas of desperate illness, are not. 44 Proponents of this test
believe that courts must refuse to convict an entrapped accused not because his conduct falls outside the legal norm but rather because,
even if his guilt has been established, the methods employed on behalf of the government to bring about the crime "cannot be
countenanced." To some extent, this reflects the notion that the courts should not become tainted by condoning law enforcement
improprieties.45 Hence, the transactions leading up to the offense, the interaction between the accused and law enforcement officer and the
accused's response to the officer's inducements, the gravity of the crime, and the difficulty of detecting instances of its commission are
considered in judging what the effect of the officer's conduct would on a normal person.46

Both the "subjective" and "objective" approaches have been criticized and objected to. It is claimed
that the "subjective" test creates an "anything goes" rule, i.e, if the court determines that an accused
was predisposed to commit the crime charged, no level of police deceit, badgering or other unsavory
practices will be deemed impermissible.47 Delving into the accused's character and predisposition
obscures the more important task of judging police behavior and prejudices the accused more
generally. It ignores the possibility that no matter what his past crimes and general disposition were,
the accused might not have committed the particular crime unless confronted with inordinate
inducements.48 On the other extreme, the purely "objective" test eliminates entirely the need for
considering a particular accused's predisposition. His predisposition, at least if known by the police,
may have an important bearing upon the question of whether the conduct of the police and and their
agents was proper. 49 The undisputed fact that the accused was a dangerous and chronic offender or
that he was a shrewd and active member of a criminal syndicate at the time of his arrest is relegated
to irrelevancy.50

Objections to the two tests gave birth to hybrid approaches to entrapment. Some states in the United
States now combine both the "subjective" and "objective"51 In Cruz v. State,52 the Florida Supreme
Court declared that the permissibility of police conduct must first be determined. If this objective test
is satisfied, then the analysis turns to whether the accused was predisposed to commit the
crime.53 In Baca v. State,54 the New Mexico Supreme Court modified the state's entrapment analysis
by holding that "a criminal defendant may successfully assert a defense of entrapment, either by
showing lack of predisposition to commit the crime for which he is charged, or, that the police
exceeded the standards of proper investigation.55 The hybrid approaches combine and apply the
"objective" and "subjective" tests alternatively or concurrently.

As early as 1910, this Court has examined the conduct of law enforcers while apprehending the
accused caught in flagrante delicto. In United States v. Phelps,56 we acquitted the accused from the
offense of smoking opium after finding that the government employee, a BIR personnel, actually
induced him to commit the crime in order to prosecute him. Smith, the BIR agent, testified that
Phelps' apprehension came after he overheard Phelps in a saloon say that he liked smoking opium
on some occasions. Smith's testimony was disregarded. We accorded significance to the fact that it
was Smith who went to the accused three times to convince him to look for an opium den where
both of them could smoke this drug.57 The conduct of the BIR agent was condemned as "most
reprehensible."58 In People v. Abella,59 we acquitted the accused of the crime of selling explosives
after examining the testimony of the apprehending police officer who pretended to be a merchant.
The police officer offered "a tempting price, . . . a very high one" causing the accused to sell the
explosives. We found that there was inducement, "direct, persistent and effective" by the police
officer and that outside of his testimony, there was no evidence sufficient to convict the
accused.60 In People v. Lua Chu and Uy Se Tieng, 61 we convicted the accused after finding that
there was no inducement on the part of the law enforcement officer. We stated that the Customs
secret serviceman smoothed the way for the introduction of opium from Hongkong to Cebu after the
accused had already planned its importation and ordered said drug. We ruled that the apprehending
officer did not induce the accused to import opium but merely entrapped him by pretending to have
an understanding with the Collector of Customs of Cebu to better assure the seizure of the
prohibited drug and the arrest of the surreptitious importers.62

It was also in the same case of People v. Lua Chu and Uy Se Tieng 63 we first laid down the distinction between
entrapment vis-a-vis instigation or inducement. Quoting 16 Corpus Juris,64 we held:

ENTRAPMENT AND INSTIGATION. — While it has been said that the practice of
entrapping persons into crime for the purpose of instituting criminal prosecutions is to
be deplored, and while instigation, as distinguished from mere entrapment, has often
been condemned and has sometimes been held to prevent the act from being
criminal or punishable, the general rule is that it is no defense to the perpetrator of a
crime that facilities for its commission were purposely placed in his way, or that the
criminal act was done at the 'decoy solicitation' of persons seeking to expose the
criminal, or that detectives feigning complicity in the act were present and apparently
assisting in its commission. Especially is this true in that class of cases where the
offense is one of a kind habitually committed, and the solicitation merely furnishes
evidence of a course of conduct. Mere deception by the detective will not shield
defendant, if the offense was committed by him, free from the influence or instigation
 of the detective. The fact that an agent of an owner acts as a supposed confederate
of a thief is no defense to the latter in a prosecution for larceny, provided the original
design was formed independently of such agent; and where a person approached by
the thief as his confederate notifies the owner or the public authorities, and, being
authorised by them to do so, assists the thief in carrying out the plan, the larceny is
nevertheless committed. It is generally held that it is no defense to a prosecution for
an illegal sale of liquor that the purchase was made by a "spotter," detective, or hired
informer; but there are cases holding the contrary. 65

The distinction above-quoted was reiterated in two (2) decisions of the Court of Appeals. In People
v. Galicia,66 the appellate court declared that "there is a wide difference between entrapment and
instigation." The instigator practically induces the would-be accused into the commission of the
offense and himself becomes a co-principal. In entrapment, ways and means are resorted to by the
peace officer for the purpose of trapping and capturing the lawbreaker in the execution of his
criminal plan.67 In People v. Tan Tiong,68 the Court of Appeals further declared that "entrapment is no
bar to the prosecution and conviction of the lawbreaker.69

The pronouncement of the Court of Appeals in People v. Galicia was affirmed by this Court
in People v. Tiu Ua.70 Entrapment, we further held, is not contrary to public policy. It is instigation that
is deemed contrary to public policy and illegal.71

It can thus be seen that the concept of entrapment in the American jurisdiction is similar to
instigation or inducement in Philippine jurisprudence. Entrapment in the Philippines is not a defense
available to the accused. It is instigation that is a defense and is considered an absolutory
cause.72 To determine whether there is a entrapment or instigation, our courts have mainly examined
the conduct of the apprehending officers, not the predisposition of the accused to commit the crime.
The "objective" test first applied in United States v. Phelps has been followed in a series of similar
cases.73 Nevertheless, adopting the "objective" approach has not precluded us from likewise applying
the "subjective" test. In People v. Boholst,74 we applied both tests by examining the conduct of the police officers in a buy-bust
operation and admitting evidence of the accused's membership with the notorious and dreaded Sigue-Sigue Sputnik Gang. We also
considered accused's previous his convictions of other crimes 75 and held that his opprobrious past and membership with the dreaded gang
strengthened the state's evidence against him. Conversely, the evidence that the accused did not sell or smoke marijuana and did not have
any criminal record was likewise admitted in People v. Yutuc 76 thereby sustaining his defense that led to his acquittal.

The distinction between entrapment and instigation has proven to be very material in anti-narcotics
operations. In recent years, it has become common practice for law enforcement officers and agents
to engage in buy-bust operations and other entrapment procedures in apprehending drug offenders.
Anti-narcotics laws, like anti-gambling laws are regulatory statutes.77 They are rules of convenience
designed to secure a more orderly regulation of the affairs of society, and their violation gives rise to
crimes mala prohibita.78 They are not the traditional type of criminal law such as the law of murder,
rape, theft, arson, etc. that deal with crimes mala in se or those inherently wrongful and
immoral. 79 Laws defining crimes mala prohibita condemn behavior directed, not against particular
individuals, but against public order.80 Violation is deemed a wrong against society as a whole and is
generally unattended with any particular harm to a definite person.81 These offenses are carried on in
secret and the violators resort to many devices and subterfuges to avoid detection. It is rare for any
member of the public, no matter how furiously he condemns acts mala prohibita, to be willing to
assist in the enforcement of the law. It is necessary, therefore, that government in detecting and
punishing violations of these laws, rely, not upon the voluntary action of aggrieved individuals, but
upon the diligence of its own officials. This means that the police must be present at the time the
offenses are committed either in an undercover capacity or through informants, spies or stool
pigeons.82

Though considered essential by the police in enforcing vice legislation, the confidential informant
system breeds abominable abuse. Frequently, a person who accepts payment from the police in the
apprehension of drug peddlers and gamblers also accept payment from these persons who deceive
the police. The informant himself maybe a drug addict, pickpocket, pimp, or other petty criminal. For
whatever noble purpose it serves, the spectacle that government is secretly mated with the
underworld and uses underworld characters to help maintain law and order is not an inspiring
one.83 Equally odious is the bitter reality of dealing with unscrupulous, corrupt and exploitative law
enforcers. Like the informant, unscrupulous law enforcers' motivations are legion — harassment,
extortion, vengeance, blackmail, or a desire to report an accomplishment to their superiors. This
Court has taken judicial notice of this ugly reality in a number of cases84 where we observed that it is
a common modus operandi of corrupt law enforcers to prey on weak and hapless persons,
particularly unsuspecting provincial hicks.85 The use of shady underworld characters as informants,
the relative ease with which illegal drugs may be planted in the hands or property of trusting and
ignorant persons, and the imposed secrecy that inevitably shrouds all drug deals have compelled
this Court to be extra-vigilant in deciding drug cases.86 Criminal activity is such that stealth and
strategy, although necessary weapons in the arsenal of the police officer, become as objectionable
police methods as the coerced confession and the unlawful search. As well put by the Supreme
Court of California in People v. Barraza,87

[E]ntrapment is a facet of a broader problem. Along with illegal search and seizures,
wiretapping, false arrest, illegal detention and the third degree, it is a type of lawless
enforcement. They all spring from common motivations. Each is a substitute for
skillful and scientific investigation. Each is condoned by the sinister sophism that the
end, when dealing with known criminals of the 'criminal class,' justifies the
employment of illegal means. 88

It is thus imperative that the presumption, juris tantum, of regularity in the performance of official duty
by law enforcement agents raised by the Solicitor General be applied with studied restraint. This
presumption should not by itself prevail over the presumption of innocence and the constitutionally-
protected rights of the individual.89 It is the duty of courts to preserve the purity of their own temple
from the prostitution of the criminal law through lawless enforcement.90 Courts should not allow
themselves to be used as an instrument of abuse and injustice lest an innocent person be made to
suffer the unusually severe penalties for drug offenses.91

We therefore stress that the "objective" test in buy-bust operations demands that the details of the
purported transaction must be clearly and adequately shown. This must start from the initial contact
between the poseur-buyer and the pusher, the offer to purchase, the promise or payment of the
consideration until the consummation of the sale by the delivery of the illegal drug subject of the
sale.92 The manner by which the initial contact was made, whether or not through an informant, the
offer to purchase the drug, the payment of the "buy-bust" money, and the delivery of the illegal drug,
whether to the informant alone or the police officer, must be the subject of strict scrutiny by courts to
insure that law-abiding citizens are not unlawfully induced to commit an offense. Criminals must be
caught but not at all cost. At the same time, however, examining the conduct of the police should not
disable courts into ignoring the accused's predisposition to commit the crime. If there is
overwhelming evidence of habitual delinquency, recidivism or plain criminal proclivity, then this must
also be considered. Courts should look at all factors to determine the predisposition of an accused to
commit an offense in so far as they are relevant to determine the validity of the defense of
inducement. 1âw phi 1.nêt

In the case at bar, the evidence shows that it was the confidential informant who initially contacted
accused-appellant Doria. At the pre-arranged meeting, the informant was accompanied by PO3
Manlangit who posed as the buyer of marijuana. P03 Manlangit handed the marked money to
accused-appellant Doria as advance payment for one (1) kilo of marijuana. Accused-appellant Doria
was apprehended when he later returned and handed the brick of marijuana to P03 Manlangit.
PO3 Manlangit testified in a frank, spontaneous, straightforward and categorical manner and his
credibility was not crumpled on cross-examination by defense counsel. Moreover, P03 Manlangit's
testimony was corroborated on its material points by SPO1 Badua, his back-up security. The non-
presentation of the confidential informant is not fatal to the prosecution. Informants are usually not
presented in court because of the need to hide their identity and preserve their invaluable service to
the police.93 It is well-settled that except when the appellant vehemently denies selling prohibited
drugs and there are material inconsistencies in the testimonies of the arresting officers,94 or there are
reasons to believe that the arresting officers had motives to testify falsely against the appellant,95 or
that only the informant was the poseur-buyer who actually witnessed the entire transaction,96 the
testimony of the informant may be dispensed with as it will merely be corroborative of the
apprehending officers' eyewitness testimonies.97 There is no need to present the informant in court
where the sale was actually witnessed and adequately proved by prosecution witnesses.98

The inconsistencies in P03 Manlangit's and SPO1 Badua's testimonies and the other police officers'
testimonies are minor and do not detract from the veracity and weight of the prosecution evidence.
The source of the money for the buy-bust operation is not a critical fact in the case at bar. It is
enough that the prosecution proved that money was paid to accused-appellant Doria in
consideration of which he sold and delivered the marijuana.

Contrary to accused-appellant Doria's claim, the one kilo of marijuana "sold" by him to PO3
Manlangit was actually identified by PO3 Manlangit himself before the trial court. After appellants'
apprehension, the Narcom agents placed this one (1) brick of marijuana recovered from appellant
Doria inside the carton box lumping it together with the ten (10) bricks inside. This is why the carton
box contained eleven (11) bricks of marijuana when brought before the trial court. The one (1) brick
recovered from appellant Doria and each of the ten (10) bricks, however, were identified and marked
in court. Thus:

ATTY. ARIAS, Counsel for Florencio Doria:

Mr. Police Officer, when you identified that box,. Tell the court, how
were you able to identify that box?

A This is the box that I brought to the crime laboratory which

contained the eleven pieces of marijuana brick we confiscated from
the suspect, sir.

Q Please open it and show those eleven bricks.

PROSECUTOR Witness bringing out from the said box. . .

ATTY. VALDEZ, Counsel for Violeta Gaddao:

Your Honor, I must protest the line of questioning considering the fact
that we are now dealing with eleven items when the question posed
to the witness was what was handed to him by Jun?

COURT So be it.

ATTY. ARIAS May we make it of record that the witness is pulling out
them after item from the box showed to him and brought in front of
him.
COURT Noted.

Q Now tell the court, how did you know that those are the eleven
bricks?

xxx xxx xxx

A I have markings on these eleven bricks, sir.

Q Point to the court, where are those markings?

A Here, sir, my signature, my initials with the date, sir.

PROSECUTOR Witness showed a white wrapper and pointing to

CLM and the signature.

Q Whose signature is that?

ATTY. VALDEZ Your Honor, may we just limit the inquiry to the basic
question of the fiscal as to what was handed to him by the accused
Jun, your Honor?

PROSECUTOR Your Honor, there is already a ruling by this

Honorable Court, your Honor, despite reconsideration.

COURT Let the prosecution do its own thing and leave the
appreciation of what it has done to the court.

ATTY. VALDEZ We submit, your Honor.

A This brick is the one that was handed to me by the suspect Jun, sir.

COURT Why do you know that that is the thing? Are you sure that is
not "tikoy?"

A Yes, your Honor.

Q What makes you so sure?

A I am sure that this is the one, your Honor. This is the Exhibit "A"
which I marked before I brought it to the PCCL, your Honor.

Q What are you sure of?

A I am sure that this is the brick that was given to me by one alias
Jun, sir.

Q What makes you so sure?

A Because I marked it with my own initials before giving it to the
investigator and before we brought it to the PCCL, your Honor.

xxx xxx xxx

PROSECUTOR May we request that a tag be placed on this white

plastic bag and this be marked as Exhibit "D?"

COURT Mark it as Exhibit "D."

Q To stress, who made the entries of this date, Exhibit "A" then the
other letters and figures on this plastic?

A This one, the signature, I made the signature, the date and the time
and this Exhibit "A."

Q How about this one?

A I don't know who made this marking, sir.

PROSECUTOR May it be of record that this was just entered this

morning.

Q I am asking you about this "itim" and not the "asul."

A This CLM, the date and the time and the Exhibit "A," I was the one
who made these markings, sir.

PROSECUTOR May we place on record that the one that was

enclosed. . .

ATTY. ARIAS Your Honor, there are also entries included in that
enclosure where it appears D-394-95 also Exhibit "A," etc. etc., that
was not pointed to by the witness. I want to make it of record that
there are other entries included in the enclosure.

COURT Noted. The court saw it.

Q Now, and this alleged brick of marijuana with a piece of paper, with
a newspaper wrapping with a piece of paper inside which reads: "D-
394-95, Exhibit A, 970 grams SSL" be marked as our Exhibit "D-2?"

COURT Tag it. Mark it.

Q This particular exhibit that you identified, the wrapper and the
contents was given to you by whom?

A It was given to me by suspect Jun, sir.

Q Whereat?
 A At the corner of Boulevard and Jacinto St., sir.

Q How about the other items that you were able to recover?

xxx xxx xxx

A These other marijuana bricks, because during our follow-up,

because according to Jun the money which I gave him was in the
hands of Neneth and so we proceeded to the house of Neneth, sir.

xxx xxx xxx 99

The first brick identified by P03 Manlangit was the brick of marijuana "given to [him] by suspect Jun"
at the corner of Boulevard and Jacinto Streets. This brick, including the newspaper and white plastic
wrapping were marked as Exhibits "D," "D-l," and "D-2" and described as weighing nine hundred
seventy (970) grams. 100

We also reject appellant's submission that the fact that P03 Manlangit and his team waited for
almost one hour for appellant Doria to give them the one kilo of marijuana after he "paid" P1,600.00
strains credulity. Appellant cannot capitalize on the circumstance that the money and the marijuana
in the case at bar did not change hands under the usual "kaliwaan" system. There is no rule of law
which requires that in "buy-bust" operations there must be a simultaneous exchange of the marked
money and the prohibited drug between the poseur- buyer and the pusher. 101 Again, the decisive fact
is that the poseur-buyer received the marijuana from the accused-appellant. 102

We also hold that the warrantless arrest of accused-appellant Doria is not unlawful. Warrantless
arrests are allowed in three instances as provided by Section 5 of Rule 113 of the 1985 Rules on
Criminal Procedure, to wit:

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

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

(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who escaped from a penal
establishment or place where he is serving final judgment or temporarily confined
while his case is pending, or has escaped while being transferred from one
confinement to another.

xxx xxx xxx 103

Under Section 5 (a), as above-quoted, a person may be arrested without a warrant if he "has
committed, is actually committing, or is attempting to commit an offense." Appellant Doria
was caught in the act of committing an offense. When an accused is apprehended
in flagrante delicto as a result of a buy-bust operation, the police are not only authorized but
duty-bound to arrest him even without a warrant. 104
The warrantless arrest of appellant Gaddao, the search of her person and residence, and the
seizure of the box of marijuana and marked bills are different matters.

Our Constitution proscribes search and seizure without a judicial warrant and any evidence obtained
without such warrant is inadmissible for any purpose in any proceeding. 105 The rule is, however, not
absolute. Search and seizure may be made without a warrant and the evidence obtained therefrom
may be admissible in the following instances: 106 (1) search incident to a lawful arrest;107 (2) search
of a moving motor vehicle; 108 (3) search in violation of customs laws; 109 (4) seizure of evidence in
plain view; 110 (5) when the accused himself waives his right against unreasonable searches and
seizures. 111

The prosecution admits that appellant Gaddao was arrested without a warrant of arrest and the
search and seizure of the box of marijuana and the marked bills were likewise made without a
search warrant. It is claimed, however, that the warrants were not necessary because the arrest was
made in "hot pursuit" and the search was an incident to her lawful arrest.

To be lawful, the warrantless arrest of appellant Gaddao must fall under any of the three (3)
instances enumerated in Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure as
aforequoted. The direct testimony of PO3 Manlangit, the arresting officer, however shows otherwise:

ATTY. VALDEZ, Counsel for appellant Gaddao:

We submit at this juncture, your Honor, that there will be no basis for
that question.

Q This particular exhibit that you identified, the wrapper and the
contents was given to you by whom?

A It was given to me by suspect Jun, sir.

Q Whereat?

A At the corner of Boulevard and Jacinto Street, sir.

Q How about, the other items that you were able to recover?

ATTY. VALDEZ: We submit at this juncture, your Honor, that there

will be no basis for that question.

COURT There is. Answer.

A These other marijuana bricks, because during our follow-up,

because according to Jun the money which I gave him was in the
hands of Neneth and so we proceeded to the house of Neneth, sir.

Q Whereat?

A At Daang Bakal near the crime scene at Shaw Boulevard, sir.

Q And what happened upon arrival thereat?

A We saw alias Neneth inside the house and we asked him to give us
the buy-bust money, sir.

Q You mentioned "him?"

A Her, sir. We asked her to give us the money, the marked money
which Jun gave her, sir.

Q And what happened?

A At this instance, it was SPO1 Badua who can testify regarding this
buy-bust money, sir.

xxx xxx xxx 112

SPO1 Badua testified on cross-examination that:

Q What was your intention in going to the house of Aling Neneth?

A To arrest her, sir.

Q But the fact is, Mr. Witness, when you reached the house of Aling
Neneth, Aling Neneth was there?

A Yes, sir.

Q As far as you can see, she was just inside her house?

A I saw her outside, sir.

Q She was fetching water as a matter of fact?

A She was 'sa bandang poso.'

Q Carrying a baby?

A No, sir.

Q At that particular time when you reached the house of Aling Neneth
and saw her outside the house, she was not committing any crime,
she was just outside the house?

A No, sir.

Q She was not about to commit any crime because she was just
outside the house doing her daily chores. Am I correct?

A I just saw her outside, sir.

Q And at that point in time you already wanted to arrest her. That is
correct, is it not?

A Yes, sir.

Q Now, if any memory of your testimony is correct, according to you

SPO1 Manlangit approached her?

A PO3 Manlangit, sir.

Q You did not approach her because P03 Manlangit approached her?

A Yes, sir.

Q During all the time that this confrontation, arrest or whatever by

SPO3 Manlangit was taking place, you were just in the side lines?

A I was just watching, sir.

Q So you were just an on-looker to what Manlangit was doing,

because precisely according to you your role in this buy-bust
operation was as a back-up?

A Yes, sir.

Q Who got the alleged marijuana from inside the house of Mrs.
Neneth?

A P03 Manlangit, sir.

Q Manlangit got the marijuana?

A Yes, sir.

Q And the money from Aling Neneth?

A I don't know, sir.

Q You did not even know who got the money from Aling Neneth?

PROSECUTOR:

There is no basis for this question, your Honor. Money, there 's no
testimony on that.

ATTY. VALDEZ:

I was asking him precisely.

PROSECUTOR:
 No basis.

COURT:

Sustained.

Q Alright. I will ask you a question and I expect an honest answer.

According to the records, the amount of P1,600.00 was recovered
from the person of Aling Neneth. That's right?

A Yes, sir, the buy-bust money.

Q What you are now saying for certain and for the record is the fact
that you were not the one who retrieved the money from Aling
Neneth, it was Manlangit maybe?

A I saw it, sir.

Q It was Manlangit who got the money from Aling Neneth?

A The buy-bust money was recovered from the house of Aling

Neneth, sir.

Q It was taken from the house of Aling Neneth, not from the person of
Aling Neneth. Is that what you are trying to tell the Court?

A No, sir.

ATTY. VALDEZ:

I am through with this witness, your Honor. 113

Accused-appellant Gaddao was not caught red-handed during the buy-bust operation to give ground
for her arrest under Section 5 (a) of Rule 113. She was not committing any crime. Contrary to the
finding of the trial court, there was no occasion at all for appellant Gaddao to flee from the policemen
to justify her arrest in "hot pursuit."114 In fact, she was going about her daily chores when the
policemen pounced on her.

Neither could the arrest of appellant Gaddao be justified under the second instance of Rule 113.
"Personal knowledge" of facts in arrests without warrant under Section 5 (b) of Rule 113 must be
based upon "probable cause" which means an "actual belief or reasonable grounds of
suspicion."115 The grounds of suspicion are reasonable when, in the absence of actual belief of the
arresting officers, the suspicion that the person to be arrested is probably guilty of committing the
offense, is based an actual facts, i.e., supported by circumstances sufficiently strong in themselves
to create the probable cause of guilt of the person to be arrested.116 A reasonable suspicion therefore
must be founded on probable cause, coupled with good faith on the part of the peace officers
making the arrest.117

Accused-appellant Gaddao was arrested solely on the basis of the alleged identification made by her
co-accused. PO3 Manlangit, however, declared in his direct examination that appellant Doria named
his co-accused in response to his (PO3 Manlangit's) query as to where the marked money
was.118 Appellant Doria did not point to appellant Gaddao as his associate in the drug business, but
as the person with whom he left the marked bills. This identification does not necessarily lead to the
conclusion that appellant Gaddao conspired with her co-accused in pushing drugs. Appellant Doria
may have left the money in her house,119 with or without her knowledge, with or without any
conspiracy. Save for accused-appellant Doria 's word, the Narcom agents had no reasonable
grounds to believe that she was engaged in drug pushing. If there is no showing that the person who
effected the warrantless arrest had, in his own right, knowledge of facts implicating the person
arrested to the perpetration of a criminal offense, the arrest is legally objectionable.120

Since the warrantless arrest of accused-appellant Gaddao was illegal, it follows that the search of
her person and home and the subsequent seizure of the marked bills and marijuana cannot be
deemed legal as an incident to her arrest. This brings us to the question of whether the trial court
correctly found that the box of marijuana was in plain view, making its warrantless seizure valid.

Objects falling in plain view of an officer who has a right to be in the position to have that view are
subject to seizure even without a search warrant and maybe introduced in evidence.121 The "plain
view" doctrine applies when the following requisites concur: (a) the law enforcement officer in search
of the evidence has a prior justification for an intrusion or is in a position from which he can view a
particular area; (b) the discovery of the evidence in plain view is inadvertent; (c) it is immediately
apparent to the officer that the item he observes may be evidence of a crime, contraband or
otherwise subject to seizure.122 The law enforcement officer must lawfully make an initial intrusion or
properly be in a position from which he can particularly view the area.123 In the course of such lawful
intrusion, he came inadvertently across a piece of evidence incriminating the accused.124 The object
must be open to eye and
hand125 and its discovery inadvertent.126

It is clear that an object is in plain view if the object itself is plainly exposed to sight. The difficulty
arises when the object is inside a closed container. Where the object seized was inside a closed
package, the object itself is not in plain view and therefore cannot be seized without a warrant.
However, if the package proclaims its contents, whether by its distinctive configuration, its
transparency, or if its contents are obvious to an observer, then the contents are in plain view and
may be seized.127 In other words, if the package is such that an experienced observer could infer
from its appearance that it contains the prohibited article, then the article is deemed in plain view.128 It
must be immediately apparent to the police that the items that they observe may be evidence of a
crime, contraband or otherwise subject to seizure.129

PO3 Manlangit, the Narcom agent who found the box, testified on cross-examination as follows:

ATTY. VALDEZ:

So here we are. When you and Badua arrived, Aling Neneth was
inside the house?

A Yes, sir.

Q Badua demanded from Aling Neneth the buy-bust money?

A Yes, sir.

Q At that particular instance, you saw the carton?

A Yes, sir.

Q This carton, according to you was under a table?

A Yes, sir, dining table.

Q I noticed that this carton has a cover?

A Yes, sir.

Q I ask you were the flaps of the cover raised or closed?

A It was open, sir. Not like that.

COURT

Go down there. Show to the court.

INTERPRETER

Witness went down the witness stand and approached a carton box.

A Like this, sir.

PROSECUTOR

Can we describe it?

ATTY. VALDEZ

Yes.

PROSECUTOR

One flap is inside and the other flap is standing and with the contents
visible.

COURT

Noted.

Q At this juncture, you went inside the house?

A Yes, sir.

Q And got hold of this carton?

A Yes, sir.
Q Did you mention anything to Aling Neneth?

A I asked her, what's this. . .

Q No, no. no. did you mention anything to Aling Neneth before getting
the carton?

A I think it was Badua who accosted Aling Neneth regarding the buy-
bust money and he asked "Sa iyo galing ang marijuanang ito, nasaan
ang buy-bust money namin?" sir.

Q Making reference to the marijuana that was given by alias Jun?

A Yes, sir.

Q When you proceeded to take hold of this carton, Aling Neneth was
not yet frisked, is it not [sic]?

A I just don't know if she was frisked already by Badua, sir.

Q Who got hold of this?

A I was the one, sir.

Q You were the one who got this?

A Yes, sir.

Q At that particular point in time, you did not know if the alleged buy-
bust money was already retrieved by Badua?

A Yes, sir.

Q You went inside the house?

A Yes, sir.

Q You did not have any search warrant?

A Yes, sir.

Q In fact, there was nothing yet as far as you were concerned to

validate the fact that Mrs. Gadao was in possession of the buy-bust
money because according to you, you did not know whether Badua
already retrieved the buy-bust money from her?

A Yes, sir.

Q How far was this from the door?

A Two and a half meters from the door, sir. It was in plain view.

Q Under the table according to you?

A Yes, sir, dining table.

Q Somewhere here?

A It's far, sir.

PROSECUTOR

May we request the witness to place it, where he saw it?

A Here, sir.

Q What you see is a carton?

A Yes, sir, with plastic.

Q Marked "Snow Time Ice Pop?

A Yes, sir.

Q With a piece of plastic visible on top of the carton?

A Yes, sir.

Q That is all that you saw?

A Yes, sir.

PROSECUTOR

For the record, your Honor. . .

Q You were only able to verify according to you . . .

PRESECUTOR

Panero, wait. Because I am objecting to the words a piece of plastic.

By reading it . . .

ATTY. VALDEZ

That's a piece of plastic.

PROSECUTOR
By reading it, it will connote . . . this is not a piece of plastic.

ATTY. VALDEZ

What is that? What can you say, Fiscal? I'm asking you?

PROSECUTOR

With due respect, what I am saying is, let's place the size of the
plastic. A piece of plastic may be big or a small one, for record
purposes.

COURT

Leave that to the court.

PROSECUTOR

Leave that to the court.

Q The only reason according to you, you were able to . . . Look at

this, no even Superman . . . I withdraw that. Not even a man with very
kin [sic] eyes can tell the contents here. And according to the Court, it
could be "tikoy," is it not [sic]?

A Yes, sir.

Q Siopao?

A Yes, sir.

Q Canned goods?

A Yes, sir.

Q It could be ice cream because it says Snow Pop, Ice Pop?

A I presumed it was also marijuana because it may . . .

Q I am not asking you what your presumptions are. I'm asking you
what it could possibly be.

A It's the same plastic, sir.

ATTY. VALDEZ

I'm not even asking you that question so why are you voluntarily
saying the information. Let the prosecutor do that for you.

COURT
 Continue. Next question.

xxx xxx xxx 130

P03 Manlangit and the police team were at appellant Gaddao's house because they were led
there by appellant Doria. The Narcom agents testified that they had no information on
appellant Gaddao until appellant Doria name her and led them to her.131 Standing by the door
of appellant Gaddao's house, P03 Manlangit had a view of the interior of said house. Two
and a half meters away was the dining table and underneath it was a carton box. The box
was partially open and revealed something wrapped in plastic.

In his direct examination, PO3 Manlangit said that he was sure that the contents of the box were
marijuana because he himself checked and marked the said contents.132 On cross-examination,
however, he admitted that he merely presumed the contents to be marijuana because it had the
same plastic wrapping as the "buy-bust marijuana." A close scrutiny of the records reveals that the
plastic wrapper was not colorless and transparent as to clearly manifest its contents to a viewer.
Each of the ten (10) bricks of marijuana in the box was individually wrapped in old newspaper and
placed inside plastic bags — white, pink or blue in color.133 PO3 Manlangit himself admitted on cross-
examination that the contents of the box could be items other than marijuana. He did not know
exactly what the box contained that he had to ask appellant Gaddao about its contents.134 It was not
immediately apparent to PO3 Manlangit that the content of the box was marijuana. The marijuana
was not in plain view and its seizure without the requisite search warrant was in violation of the law
and the Constitution.135 It was fruit of the poisonous tree and should have been excluded and never
considered by the trial court.136

The fact that the box containing about six (6) kilos of marijuana137 was found in the house of accused-
appellant Gaddao does not justify a finding that she herself is guilty of the crime charged.138 Apropos
is our ruling in People v. Aminnudin,139 viz:

The Court strongly supports the campaign of the government against drug addiction
and commends the efforts of our law enforcement officers against those who would
inflict this malediction upon our people, especially the susceptible youth. But as
demanding as this campaign may be, it cannot be more so than the compulsions of
the Bill of Rights for the protection of the liberty of every individual in the realm,
including the basest of criminals. The Constitution covers with the mantle of its
protection the innocent and the guilty alike against any manner of high-handedness
from the authorities, however praiseworthy their intentions.

Those who are supposed to enforce the law are not justified in disregarding the right
of the individual in the name of order. Order is too high a price for the loss of liberty.
As Justice Holmes, again, said, 'I think it a less evil that some criminals should
escape than that the government should play an ignoble part.' It is simply not allowed
in the free society to violate a law to enforce another, especially if the law violated is
the Constitution itself. 140

Section 4 of Republic Act No. 6425, the Dangerous Drugs Act of 1972, as amended by Section 13 of
Republic Act No. 7659 punishes the "sale, administration, delivery, distribution and transportation of
a prohibited drug" with the penalty of reclusion perpetua to death and a fine ranging from
P500,000.00 to P10 million, to wit:

Sec. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited

Drugs. — The penalty of reclusion perpetua to death, and a fine ranging from five
 hundred thousand pesos to ten million pesos shall be imposed upon any person
who, unless authorized by law, shall sell, administer, deliver, give away to another,
distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker
in any of such transactions.

xxx xxx xxx

In every prosecution for illegal sale of dangerous drugs, what is material is the submission of
proof that the sale took place between the poseur-buyer and the seller thereof and the
presentation of the drug, i.e., the corpus delicti, as evidence in court.141 The prosecution has
clearly established the fact that in consideration of P1,600.00 which he received, accused-
appellant Doria sold and delivered nine hundred seventy (970) grams of marijuana to PO3
Manlangit, the poseur-buyer. The prosecution, however, has failed to prove that accused-
appellant Gaddao conspired with accused-appellant Doria in the sale of said drug. There
being no mitigating or aggravating circumstances, the lower penalty of reclusion
perpetua must be imposed.142

IN VIEW WHEREOF, the decision of the Regional Trial Court, Branch 156, Pasig City acting as a
Special Court in Criminal Case No. 3307-D is reversed and modified as follows:

1. Accused-appellant Florencio Doria y Bolado is sentenced to suffer the penalty of reclusion

perpetua and to pay a fine of five hundred thousand pesos (P500,000.00).

2. Accused-appellant Violeta Gaddao y Catama is acquitted.

SO ORDERED.

G.R. No. 123595 December 12, 1997

SAMMY MALACAT y MANDAR, petitioner,

vs.
COURT OF APPEALS, and PEOPLE OF THE PHILIPPINES, respondents.

DAVIDE, JR., J.:

In an Information 1 filed on 30 August 1990, in Criminal Case No. 90-86748 before the Regional Trial
Court (RTC) of Manila, Branch 5, petitioner Sammy Malacat y Mandar was charged with violating
Section 3 of Presidential Decree No. 1866, 2 as follows:

That on or about August 27, 1990, in the City of Manila, Philippines, the said accused
did then and there willfully, unlawfully and knowingly keep, possess and/or acquire a
hand grenade, without first securing the necessary license and/or permit therefor
from the proper authorities.
At arraignment3 on 9 October 1990, petitioner, assisted by counsel de oficio, entered a plea of not
guilty.

At pre-trial on 11 March 1991, petitioner admitted the existence of Exhibits "A," "A-1," and "A-
2," 4 while the prosecution admitted that the police authorities were not armed with a search warrant
nor warrant of arrest at the time they arrested petitioner.5

At trial on the merits, the prosecution presented the following police officers as its witnesses: Rodolfo
Yu, the arresting officer; Josefino G. Serapio, the investigating officer; and Orlando Ramilo, who
examined the grenade.

Rodolfo Yu of the Western Police District, Metropolitan Police Force of the Integrated National
Police, Police Station No. 3, Quiapo, Manila, testified that on 27 August 1990, at about 6:30 p.m., in
response to bomb threats reported seven days earlier, he was on foot patrol with three other police
officers (all of them in uniform) along Quezon Boulevard, Quiapo, Manila, near the Mercury Drug
store at Plaza Miranda. They chanced upon two groups of Muslim-looking men, with each group,
comprised of three to four men, posted at opposite sides of the corner of Quezon Boulevard near the
Mercury Drug Store. These men were acting suspiciously with "[t]heir eyes. . . moving very fast."6

Yu and his companions positioned themselves at strategic points and observed both groups for
about thirty minutes. The police officers then approached one group of men, who then fled in
different directions. As the policemen gave chase, Yu caught up with and apprehended petitioner.
Upon searching petitioner, Yu found a fragmentation grenade tucked inside petitioner's "front waist
line." 7 Yu's companion, police officer Rogelio Malibiran, apprehended Abdul Casan from whom a .38
caliber revolver was recovered. Petitioner and Casan were then brought to Police Station No. 3
where Yu placed an "X" mark at the bottom of the grenade and thereafter gave it to his commander.8

On cross-examination, Yu declared that they conducted the foot patrol due to a report that a group of
Muslims was going to explode a grenade somewhere in the vicinity of Plaza Miranda. Yu recognized
petitioner as the previous Saturday, 25 August 1990, likewise at Plaza Miranda, Yu saw petitioner
and 2 others attempt to detonate a grenade. The attempt was aborted when Yu and other policemen
chased petitioner and his companions; however, the former were unable to catch any of the latter.
Yu further admitted that petitioner and Casan were merely standing on the corner of Quezon
Boulevard when Yu saw them on 27 August 1990. Although they were not creating a commotion,
since they were supposedly acting suspiciously, Yu and his companions approached them. Yu did
not issue any receipt for the grenade he allegedly recovered from petitioner.9

Josefino G. Serapio declared that at about 9:00 a.m. of 28 August 1990, petitioner and a certain
Abdul Casan were brought in by Sgt. Saquilla 10 for investigation. Forthwith, Serapio conducted the
inquest of the two suspects, informing them of their rights to remain silent and to be assisted by
competent and independent counsel. Despite Serapio's advice, petitioner and Casan manifested
their willingness to answer questions even without the assistance of a lawyer. Serapio then took
petitioner's uncounselled confession (Exh. "E"), there being no PAO lawyer available, wherein
petitioner admitted possession of the grenade. Thereafter, Serapio prepared the affidavit of arrest
and booking sheet of petitioner and Casan. Later, Serapio turned over the grenade to the
Intelligence and Special Action Division (ISAD) of the Explosive Ordinance Disposal Unit for
examination. 11

On cross-examination, Serapio admitted that he took petitioner's confession knowing it was

inadmissible in evidence. 12
Orlando Ramilo, a member of the Bomb Disposal Unit, whose principal duties included, among other
things, the examination of explosive devices, testified that on 22 March 1991, he received a request
dated 19 March 1991 from Lt. Eduardo Cabrera and PO Diosdado Diotoy for examination of a
grenade. Ramilo then affixed an orange tag on the subject grenade detailing his name, the date and
time he received the specimen. During the preliminary examination of the grenade, he "[f]ound that
[the] major components consisting of [a] high filler and fuse assembly [were] all present," and
concluded that the grenade was "[l]ive and capable of exploding." On even date, he issued a
certification stating his findings, a copy of which he forwarded to Diotoy on 11 August 1991. 13

Petitioner was the lone defense witness. He declared that he arrived in Manila on 22 July 1990 and
resided at the Muslim Center in Quiapo, Manila. At around 6:30 in the evening of 27 August 1990, he
went to Plaza Miranda to catch a breath of fresh air. Shortly after, several policemen arrived and
ordered all males to stand aside. The policemen searched petitioner and two other men, but found
nothing in their possession. However, he was arrested with two others, brought to and detained at
Precinct No. 3, where he was accused of having shot a police officer. The officer showed the
gunshot wounds he allegedly sustained and shouted at petitioner "[i]to ang tama mo sa akin." This
officer then inserted the muzzle of his gun into petitioner's mouth and said, "[y]ou are the one who
shot me." Petitioner denied the charges and explained that he only recently arrived in Manila.
However, several other police officers mauled him, hitting him with benches and guns. Petitioner
was once again searched, but nothing was found on him. He saw the grenade only in court when it
was presented. 14

The trial court ruled that the warrantless search and seizure of petitioner was akin to it a "stop and
frisk," where a "warrant and seizure can be effected without necessarily being preceded by an
arrest" and "whose object is either to maintain the status quo momentarily while the police officer
seeks to obtain more information." 15 Probable cause was not required as it was not certain that a
crime had been committed, however, the situation called for an investigation, hence to require
probable cause would have been "premature." 16 The RTC emphasized that Yu and his companions
were "[c]onfronted with an emergency, in which the delay necessary to obtain a warrant, threatens
the destruction of evidence" 17 and the officers "[h]ad to act in haste," as petitioner and his
companions were acting suspiciously, considering the time, place and "reported cases of bombing."
Further, petitioner's group suddenly ran away in different directions as they saw the arresting officers
approach, thus "[i]t is reasonable for an officer to conduct a limited search, the purpose of which is
not necessarily to discover evidence of a crime, but to allow the officer to pursue his investigation
without fear of violence." 18

The trial court then ruled that the seizure of the grenade from petitioner was incidental to a lawful
arrest, and since petitioner "[l]ater voluntarily admitted such fact to the police investigator for the
purpose of bombing the Mercury Drug Store," concluded that sufficient evidence existed to establish
petitioner's guilt beyond reasonable doubt.

In its decision 19 dated 10 February 1994 but promulgated on 15 February 1994, the trial court thus
found petitioner guilty of the crime of illegal possession of explosives under Section 3 of P.D. No.
186, and sentenced him to suffer:

[T]he penalty of not less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND
ONE (1) DAY OF RECLUSION TEMPORAL, as minimum, and not more than
THIRTY (30) YEARS OF RECLUSION PERPETUA, as maximum.

On 18 February 1994, petitioner filed a notice of appeal 20 indicating that he was appealing to this
Court. However, the record of the case was forwarded to the Court of Appeals which docketed it as
CA-G.R. CR No. 15988 and issued a notice to file briefs. 21
In his Appellant's Brief 22 filed with the Court of Appeals, petitioner asserted that:

1. THE LOWER COURT ERRED IN HOLDING THAT THE SEARCH

UPON THE PERSON OF ACCUSED-APPELLANT AND THE
SEIZURE OF THE ALLEGED HANDGRENADE FROM HIM "WAS
AN APPROPRIATE INCIDENT TO HIS ARREST."

2. THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE

AGAINST ACCUSED-APPELLANT THE HANDGRENADE
ALLEGEDLY SEIZED FROM HIM AS IT WAS A PRODUCT OF AN
UNREASONABLE AND ILLEGAL SEARCH.

In sum, petitioner argued that the warrantless arrest was invalid due to absence of any of the
conditions provided for in Section 5 of Rule 113 of the Rules of Court, citing People
vs. Mengote. 23 As such, the search was illegal, and the hand grenade seized, inadmissible in
evidence.

In its Brief for the Appellee, the Office of the Solicitor General agreed with the trial court and prayed
that its decision be affirmed in toto. 24

In its decision of 24 January 1996, 25 the Court of Appeals affirmed the trial court, noting, first, that
petitioner abandoned his original theory before the court a quo that the grenade was "planted" by the
police officers; and second, the factual finding of the trial court that the grenade was seized from
petitioner's possession was not raised as an issue. Further, respondent court focused on the
admissibility in evidence of Exhibit "D," the hand grenade seized from petitioner. Meeting the issue
squarely, the Court of Appeals ruled that the arrest was lawful on the ground that there was probable
cause for the arrest as petitioner was "attempting to commit an offense," thus:

We are at a loss to understand how a man, who was in possession of a live grenade
and in the company of other suspicious character[s] with unlicensed firearm[s] lurking
in Plaza Miranda at a time when political tension ha[d] been enkindling a series of
terroristic activities, [can] claim that he was not attempting to commit an offense. We
need not mention that Plaza Miranda is historically notorious for being a favorite
bomb site especially during times of political upheaval. As the mere possession of an
unlicensed grenade is by itself an offense, Malacat's posture is simply too
preposterous to inspire belief.

In so doing, the Court of Appeals took into account petitioner's failure to rebut the testimony of the
prosecution witnesses that they received intelligence reports of a bomb threat at Plaza Miranda; the
fact that PO Yu chased petitioner two days prior to the latter's arrest, or on 27 August 1990; and that
petitioner and his companions acted suspiciously, the "accumulation" of which was more than
sufficient to convince a reasonable man that an offense was about to be committed. Moreover, the
Court of Appeals observed:

The police officers in such a volatile situation would be guilty of gross negligence and
dereliction of duty, not to mention of gross incompetence, if they [would] first wait for
Malacat to hurl the grenade, and kill several innocent persons while maiming
numerous others, before arriving at what would then be an assured but moot
conclusion that there was indeed probable cause for an arrest. We are in agreement
with the lower court in saying that the probable cause in such a situation should not
be the kind of proof necessary to convict, but rather the practical considerations of
 everyday life on which a reasonable and prudent mind, and not legal technicians, will
ordinarily act.

Finally, the Court of Appeals held that the rule laid down in People v. Mengote, 26 which petitioner
relied upon, was inapplicable in light of "[c]rucial differences," to wit:

[In Mengote] the police officers never received any intelligence report that someone
[at] the corner of a busy street [would] be in possession of a prohibited article. Here
the police officers were responding to a [sic] public clamor to put a check on the
series of terroristic bombings in the Metropolis, and, after receiving intelligence
reports about a bomb threat aimed at the vicinity of the historically notorious Plaza
Miranda, they conducted foot patrols for about seven days to observe suspicious
movements in the area. Furthermore, in Mengote, the police officers [had] no
personal knowledge that the person arrested has committed, is actually committing,
or is attempting to commit an offense. Here, PO3 Yu [had] personal knowledge of the
fact that he chased Malacat in Plaza Miranda two days before he finally succeeded in
apprehending him.

Unable to accept his conviction, petitioner forthwith filed the instant petition and assigns the following
errors:

1. THE RESPONDENT COURT ERRED IN AFFIRMING THE

FINDING OF THE TRIAL COURT THAT THE WARRANTIES
ARREST OF PETITIONER WAS VALID AND LEGAL.

2. THE RESPONDENT COURT ERRED IN HOLDING THAT THE

RULING IN PEOPLE VS. MENGOTE DOES NOT FIND
APPLICATION IN THE INSTANT CASE.

In support thereof, petitioner merely restates his arguments below regarding the validity of
the warrantless arrest and search, then disagrees with the finding of the Court of Appeals
that he was "attempting to commit a crime," as the evidence for the prosecution merely
disclosed that he was "standing at the corner of Plaza Miranda and Quezon Boulevard" with
his eyes "moving very fast" and "looking at every person that come (sic) nearer (sic) to
them." Finally, petitioner points out the factual similarities between his case and that
of People v. Mengote to demonstrate that the Court of Appeals miscomprehended the latter.

In its Comment, the Office of the Solicitor General prays that we affirm the challenged decision..

For being impressed with merit, we resolved to give due course to the petition.

The challenged decision must immediately fall on jurisdictional grounds. To repeat, the penalty
imposed by the trial court was:

[N]ot less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1) DAY
OF RECLUSION TEMPORAL, as minimum, and not more than THIRTY (30) YEARS
OF RECLUSION PERPETUA, as maximum.

The penalty provided by Section 3 of P.D. No. 1866 upon any person who shall unlawfully
possess grenades is reclusion temporal in its maximum period to reclusion perpetua.
For purposes of determining appellate jurisdiction in criminal cases, the maximum of the penalty,
and not the minimum, is taken into account. Since the maximum of the penalty is reclusion perpetua,
the appeal therefrom should have been to us, and not the Court of Appeals, pursuant to Section 9(3)
of the Judiciary Reorganization Act of 1980 (B.P. Blg. 129), 27 in relation to Section 17 of the
Judiciary Act of 1948, 28 Section 5(2) of Article VIII of the Constitution 29 and Section 3(c) of Rule 122
of the Rules of Court. 30 The term "life imprisonment" as used in Section 9 of B.P. Blg. 129, the
Judiciary Act of 1948, and Section 3 of Rule 122 must be deemed to include reclusion perpetua in
view of Section 5(2) of Article VIII of the Constitution.

Petitioner's Notice of Appeal indicated that he was appealing from the trial court's decision to this
Court, yet the trial court transmitted the record to the Court of Appeals and the latter proceeded to
resolve the appeal.

We then set aside the decision of the Court of Appeals for having been rendered without jurisdiction,
and consider the appeal as having been directly brought to us, with the petition for review as
petitioner's Brief for the Appellant, the comment thereon by the Office of the Solicitor General as the
Brief for the Appellee and the memoranda of the parties as their Supplemental Briefs.

Deliberating on the foregoing pleadings, we find ourselves convinced that the prosecution failed to
establish petitioner's guilt with moral certainty.

First, serious doubt surrounds the story of police officer Yu that a grenade was found in and seized
from petitioner's possession. Notably, Yu did not identify, in court, the grenade he allegedly seized.
According to him, he turned it over to his commander after putting an "X" mark at its bottom;
however, the commander was not presented to corroborate this claim. On the other hand, the
grenade presented in court and identified by police officer Ramilo referred to what the latter received
from Lt. Eduardo Cabrera and police officer Diotoy not immediately after petitioner's arrest, but
nearly seven (7) months later, or on 19 March 1991; further, there was no evidence whatsoever that
what Ramilo received was the very same grenade seized from petitioner. In his testimony, Yu never
declared that the grenade passed on to Ramilo was the grenade the former confiscated from
petitioner. Yu did not, and was not made to, identify the grenade examined by Ramilo, and the latter
did not claim that the grenade he examined was that seized from petitioner. Plainly, the law
enforcement authorities failed to safeguard and preserve the chain of evidence so crucial in cases
such as these.

Second, if indeed petitioner had a grenade with him, and that two days earlier he was with a group
about to detonate an explosive at Plaza Miranda, and Yu and his fellow officers chased, but failed to
arrest them, then considering that Yu and his three fellow officers were in uniform and therefore
easily cognizable as police officers, it was then unnatural and against common experience that
petitioner simply stood there in proximity to the police officers. Note that Yu observed petitioner for
thirty minutes and must have been close enough to petitioner in order to discern petitioner's eyes
"moving very fast."

Finally, even assuming that petitioner admitted possession of the grenade during his custodial
investigation by police officer Serapio, such admission was inadmissible in evidence for it was taken
in palpable violation of Section 12(1) and (3) of Article III of the Constitution, which provide as
follows:

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.

xxx xxx xxx

(3) Any confession or admission obtained in violation of this or Section 17 hereof

shall be inadmissible in evidence against him.

Serapio conducted the custodial investigation on petitioner the day following his arrest. No
lawyer was present and Serapio could not have requested a lawyer to assist petitioner as no
PAO lawyer was then available. Thus, even if petitioner consented to the investigation and
waived his rights to remain silent and to counsel, the waiver was invalid as it was not in
writing, neither was it executed in the presence of counsel.

Even granting ex gratia that petitioner was in possession of a grenade, the arrest and search of
petitioner were invalid, as will be discussed below.

The general rule as regards arrests, searches and seizures is that a warrant is needed in order to
validly effect the same. 31 The Constitutional prohibition against unreasonable arrests, searches and
seizures refers to those effected without a validly issued warrant, 32 subject to certain exceptions. As
regards valid warrantless arrests, these are found in Section 5, Rule 113 of the Rules of Court,
which reads, in part:

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

(a) When, in his presence, the person to be arrested has committed,

is actually committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be arrested
has committed it; and

(c) When the person to be arrested is a prisoner who has escaped . .

.

A warrantless arrest under the circumstances contemplated under Section 5(a) has been
denominated as one "in flagrante delicto," while that under Section 5(b) has been described
as a "hot pursuit" arrest.

Turning to valid warrantless searches, they are limited to the following: (1) customs searches; (2)
search of moving vehicles; (3) seizure of evidence in plain view; (4) consent searches; 33 (5) a search
incidental to a lawful arrest; 34 and (6) a "stop and frisk."35

In the instant petition, the trial court validated the warrantless search as a "stop and frisk" with "the
seizure of the grenade from the accused [as an appropriate incident to his arrest," hence
necessitating a brief discussion on the nature of these exceptions to the warrant requirement.

At the outset, we note that the trial court confused the concepts of a "stop-and-frisk" and of a search
incidental to a lawful arrest. These two types of warrantless searches differ in terms of the requisite
quantum of proof before they may be validly effected and in their allowable scope.
In a search incidental to a lawful arrest, as the precedent arrest determines the validity of the
incidental search, the legality of the arrest is questioned in a large majority of these cases, e.g.,
whether an arrest was merely used as a pretext for conducting a search. 36 In this instance, the law
requires that there first be a lawful arrest before a search can be made — the process cannot be
reversed.37 At bottom, assuming a valid arrest, the arresting officer may search the person of the
arrestee and the area within which the latter may reach for a weapon or for evidence to destroy, and
seize any money or property found which was used in the commission of the crime, or the fruit of the
crime, or that which may be used as evidence, or which might furnish the arrestee with the means of
escaping or committing violence. 38

Here, there could have been no valid in flagrante delicto or hot pursuit arrest preceding the search in
light of the lack of personal knowledge on the part of Yu, the arresting officer, or an overt physical
act, on the part of petitioner, indicating that a crime had just been committed, was being committed
or was going to be committed.

Having thus shown the invalidity of the warrantless arrest in this case, plainly, the search conducted
on petitioner could not have been one incidental to a lawful arrest.

We now proceed to the justification for and allowable scope of a "stop-and-frisk" as a "limited
protective search of outer clothing for weapons," as laid down in Terry, thus:

We merely hold today that where a police officer observes unusual conduct which
leads him reasonably to conclude in light of his experience that criminal activity may
be afoot and that the persons with whom he is dealing may be armed and presently
dangerous, where in the course of investigating this behavior he identifies himself as
a policeman and makes reasonable inquiries, and where nothing in the initial stages
of the encounter serves to dispel his reasonable fear for his own or others' safety, he
is entitled for the protection of himself and others in the area to conduct a carefully
limited search of the outer clothing of such persons in an attempt to discover
weapons which might be used to assault him. Such a search is a reasonable search
under the Fourth Amendment . . . 39

Other notable points of Terry are that while probable cause is not required to conduct a "stop
and frisk," 40 it nevertheless holds that mere suspicion or a hunch will not validate a "stop and
frisk." A genuine reason must exist, in light of the police officer's experience and surrounding
conditions, to warrant the belief that the person detained has weapons concealed about
him. 41 Finally, a "stop-and-frisk" serves a two-fold interest: (1) the general interest of effective
crime prevention and detection, which underlies the recognition that a police officer may,
under appropriate circumstances and in an appropriate manner, approach a person for
purposes of investigating possible criminal behavior even without probable cause; and (2)
the more pressing interest of safety and self-preservation which permit the police officer to
take steps to assure himself that the person with whom he deals is not armed with a deadly
weapon that could unexpectedly and fatally be used against the police officer.

Here, there are at least three (3) reasons why the "stop-and-frisk" was invalid:

First, we harbor grave doubts as to Yu's claim that petitioner was a member of the group which
attempted to bomb Plaza Miranda two days earlier. This claim is neither supported by any police
report or record nor corroborated by any other police officer who allegedly chased that group. Aside
from impairing Yu's credibility as a witness, this likewise diminishes the probability that a genuine
reason existed so as to arrest and search petitioner. If only to further tarnish the credibility of Yu's
testimony, contrary to his claim that petitioner and his companions had to be chased before being
apprehended, the affidavit of arrest (Exh. "A") expressly declares otherwise, i.e., upon arrival of five
(5) other police officers, petitioner and his companions were "immediately collared."

Second, there was nothing in petitioner's behavior or conduct which could have reasonably elicited
even mere suspicion other than that his eyes were "moving very fast" — an observation which
leaves us incredulous since Yu and his teammates were nowhere near petitioner and it was already
6:30 p.m., thus presumably dusk. Petitioner and his companions were merely standing at the corner
and were not creating any commotion or trouble, as Yu explicitly declared on cross-examination:

Q And what were they doing?

A They were merely standing.

Q You are sure of that?

A Yes, sir.

Q And when you saw them standing, there were nothing or they did
not create any commotion.

A None, sir.

Q Neither did you see them create commotion?

A None, sir.42

Third, there was at all no ground, probable or otherwise, to believe that petitioner was armed with a
deadly weapon. None was visible to Yu, for as he admitted, the alleged grenade was "discovered"
"inside the front waistline" of petitioner, and from all indications as to the distance between Yu and
petitioner, any telltale bulge, assuming that petitioner was indeed hiding a grenade, could not have
been visible to Yu. In fact, as noted by the trial court:

When the policemen approached the accused and his companions, they were not yet
aware that a handgrenade was tucked inside his waistline. They did not see any
bulging object in [sic] his person. 43

What is unequivocal then in this case are blatant violations of petitioner's rights solemnly guaranteed
in Sections 2 and 12(1) of Article III of the Constitution.

WHEREFORE, the challenged decision of the Seventeenth Division of the Court of Appeals in CA-
G.R. CR No. 15988 is SET ASIDE for lack of jurisdiction on the part of said Court and, on ground of
reasonable doubt, the decision of 10 February 1994 of Branch 5 of the Regional Trial Court of
Manila is REVERSED and petitioner SAMMY MALACAT y MANDAR is hereby ACQUITTED and
ORDERED immediately released from detention, unless his further detention is justified for any other
lawful cause.

Costs de oficio.

SO ORDERED.
G.R. No. 105834 February 13, 1995

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JEAN BALINGAN Y BOBBONAN alias "SUSAN", "JANE" and "JUANA", accused-appellant.

PUNO, J.:

On April 4, l989, appellant Jean Bobbonan Balingan was arraigned and pleaded not guilty1 to the
charge of Violation of Sec. 4, Art. II of Republic Act No. 6425, otherwise known as "The Dangerous
Drugs Act," under an Information, dated October 24, 1988, which alleges:

That on or about the 31st day of August, 1988, in the City of Baguio, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, without
any authority of law, did then and there wilfully, unlawfully and feloniously and
knowingly transport and deliver prohibited drugs consisting of marijuana leaves
weighing, more or less, three (3) kilos and 500 grams from Baguio City to Metro
Manila, in violation of the above-mentioned provisions of law.

CONTRARY TO LAW.

At the trial that ensued, the prosecution and the accused presented divergent versions of what
occurred on August 31, 1988.

The prosecution evidence established that on August 31, 1988, the Narcotics Intelligence Division of
the Baguio City Police Station received a telephone call from an unnamed male informant. He
passed the information that appellant was going to Manila with a bag filled with marijuana. Acting on
the information, then P/Lt. Manuel Obrera2 formed a surveillance team monitor appellant's
movements.3 The team was deployed at different places in Baguio City, including appellant's house
on Brookside and bus stations.4

The surveillance yielded positive results. The conduct of the operations which led to the apprehesion
of appellant was accurately narrated by the trial court in its Decision, viz.:

. . . Cpl. Garcia soon reported seeing Balingan move out from her residence at
Brookside and board a taxicab which proceeded to the direction of Bonifacio Street.
Balingan was wearing a pink dress and carrying a gray luggage (like a "maleta") with
orange or yellow belts. She also reported the make and place number of the taxicab
which Balingan boarded. Upon receiving the report, Lt. Obrera ordered Cpl. Garcia to
proceed to the Philippine Rabbit Terminal in case Balingan would go there.

Pat. Kimay, who must have intercepted Cpl. Garcia's message, also reported that the
taxicab described by the latter passed along Bonifacio Rotunda. Lt. Obrera instructed
him to move out and proceed to the Police Checkpoint at Kennon Road going to the
Philippine Military Academy.
 From his post at the Dangwa Bus Station, Pat. Bueno informed
Lt. Obrera that Balingan boarded a Dangwa Bus with plate number NTU-153 bound
for Manila. Lt. Obrera promptly proceeded to the bus station to verify the report.
There, he went up the bus described by Pat. Bueno, and he saw Balingan on the
third or fourth seat behind the driver's seat. (I)n the luggage carrier above her head
was the gray luggage earlier described by Cpl. Garcia. He then left and positioned
himself with Ong at the Lakandula burned area to wait for the bus to depart.

At about 11:00 o'clock of the same morning, the bus moved out (on its way) to Manila
via Kennon Road. Lt. Obrera instructed Pat. Kimay, who was at the Kennon Road
Checkpoint, to stop the bus when it reaches the place. Meanwhile, Lt. Obrera and Lt.
Ong tailed the bus at about fifteen to twenty meters behind. As instructed, Pat. Kimay
stopped the bus at the Kennon Road Checkpoint. That was already at 11:30 o'clock
in the morning. Lt. Obrera and Pat. Ong arrived at the checkpoint less than a minute
after the bus (did) and immediately boarded it. Lt. Obrera announced a routinary
check-up identified himself as a policeman to Balingan and asked her permission to
check her luggage . . . (S)he did not respond and just looked outside the window. He
opened the luggage in the luggage carrier overhead and above Balingan and found
suspected marijuana in it. He pulled out the luggage and turned it over to Lt. Obrera.

Thereupon, Lt. Obrera tries to arrest Balingan but the latter resisted and tried to bite
his hand and furthermore held tightly (onto) the window pane. Lt. Obrera asked Pat.
Ong to fetch Cpl. Garcia from the Philippine Rabbit Terminal in the City proper, so
that she would be the one to bring out Balingan from the bus. In the meantime, he
remained inside the bus holding the confiscated luggage while the other passengers
alighted from the bus.

After some thirty minutes, Garcia arrived and pulled Balingan out of the bus and
brought her to the Baguio City Police Station and there locked her up in jail.5

The gray bag confiscated from appellant contained suspected marijuana flowering tops divided into
four bundles separately wrapped in plastic bags.6 Samples were taken from the bundles and
preliminary tests were conducted on them by Pat. Juanito G. Kimay Jr.7 Using the Duquonois levine
reagent test, he found traces of THC, an active component of marijuana, in the samples.8 Further
laboratory examinations concluded on the contents of the bag by P/Capt. Carlos V.
Figueroa,9 forensic chemist and chief of the PC-INP Crime Laboratory at Camp Dangwa, La
Trinidad, Benguet yielded the following:

Qualitative examination conducted on the above-mentioned specimen gave

POSITIVE result to the test of marijuana, a prohibited
drug.10

Appellant, as lone witness, denied the prosecution's version. She claimed that prior to her arrest, she
was living at Asin Road, Baguio City, in the house of her employer, Esper Chinonchon. Part of her
duties was to go to Manila to pick up orders for Chinonchon's woodcarving enterprise. She was
allegedly on such an errand when she was arrested by narcotics agents on August 31, 1988. 11

Appellant testified that she left Asin Road early in the morning of that fateful August day; carrying
nothing but her purse and handkerchief. 12 Instead of going directly to the bus station, she passed by
her daughter's boarding house at Brookside to drop off some money. From there, she went by jeep
to the Dangwa bus terminal where she boarded a bus going to Manila.13
It was around eleven o'clock in the morning (11:00 a.m.) when the Dangwa bus she was riding left
the terminal. 14 Shortly after, the vehicle was flagged down by policemen at a checkpoint at Kennon
Road. Several officers boarded the bus, and one of them took a gray bag from somewhere. Despite
her protestations, the officer insisted that she was "Susan" and that she owns the gray bag.
Appellant was arrested and brought to the Baguio City Police Station, where she was investigated
and consequently incarcerated. During he interrogation, appellant insisted on her innocence.15

After trial, appellant was convicted by the Regional Trial Court of Baguio City, Branch 4, 16 and
sentenced as follows:

WHEREFORE, the Court finds and declares the accused JEAN BALINGAN Y
BOBBONAN guilty beyond reasonable doubt of the crime of illegal transportation of
prohibited drugs as charged, and hereby sentences her to suffer the penalty of life
imprisonment; to pay a fine of P20,000.00 without subsidiary imprisonment in case of
insolvency; and to pay the costs.

In the service of her sentence, the accused shall be certified with her preventive
imprisonment under the terms and conditions prescribed in Article 29 of the Revised
Penal Code, as amended.

The confiscated marijuana flowering tops are hereby declared forfeited in favor of the
Government; and upon the finality of this decisions, the Branch Clerk of the Court is
directed to turn them over to the Dangerous Drugs Custodian (NBI) for disposition in
accordance with law.

SO ORDERED.

In this appeal, appellant submits that the trial court erred in: (1) not acquitting her on the ground that
her guilt had not been proved beyond reasonable doubt; (2) not considering material evidence on
record, which if considered will lead to her acquittal; (3) convicting her based entirely on conclusions
based on hearsay and conducted evidence; (4) holding that she was caught in the act of transporting
the subject prohibited drugs based on hearsay evidence; (5) holding that there was sufficient
probable cause for the police officers to believe that she was then and there committing a crime so
as to justify the warrantless search and seizure of the bag; and (6) not including the subject
prohibited drugs which are clearly products of an illegal search. 17

We are not persuaded by appellant's arguments. We affirm the trial court's Decision.

Appellant raises two (2) basic issues. The first issue is whether the required quantum of proof to
support her guilt was established by the prosecution; the second is whether the search done inside
the Dangwa bus and the consequent seizure of the marijuana flowering tops were some in violation
of the Constitution.

We hold that the prosecution was able to adduce evidence to prove appellant's guilt beyond
reasonable doubt. Witness Obrera clearly set forth in his three-day testimony 18 the events that led to
appellant's arrest, starting from the receipt by him of an informant's tip. He was able to establish that:
appellant had physical possession of the subject gray luggage bag from the time she left her house
at Brookside until she boarded and sat on the third row behind the driver of Dangwa bus with plate
number NTU-153 bound for Manila; conducted a search of the same bus at the Kennon Road
checkpoint, they found the subject gray bag on the overhead luggage compartment corresponding to
appellant's seat; upon inspection, the bag was found to contain suspected marijuana flowering tops
which even during preliminary tests yielded positive for the presence of THC, an active component
of marijuana.

After a painstaking analysis the trial court found Obrera's testimony credible, and we find no cogent
reason to set aside its characterization. Contrary to the contention of appellant, there were no major
discrepancies in Obrera's testimony that would compromise his credibility as a witness. Furthermore,
that he alone testified on the whole surveillance, search, seizure, and arrest proceedings does not
detract at all from the prosecution's case, since as the trial court stated in the impugned Decision:

The prosecution also offered the testimonies of Cpl. Garcia and Pat. Ong but after
the direct testimony of Garcia and even before Ong could take the stand, the defense
admitted that their testimonies would be corroborative to Lt. Obrera's; and, hence,
the cross examination of Garcia and the presentation of Ong were dispensed with.19

The prosecution clinched its evidence against appellant with the uncontested finding of P/Capt.
Carlos V. Figueroa that the bundles found inside the gray luggage bag seized from appellant
contained marijuana.

We also find no merit in appellant's argument that the marijuana flowering tops should be excluded
as evidence, they being the products of an alleged illegal warrantless search. The search and
seizure in the case at bench happened in a moving, public vehicle. In the recent case of People
vs. Lo Ho Wing, 193 SCRA 122 (1991), this Court gave its approval to a warrantless search done on
a taxicab which yielded the illegal drug commonly known as shabu. In that case, we raciocinated:

Anent the first assignment of error, appellant contends that the warrantless search
and seizure made against the accused is illegal for being violative of Section 2,
Article III of the Constitution. He reasons that the FC-CIS officers concerned could
very well have procured a search warrant since they had been informed of the date
and time of arrival of the accused at the NAIA well ahead of time, specifically two (2)
days in advance. The fact that the search and seizure in question were made an a
moving vehicle, appellant argues, does not automatically make the warrantless
search herein fall within the coverage of the well-known exception to the rule of the
necessity of a valid warrant to effect a search because, as aforementioned, the anti-
narcotics agents had both time and opportunity to secure a search warrant.

The contentions are without writ. As correctly averred by appellee, that search and
seizure must be supported by a valid warrant is not an absolute rule. There are at
least three (3) well-recognized exceptions thereto. As set forth in the case
of Manipon, Jr. vs. Sandiganbayan, these are: [1] a search incidental to an arrest,
[2] a search of a moving vehicle, and [3] seizure of evidence in plain view (emphasis
supplied). The circumstances of the case clearly show that the search in question
was made as regards a moving vehicle. Therefore, a valid warrant was not
necessary to effect the search on appellant and his co-accused.

In this connection, We cite with approval the averment of the Solicitor General, as
contained in the appellee's brief, that the rules governing search and seizure have
over the years been steadily liberalized whenever a moving vehicle is the object of
the search on the basis of practicality. This is so considering that before a warrant
could be obtained, the place, things and persons to be searched must be described
to the satisfaction of the issuing judge — a requirement which boarders on the
impossible in the case of smuggling effected by the use of a moving vehicle that can
transport contraband from one place to another with impunity. We might add that a
 warrantless search of a moving vehicle is justified on the ground that "it is not
practicable to secure a warrant because the vehicle can be quickly moved out of the
locality or jurisdiction in which the warrant must be sought."

In the instant case, it was firmly established from the factual findings of the trial court
that the authorities had reasonable ground to believe that appellant would attempt to
bring in contraband and transport it within the country. The belief was based on
intelligence reports gathered from surveillance activities on the suspected syndicate,
of which appellant was touted to be a member. Aside from this, they were also
certain as to the expected date and time of arrival of the accused from China. But
such knowledge was clearly insufficient to enable them to fulfill the requirements for
the issuance of a search warrant. Still and all, the important thing is that there was
probable cause to conduct the warrantless search, which must still be present in
such a case. (Citations omitted.)

Unquestionably, the warrantless search in the case at bench is not bereft of a probable cause. The
Baguio INP Narcotics Intelligence Division received an information that appellant was going to
transport marijuana in a bag to Manila. Their surveillance operations revealed that appellant, whose
movements had been previously monitored by the Narcotics Division boarded a Dangwa bus bound
for Manila carrying a suspicious looking gray luggage bag. When the moving, public bus was
stopped, her bag, upon inspection, yielded marijuana. Under those circumstances, the warrantless
search of appellant's bag was not illegal.

IN VIEW WHEREOF, the conviction of appellant JEAN BOBBONAN BALINGAN is affirmed in toto.
Cost against appellant.

SO ORDERED.

G.R. No. L-27360 February 28, 1968

HON. RICARDO G. PAPA, as Chief of Police of Manila; HON. JUAN PONCE ENRILE, as
Commissioner of Customs; PEDRO PACIS, as Collector of Customs of the Port of Manila; and
MARTIN ALAGAO, as Patrolman of the Manila Police Department, petitioners,
vs.
REMEDIOS MAGO and HILARION U. JARENCIO, as Presiding Judge of Branch 23, Court of
First Instance of Manila, respondents.

Office of the Solicitor General for petitioners.

Juan T. David for respondents.

ZALDIVAR, J.:

This is an original action for prohibition and certiorari, with preliminary injunction filed by
Ricardo Papa, Chief of Police of Manila; Juan once Enrile, Commissioner of Customs; Pedro Pacis,
Collector of Customs of the Port of Manila; and Martin Alagao, a patrolman of the Manila Police
Department, against Remedios Mago and Hon. Hilarion Jarencio, Presiding Judge of Branch 23 of
the Court of First Instance of Manila, praying for the annulment of the order issued by respondent
Judge in Civil Case No. 67496 of the Court of First Instance of Manila under date of March 7, 1967,
which authorized the release under bond of certain goods which were seized and held by petitioners
in connection with the enforcement of the Tariff and Customs Code, but which were claimed by
respondent Remedios Mago, and to prohibit respondent Judge from further proceeding in any
manner whatsoever in said Civil Case No. 67496. Pending the determination of this case this Court
issued a writ of preliminary injunction restraining the respondent Judge from executing, enforcing
and/or implementing the questioned order in Civil Case No. 67496 and from proceeding with said
case.

Petitioner Martin Alagao, head of the counter-intelligence unit of the Manila Police
Department, acting upon a reliable information received on November 3, 1966 to the effect that a
certain shipment of personal effects, allegedly misdeclared and undervalued, would be released the
following day from the customs zone of the port of Manila and loaded on two trucks, and upon orders
of petitioner Ricardo Papa, Chief of Police of Manila and a duly deputized agent of the Bureau of
Customs, conducted surveillance at gate No. 1 of the customs zone. When the trucks left gate No. 1
at about 4:30 in the afternoon of November 4, 1966, elements of the counter-intelligence unit went
after the trucks and intercepted them at the Agrifina Circle, Ermita, Manila. The load of the two trucks
consisting of nine bales of goods, and the two trucks, were seized on instructions of the Chief of
Police. Upon investigation, a person claimed ownership of the goods and showed to the policemen a
"Statement and Receipts of Duties Collected in Informal Entry No. 147-5501", issued by the Bureau
of Customs in the name of a certain Bienvenido Naguit.

Claiming to have been prejudiced by the seizure and detention of the two trucks and their
cargo, Remedios Mago and Valentin B. Lanopa filed with the Court of First Instance of Manila a
petition "for mandamus with restraining order or preliminary injunction, docketed as Civil Case No.
67496, alleging, among others, that Remedios Mago was the owner of the goods seized, having
purchased them from the Sta. Monica Grocery in San Fernando, Pampanga; that she hired the
trucks owned by Valentin Lanopa to transport, the goods from said place to her residence at 1657
Laon Laan St., Sampaloc, Manila; that the goods were seized by members of the Manila Police
Department without search warrant issued by a competent court; that anila Chief of Police Ricardo
Papa denied the request of counsel for Remedios Mago that the bales be not opened and the goods
contained therein be not examined; that then Customs Commissioner Jacinto Gavino had illegally
assigned appraisers to examine the goods because the goods were no longer under the control and
supervision of the Commissioner of Customs; that the goods, even assuming them to have been
misdeclared and, undervalued, were not subject to seizure under Section 2531 of the Tariff and
Customs Code because Remedios Mago had bought them from another person without knowledge
that they were imported illegally; that the bales had not yet been opened, although Chief of Police
Papa had arranged with the Commissioner of Customs regarding the disposition of the goods, and
that unless restrained their constitutional rights would be violated and they would truly suffer
irreparable injury. Hence, Remedios Mago and Valentin Lanopa prayed for the issuance of a
restraining order, ex parte, enjoining the above-named police and customs authorities, or their
agents, from opening the bales and examining the goods, and a writ of mandamus for the return of
the goods and the trucks, as well as a judgment for actual, moral and exemplary damages in their
favor.

On November 10, 1966, respondent Judge Hilarion Jarencio issued an order ex

parte restraining the respondents in Civil Case No. 67496 — now petitioners in the instant case
before this Court — from opening the nine bales in question, and at the same time set the hearing of
the petition for preliminary injunction on November 16, 1966. However, when the restraining order
was received by herein petitioners, some bales had already been opened by the examiners of the
Bureau of Customs in the presence of officials of the Manila Police Department, an assistant city
fiscal and a representative of herein respondent Remedios Mago.
 Under date of November 15, 1966, Remedios Mago filed an amended petition in Civil Case
No. 67496, including as party defendants Collector of Customs Pedro Pacis of the Port of Manila
and Lt. Martin Alagao of the Manila Police Department. Herein petitioners (defendants below) filed,
on November 24, 1966, their "Answer with Opposition to the Issuance of a Writ of Preliminary
Injunction", denying the alleged illegality of the seizure and detention of the goods and the trucks
and of their other actuations, and alleging special and affirmative defenses, to wit: that the Court of
First Instance of Manila had no jurisdiction to try the case; that the case fell within the exclusive
jurisdiction of the Court of Tax Appeals; that, assuming that the court had jurisdiction over the case,
the petition stated no cause of action in view of the failure of Remedios Mago to exhaust the
administrative remedies provided for in the Tariff and Customs Code; that the Bureau of Customs
had not lost jurisdiction over the goods because the full duties and charges thereon had not been
paid; that the members of the Manila Police Department had the power to make the seizure; that the
seizure was not unreasonable; and the persons deputized under Section 2203 (c) of the Tariff and
Customs Code could effect search, seizures and arrests in inland places in connection with the
enforcement of the said Code. In opposing the issuance of the writ of preliminary injunction, herein
petitioners averred in the court below that the writ could not be granted for the reason that Remedios
Mago was not entitled to the main reliefs she prayed for; that the release of the goods, which were
subject to seizure proceedings under the Tariff and Customs Code, would deprive the Bureau of
Customs of the authority to forfeit them; and that Remedios Mago and Valentin Lanopa would not
suffer irreparable injury. Herein petitioners prayed the court below for the lifting of the restraining
order, for the denial of the issuance of the writ of preliminary injunction, and for the dismissal of the
case.

At the hearing on December 9, 1966, the lower Court, with the conformity of the parties,
ordered that an inventory of the goods be made by its clerk of court in the presence of the
representatives of the claimant of the goods, the Bureau of Customs, and the Anti-Smuggling Center
of the Manila Police Department. On December 13, 1966, the above-named persons filed a
"Compliance" itemizing the contents of the nine bales.

Herein respondent Remedios Mago, on December 23, 1966, filed an ex parte motion to
release the goods, alleging that since the inventory of the goods seized did not show any article of
prohibited importation, the same should be released as per agreement of the patties upon her
posting of the appropriate bond that may be determined by the court. Herein petitioners filed their
opposition to the motion, alleging that the court had no jurisdiction to order the release of the goods
in view of the fact that the court had no jurisdiction over the case, and that most of the goods, as
shown in the inventory, were not declared and were, therefore, subject to forfeiture. A supplemental
opposition was filed by herein petitioners on January 19, 1967, alleging that on January 12, 1967
seizure proceedings against the goods had been instituted by the Collector of Customs of the Port of
Manila, and the determination of all questions affecting the disposal of property proceeded against in
seizure and forfeiture proceedings should thereby be left to the Collector of Customs. On January
30, 1967, herein petitioners filed a manifestation that the estimated duties, taxes and other charges
due on the goods amounted to P95,772.00. On February 2, 1967, herein respondent Remedios
Mago filed an urgent manifestation and reiteration of the motion for the release under bond of the
goods.

On March 7, 1967, the respondent Judge issued an order releasing the goods to herein
respondent Remedios Mago upon her filing of a bond in the amount of P40,000.00, and on March
13, 1967, said respondent filed the corresponding bond.

On March 13, 1967, herein petitioner Ricardo Papa, on his own behalf, filed a motion for
reconsideration of the order of the court releasing the goods under bond, upon the ground that the
Manila Police Department had been directed by the Collector of Customs of the Port of Manila to
hold the goods pending termination of the seizure proceedings.
 Without waiting for the court's action on the motion for reconsideration, and alleging that they
had no plain, speedy and adequate remedy in the ordinary course of law, herein petitioners filed the
present action for prohibition and certiorari with preliminary injunction before this Court. In their
petition petitioners alleged, among others, that the respondent Judge acted without jurisdiction in
ordering the release to respondent Remedios Mago of the disputed goods, for the following reasons:
(1) the Court of First Instance of Manila, presided by respondent Judge, had no jurisdiction over the
case; (2) respondent Remedios Mago had no cause of action in Civil Case No. 67496 of the Court of
First Instance of Manila due to her failure to exhaust all administrative remedies before invoking
judicial intervention; (3) the Government was not estopped by the negligent and/or illegal acts of its
agent in not collecting the correct taxes; and (4) the bond fixed by respondent Judge for the release
of the goods was grossly insufficient.

In due time, the respondents filed their answer to the petition for prohibition and certiorari in
this case. In their answer, respondents alleged, among others: (1) that it was within the jurisdiction of
the lower court presided by respondent Judge to hear and decide Civil Case No. 67496 and to issue
the questioned order of March 7, 1967, because said Civil Case No. 67496 was instituted long
before seizure, and identification proceedings against the nine bales of goods in question were
instituted by the Collector of Customs; (2) that petitioners could no longer go after the goods in
question after the corresponding duties and taxes had been paid and said goods had left the
customs premises and were no longer within the control of the Bureau of Customs; (3) that
respondent Remedios Mago was purchaser in good faith of the goods in question so that those
goods can not be the subject of seizure and forfeiture proceedings; (4) that the seizure of the goods
was affected by members of the Manila Police Department at a place outside control of jurisdiction of
the Bureau of Customs and affected without any search warrant or a warrant of seizure and
detention; (5) that the warrant of seizure and detention subsequently issued by the Collector of
Customs is illegal and unconstitutional, it not being issued by a judge; (6) that the seizing officers
have no authority to seize the goods in question because they are not articles of prohibited
importation; (7) that petitioners are estopped to institute the present action because they had agreed
before the respondent Judge that they would not interpose any objection to the release of the goods
under bond to answer for whatever duties and taxes the said goods may still be liable; and (8) that
the bond for the release of the goods was sufficient.

The principal issue in the instant case is whether or not, the respondent Judge had acted with
jurisdiction in issuing the order of March 7, 1967 releasing the goods in question.

The Bureau of Customs has the duties, powers and jurisdiction, among others, (1) to assess
and collect all lawful revenues from imported articles, and all other dues, fees, charges, fines and
penalties, accruing under the tariff and customs laws; (2) to prevent and suppress smuggling and
other frauds upon the customs; and (3) to enforce tariff and customs laws. 1 The goods in question
were imported from Hongkong, as shown in the "Statement and Receipts of Duties Collected on
Informal Entry". 2 As long as the importation has not been terminated the imported goods remain
under the jurisdiction of the Bureau of customs. Importation is deemed terminated only upon the
payment of the duties, taxes and other charges upon the articles, or secured to be paid, at the port
of entry and the legal permit for withdrawal shall have been granted. 3 The payment of the duties,
taxes, fees and other charges must be in full. 4

The record shows, by comparing the articles and duties stated in the aforesaid "Statement and
Receipts of Duties Collected on Informal Entry" with the manifestation of the Office of the Solicitor
General 5 wherein it is stated that the estimated duties, taxes and other charges on the goods subject
of this case amounted to P95,772.00 as evidenced by the report of the appraiser of the Bureau of
Customs, that the duties, taxes and other charges had not been paid in full. Furthermore, a
comparison of the goods on which duties had been assessed, as shown in the "Statement and
Receipts of Duties Collected on Informal Entry" and the "compliance" itemizing the articles found in
the bales upon examination and inventory, 6 shows that the quantity of the goods was underdeclared,
presumably to avoid the payment of duties thereon. For example, Annex B (the statement and
receipts of duties collected) states that there were 40 pieces of ladies' sweaters, whereas Annex H
(the inventory contained in the "compliance") states that in bale No. 1 alone there were 42 dozens
and 1 piece of ladies' sweaters of assorted colors; in Annex B, only 100 pieces of watch bands were
assessed, but in Annex H, there were in bale No. 2, 209 dozens and 5 pieces of men's metal watch
bands (white) and 120 dozens of men's metal watch band (gold color), and in bale No. 7, 320
dozens of men's metal watch bands (gold color); in Annex B, 20 dozens only of men's handkerchief
were declared, but in Annex H it appears that there were 224 dozens of said goods in bale No. 2,
120 dozens in bale No. 6, 380 dozens in bale No. 7, 220 dozens in bale No. 8, and another 200
dozens in bale No. 9. The articles contained in the nine bales in question, were, therefore, subject to
forfeiture under Section 2530, pars. e and m, (1), (3), (4), and (5) of the Tariff and Customs Code.
And this Court has held that merchandise, the importation of which is effected contrary to law, is
subject to forfeiture, 7 and that goods released contrary to law are subject to seizure and forfeiture. 8

Even if it be granted, arguendo, that after the goods in question had been brought out of the
customs area the Bureau of Customs had lost jurisdiction over the same, nevertheless, when said
goods were intercepted at the Agrifina Circle on November 4, 1966 by members of the Manila Police
Department, acting under directions and orders of their Chief, Ricardo C. Papa, who had been
formally deputized by the Commissioner of Customs, 9 the Bureau of Customs had regained
jurisdiction and custody of the goods. Section 1206 of the Tariff and Customs Code imposes upon
the Collector of Customs the duty to hold possession of all imported articles upon which duties,
taxes, and other charges have not been paid or secured to be paid, and to dispose of the same
according to law. The goods in question, therefore, were under the custody and at the disposal of
the Bureau of Customs at the time the petition for mandamus, docketed as Civil Case No. 67496,
was filed in the Court of First Instance of Manila on November 9, 1966. The Court of First Instance of
Manila, therefore, could not exercise jurisdiction over said goods even if the warrant of seizure and
detention of the goods for the purposes of the seizure and forfeiture proceedings had not yet been
issued by the Collector of Customs.

The ruling in the case of "Alberto de Joya, et al. v. Hon. Gregorio Lantin, et al.," G.R. No. L-
24037, decided by this Court on April 27, 1967, is squarely applicable to the instant case. In the De
Joya case, it appears that Francindy Commercial of Manila bought from Ernerose Commercial of
Cebu City 90 bales of assorted textiles and rags, valued at P117,731.00, which had been imported
and entered thru the port of Cebu. Ernerose Commercial shipped the goods to Manila on board an
inter-island vessel. When the goods where about to leave the customs premises in Manila, on
October 6, 1964, the customs authorities held them for further verification, and upon examination the
goods were found to be different from the declaration in the cargo manifest of the carrying vessel.
Francindy Commercial subsequently demanded from the customs authorities the release of the
goods, asserting that it is a purchaser in good faith of those goods; that a local purchaser was
involved so the Bureau of Customs had no right to examine the goods; and that the goods came
from a coastwise port. On October 26, 1964, Francindy Commercial filed in the Court of First
Instance of Manila a petition for mandamus against the Commissioner of Customs and the Collector
of Customs of the port of Manila to compel said customs authorities to release the goods.

Francindy Commercial alleged in its petition for mandamus that the Bureau of Customs had
no jurisdiction over the goods because the same were not imported to the port of Manila; that it was
not liable for duties and taxes because the transaction was not an original importation; that the
goods were not in the hands of the importer nor subject to importer's control, nor were the goods
imported contrary to law with its (Francindy Commercial's) knowledge; and that the importation had
been terminated. On November 12, 1964, the Collector of Customs of Manila issued a warrant of
seizure and identification against the goods. On December 3, 1964, the Commissioner of Customs
and the Collector of Customs, as respondents in the mandamus case, filed a motion to dismiss the
petition on the grounds of lack of jurisdiction, lack of cause of action, and in view of the pending
seizure and forfeiture proceedings. The Court of First Instance held resolution on the motion to
dismiss in abeyance pending decision on the merits. On December 14, 1964, the Court of First
Instance of Manila issued a preventive and mandatory injunction, on prayer by Francindy
Commercial, upon a bond of P20,000.00. The Commissioner of Customs and the Collector of
Customs sought the lifting of the preliminary and mandatory injunction, and the resolution of their
motion to dismiss. The Court of First Instance of Manila, however, on January 12, 1965, ordered
them to comply with the preliminary and mandatory injunction, upon the filing by Francindy
Commercial of an additional bond of P50,000.00. Said customs authorities thereupon filed with this
Court, on January 14, 1965, a petition for certiorari and prohibition with preliminary injunction. In
resolving the question raised in that case, this Court held:

This petition raises two related issues: first, has the Customs bureau jurisdiction to
seize the goods and institute forfeiture proceedings against them? and (2) has the Court of
First Instance jurisdiction to entertain the petition for mandamus to compel the Customs
authorities to release the goods?

Francindy Commercial contends that since the petition in the Court of first Instance
was filed (on October 26, 1964) ahead of the issuance of the Customs warrant of seizure
and forfeiture (on November 12, 1964),the Customs bureau should yield the jurisdiction of
the said court.

The record shows, however, that the goods in question were actually seized on
October 6, 1964, i.e., before Francindy Commercial sued in court. The purpose of the
seizure by the Customs bureau was to verify whether or not Custom duties and taxes were
paid for their importation. Hence, on December 23, 1964, Customs released 22 bales
thereof, for the same were found to have been released regularly from the Cebu Port
(Petition Annex "L"). As to goods imported illegally or released irregularly from Customs
custody, these are subject to seizure under Section 2530 m. of the Tariff and Customs Code
(RA 1957).

The Bureau of Customs has jurisdiction and power, among others to collect revenues
from imported articles, fines and penalties and suppress smuggling and other frauds on
customs; and to enforce tariff and customs laws (Sec. 602, Republic Act 1957).

The goods in question are imported articles entered at the Port of Cebu. Should they
be found to have been released irregularly from Customs custody in Cebu City, they are
subject to seizure and forfeiture, the proceedings for which comes within the jurisdiction of
the Bureau of Customs pursuant to Republic Act 1937.

Said proceeding should be followed; the owner of the goods may set up defenses
therein (Pacis v. Averia, L-22526, Nov. 20, 1966.) From the decision of the Commissioner of
Customs appeal lies to the Court of Tax Appeals, as provided in Sec. 2402 of Republic Act
1937 and Sec. 11 of Republic Act, 1125. To permit recourse to the Court of First Instance in
cases of seizure of imported goods would in effect render ineffective the power of the
Customs authorities under the Tariff and Customs Code and deprive the Court of Tax
Appeals of one of its exclusive appellate jurisdictions. As this Court has ruled in Pacis v.
Averia, supra, Republic Acts 1937 and 1125 vest jurisdiction over seizure and forfeiture
proceedings exclusively upon the Bureau of Customs and the Court of Tax Appeals. Such
law being special in nature, while the Judiciary Act defining the jurisdiction of Courts of First
Instance is a general legislation, not to mention that the former are later enactments, the
Court of First Instance should yield to the jurisdiction of the Customs authorities.
 It is the settled rule, therefore, that the Bureau of Customs acquires exclusive jurisdiction over
imported goods, for the purposes of enforcement of the customs laws, from the moment the goods
are actually in its possession or control, even if no warrant of seizure or detention had previously
been issued by the Collector of Customs in connection with seizure and forfeiture proceedings. In
the present case, the Bureau of Customs actually seized the goods in question on November 4,
1966, and so from that date the Bureau of Customs acquired jurisdiction over the goods for the
purposes of the enforcement of the tariff and customs laws, to the exclusion of the regular courts.
Much less then would the Court of First Instance of Manila have jurisdiction over the goods in
question after the Collector of Customs had issued the warrant of seizure and detention on January
12, 1967. 10 And so, it cannot be said, as respondents contend, that the issuance of said warrant was
only an attempt to divest the respondent Judge of jurisdiction over the subject matter of the case.
The court presided by respondent Judge did not acquire jurisdiction over the goods in question when
the petition for mandamus was filed before it, and so there was no need of divesting it of jurisdiction.
Not having acquired jurisdiction over the goods, it follows that the Court of First Instance of Manila
had no jurisdiction to issue the questioned order of March 7, 1967 releasing said goods.

Respondents also aver that petitioner Martin Alagao, an officer of the Manila Police
Department, could not seize the goods in question without a search warrant. This contention cannot
be sustained. The Chief of the Manila Police Department, Ricardo G. Papa, having been deputized
in writing by the Commissioner of Customs, could, for the purposes of the enforcement of the
customs and tariff laws, effect searches, seizures, and arrests, 11 and it was his duty to make seizure,
among others, of any cargo, articles or other movable property when the same may be subject to
forfeiture or liable for any fine imposed under customs and tariff laws. 12 He could lawfully open and
examine any box, trunk, envelope or other container wherever found when he had reasonable cause
to suspect the presence therein of dutiable articles introduced into the Philippines contrary to law;
and likewise to stop, search and examine any vehicle, beast or person reasonably suspected of
holding or conveying such article as aforesaid. 13 It cannot be doubted, therefore, that petitioner
Ricardo G. Papa, Chief of Police of Manila, could lawfully effect the search and seizure of the goods
in question. The Tariff and Customs Code authorizes him to demand assistance of any police officer
to effect said search and seizure, and the latter has the legal duty to render said assistance. 14 This
was what happened precisely in the case of Lt. Martin Alagao who, with his unit, made the search
and seizure of the two trucks loaded with the nine bales of goods in question at the Agrifina Circle.
He was given authority by the Chief of Police to make the interception of the cargo. 15

Petitioner Martin Alagao and his companion policemen had authority to effect the seizure
without any search warrant issued by a competent court. The Tariff and Customs Code does not
require said warrant in the instant case. The Code authorizes persons having police authority under
Section 2203 of the Tariff and Customs Code to enter, pass through or search any land, inclosure,
warehouse, store or building, not being a dwelling house; and also to inspect, search and examine
any vessel or aircraft and any trunk, package, or envelope or any person on board, or to stop and
search and examine any vehicle, beast or person suspected of holding or conveying any dutiable or
prohibited article introduced into the Philippines contrary to law, without mentioning the need of a
search warrant in said cases. 16 But in the search of a dwelling house, the Code provides that said
"dwelling house may be entered and searched only upon warrant issued by a judge or justice of the
peace. . . ." 17 It is our considered view, therefor, that except in the case of the search of a dwelling
house, persons exercising police authority under the customs law may effect search and seizure
without a search warrant in the enforcement of customs laws.

Our conclusion finds support in the case of Carroll v. United States, 39 A.L.R., 790, 799,
wherein the court, considering a legal provision similar to Section 2211 of the Philippine Tariff and
Customs Code, said as follows:
 Thus contemporaneously with the adoption of the 4th Amendment, we find in the first
Congress, and in the following second and fourth Congresses, a difference made as to the
necessity for a search warrant between goods subject to forfeiture, when concealed in a
dwelling house of similar place, and like goods in course of transportation and concealed in a
movable vessel, where readily they could be put out of reach of a search warrant. . . .

Again, by the 2d section of the Act of March 3, 1815 (3 Stat. at L.231, 232, chap. 94), it
was made lawful for customs officers not only to board and search vessels within their own
and adjoining districts, but also to stop, search and examine any vehicle, beast or person on
which or whom they should suspect there was merchandise which was subject to duty, or
had been introduced into the United States in any manner contrary to law, whether by the
person in charge of the vehicle or beast or otherwise, and if they should find any goods,
wares, or merchandise thereon, which they had probably cause to believe had been so
unlawfully brought into the country, to seize and secure the same, and the vehicle or beast
as well, for trial and forfeiture. This Act was renewed April 27, 1816 (3 Sta. at L. 315, chap.
100), for a year and expired. The Act of February 28, 1865, revived § 2 of the Act of 1815,
above described, chap. 67, 13 Stat. at L. 441. The substance of this section was re-enacted
in the 3d section of the Act of July 18, 1866, chap. 201, 14 Stat. at L. 178, and was thereafter
embodied in the Revised Statutes as § 3061, Comp. Stat. § 5763, 2 Fed. Stat. Anno. 2d ed.
p. 1161. Neither § 3061 nor any of its earlier counterparts has ever been attacked as
unconstitutional. Indeed, that section was referred to and treated as operative by this court in
Von Cotzhausen v. Nazro, 107 U.S. 215, 219, 27 L. ed. 540, 541, 2 Sup. Ct. Rep. 503. . . .

In the instant case, we note that petitioner Martin Alagao and his companion policemen did not
have to make any search before they seized the two trucks and their cargo. In their original petition,
and amended petition, in the court below Remedios Mago and Valentin Lanopa did not even allege
that there was a search. 18 All that they complained of was,

That while the trucks were on their way, they were intercepted without any search
warrant near the Agrifina Circle and taken to the Manila Police Department, where they were
detained.

But even if there was a search, there is still authority to the effect that no search warrant would
be needed under the circumstances obtaining in the instant case. Thus, it has been held that:

The guaranty of freedom from unreasonable searches and seizures is construed as

recognizing a necessary difference between a search of a dwelling house or other structure
in respect of which a search warrant may readily be obtained and a search of a ship,
motorboat, wagon, or automobile for contraband goods, where it is not practicable to secure
a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which
the warrant must be sought. (47 Am. Jur., pp. 513-514, citing Carroll v. United States, 267
U.S. 132, 69 L. ed., 543, 45 S. Ct., 280, 39 A.L.R., 790; People v. Case, 320 Mich., 379, 190
N.W., 389, 27 A.L.R., 686.)

In the case of People v. Case (320 Mich., 379, 190 N.W., 389, 27 A.L.R., 686), the question
raised by defendant's counsel was whether an automobile truck or an automobile could be searched
without search warrant or other process and the goods therein seized used afterwards as evidence
in a trial for violation of the prohibition laws of the State. Same counsel contended the negative,
urging the constitutional provision forbidding unreasonable searches and seizures. The Court said:
 . . . Neither our state nor the Federal Constitution directly prohibits search and seizure
without a warrant, as is sometimes asserted. Only "unreasonable" search and seizure is
forbidden. . . .

. . . The question whether a seizure or a search is unreasonable in the language of the

Constitution is a judicial and not a legislative question; but in determining whether a seizure
is or is not unreasonable, all of the circumstances under which it is made must be looked to.

The automobile is a swift and powerful vehicle of recent development, which has
multiplied by quantity production and taken possession of our highways in battalions until the
slower, animal-drawn vehicles, with their easily noted individuality, are rare. Constructed as
covered vehicles to standard form in immense quantities, and with a capacity for speed
rivaling express trains, they furnish for successful commission of crime a disguising means of
silent approach and swift escape unknown in the history of the world before their advent. The
question of their police control and reasonable search on highways or other public places is
a serious question far deeper and broader than their use in so-called "bootleging" or "rum
running," which is itself is no small matter. While a possession in the sense of private
ownership, they are but a vehicle constructed for travel and transportation on highways.
Their active use is not in homes or on private premises, the privacy of which the law
especially guards from search and seizure without process. The baffling extent to which they
are successfully utilized to facilitate commission of crime of all degrees, from those against
morality, chastity, and decency, to robbery, rape, burglary, and murder, is a matter of
common knowledge. Upon that problem a condition, and not a theory, confronts proper
administration of our criminal laws. Whether search of and seizure from an automobile upon
a highway or other public place without a search warrant is unreasonable is in its final
analysis to be determined as a judicial question in view of all the circumstances under which
it is made.

Having declared that the seizure by the members of the Manila Police Department of the
goods in question was in accordance with law and by that seizure the Bureau of Customs had
acquired jurisdiction over the goods for the purpose of the enforcement of the customs and tariff
laws, to the exclusion of the Court of First Instance of Manila, We have thus resolved the principal
and decisive issue in the present case. We do not consider it necessary, for the purposes of this
decision, to discuss the incidental issues raised by the parties in their pleadings.

WHEREFORE, judgment is hereby rendered, as follows:

(a) Granting the writ of certiorari and prohibition prayed for by petitioners;

(b) Declaring null and void, for having been issued without jurisdiction, the order of respondent
Judge Hilarion U. Jarencio, dated March 7, 1967, in Civil Code No. 67496 of the Court of First
Instance of Manila;

(c) Declaring permanent the preliminary injunction issued by this Court on March 31, 1967
restraining respondent Judge from executing, enforcing and/or implementing his order of March 7,
1967 in Civil Case No. 67496 of the Court of First Instance of Manila, and from proceeding in any
manner in said case;

(d) Ordering the dismissal of Civil Case No. 67496 of the Court of First Instance of Manila;
and 1äwphï1.ñët

(e) Ordering the private respondent, Remedios Mago, to pay the costs.
 It is so ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Sanchez, Castro, Angeles and
Fernando, JJ., concur. 1äw phï1.ñët

G.R. No. L-25434 July 25, 1975

HONORABLE ARSENIO N. ROLDAN, JR., in his capacity as Acting Commissioner, Philippine

Fisheries Commission, and THE PHILIPPINE NAVY, petitioners,
vs.
HONORABLE FRANCISCO ARCA, as Presiding Judge of the Court of First Instance of Manila
(Branch 1) and MORABE, DE GUZMAN & COMPANY, respondents.

Office of the Solicitor General Arturo A. Alafriz and Solicitor Augusto M. Amores for petitioners.

J. C. Yuseco and A.R. Narvasa for private respondent.

MAKASIAR, J.:

A petition for certiorari and prohibition with preliminary injunction to restrain respondent Judge from
enforcing his order dated October 18, 1965, and the writ of preliminary mandatory injunction
thereunder issued.

On April 3, 1964, respondent company filed with the Court of First Instance of Manila a civil case
docketed as No. 56701 against petitioner Fisheries Commissioner Arsenio N. Roldan, Jr., for the
recovery of fishing vessel Tony Lex VI (one of two fishing boats in question) which had been seized
and impounded by petitioner Fisheries Commissioner through the Philippine Navy.

On April 10, 1964, respondent company prayed for a writ of preliminary mandatory injunction with
respondent court, but said prayer was, however, denied.

On April 28, 1964, the Court of First Instance of Manila set aside its order of April 10, 1964 and
granted respondent company's motion for reconsideration praying for preliminary mandatory
injunction. Thus, respondent company took Possession of the vessel Tony Lex VI from herein
petitioners by virtue of the abovesaid writ.

On December 10, 1964, the Court of First Instance of Manila dismissed Civil Case No. 56701 for
failure of therein petitioner (respondent company herein) to prosecute as well as for failure of therein
defendants (petitioners herein)to appear on the scheduled date of hearing. The vessel, Tony Lex VI
or Srta. Winnie however, remained in the possession of respondent company.

On July 20, 1965, petitioner Fisheries Commissioner requested the Philippine Navy to apprehend
vessels Tony Lex VI and Tony Lex III, also respectively called Srta. Winnie and Srta. Agnes, for
alleged violations of some provisions of the Fisheries Act and the rules and regulations promulgated
thereunder.

On August 5 or 6, 1965, the two fishing boats were actually seized for illegal fishing with dynamite.
Fish caught with dynamite and sticks of dynamite were then found aboard the two vessels.

On August 18, 1965, the Fisheries Commissioner requested the Palawan Provincial Fiscal to file
criminal charges against the crew members of the fishing vessels.

On September 30, 1965, there were filed in the court of First Instance of Palawan a couple of
informations, one against the crew members of Tony Lex III, and another against the crew members
of Tony Lex VI — both for violations of Act No. 4003, as amended by Commonwealth Acts Nos. 462,
659 and 1088, i.e., for illegal fishing with the use of dynamite. On the same day, the Fiscal filed
an ex parte motion to hold the boats in custody as instruments and therefore evidence of the crime
(p. 54, rec.), and cabled the Fisheries Commissioner to detain the vessels (p. 56, rec.).

On October 2 and 4, likewise, the Court of First Instance of Palawan ordered the Philippine Navy to
take the boats in custody.

On October 2, 1965, respondent company filed a complaint with application for preliminary
mandatory injunction, docketed as Civil Case No. 62799 with the Court of First Instance of Manila
against herein petitioners. Among others, it was alleged that at the time of the seizure of the fishing
boats in issue, the same were engaged in legitimate fishing operations off the coast of Palawan; that
by virtue of the offer of compromise dated September 13, 1965 by respondent company to the
Secretary of Agriculture and Natural Resources, the numerous violations of the Fishery Laws, if any,
by the crew members of the vessels were settled.

On October 9, 1965, petitioners, represented by the Solicitor General, opposed the above-
mentioned complaint, alleging among others, that: (1) the issuance of the writ would disrupt
the status quo of the parties and would render nugatory any decision of the respondent court
favorable to the defendant; (2) that the vessels, being instruments of a crime in criminal cases Nos.
3416 and 3417 filed with the Court of First Instance of Palawan, the release of the vessels sans the
corresponding order from the above-mentioned court would deprive the same of its authority to
dispose of the vessels in the criminal cases and the Provincial Fiscal would not be able to utilize said
vessels as evidence in the prosecution of said cases; (3) that as petitioners herein were in
possession of one of the vessels in point, they cannot now be deprived of the legal custody thereof
by reason of the dismissal of Civil Case No. 56701; (4) that petitioner Fisheries Commissioner has
the power to seize and detain the vessels pursuant to Section 5 of Republic Act No. 3215 in relation
to Sections 903 and 2210 of the Revised Tariff and Customs Code; (5) that respondents herein have
not exhausted administrative remedies before coming to court; (6) that the compromise agreement
approved by the Secretary of Agriculture and Natural Resources and indorsed to the Fisheries
Commissioner is never a bar to the prosecution of the crime perpetrated by the crew members of the
vessels belonging to respondent company.

And again, on October 15, 1965, herein petitioners filed their memorandum praying for the denial of
the application for preliminary mandatory injunction. On the same day, October 15, 1965, herein
petitioners filed an urgent motion to submit additional documentary evidence.

On October 18, 1965, herein petitioners, as defendants in said Civil Case No. 62799, filed their
answer to the complaint with affirmative defenses, reiterating the grounds in their opposition to the
issuance of a writ of preliminary mandatory injunction and adding that herein private respondent
admitted committing the last violation when it offered in its letter dated September 21, 1965 to the
Acting Commissioner of Fisheries, to compromise said last violation (Exh. 12, pp. 60-61, rec.).

On said day, October 18, 1965, the respondent Judge issued the challenged order granting the
issuance of the writ of preliminary mandatory injunction and issued the preliminary writ upon the
filing by private respondent of a bond of P5,000.00 for the release of the two vessels(pp. 95-102,
rec.).

On October 19, 1965, herein petitioners filed a motion for reconsideration of the order issuing the
preliminary writ on October 18, 1965 on the ground, among others, that on October 18, 1965 the
Philippine Navy received from the Palawan Court of First Instance two orders dated October 2 and
4, 1965 requiring the Philippine Navy to hold the fishing boats in custody and directing that the said
vessels should not be released until further orders from the Court, and that the bond of P5,000.00 is
grossly insufficient to cover the Government's losses in case the two vessels, which are worth
P495,000.00, are placed beyond the reach of the Government, thus frustrating their forfeiture as
instruments of the crime (pp. 103-109, rec.).1äw phï1.ñët

On November 23, 1965, respondent Judge denied the said motion for reconsideration (p. 110, rec.).

WE rule that the respondent Judge of the Manila Court of First Instance acted without jurisdiction
and with grave abuse of discretion when he issued on October 18, 1965 the order directing the
issuance of a writ of preliminary mandatory injunction and when he refused to reconsider the same.

When the respondent Judge issued the challenged order on October 18, 1965 and the writ of
preliminary mandatory injunction pursuant thereto, the fishing vessels were already under the
jurisdiction of the Court of First Instance of Palawan by virtue of its orders of October 2 and 4, 1965,
upon motion of the Provincial Fiscal (pp. 54, 55, rec.), directing the Philippine Navy to detain (pp.
108, 109, rec.) said vessels, which are subject to forfeiture as instruments of the crime, to be utilized
as evidence in Criminal Cases Nos. 3416 and 3417 for illegal fishing pending in said court (pp. 54-
55, rec.). The said vessels were seized while engaging in prohibited fishing within the territorial
waters of Palawan (pp. 45, 48,-53, rec.) and hence within the jurisdiction of the Court of First
Instance of Palawan, in obedience to the rule that "the place where a criminal offense was
committed not only determines the venue of the action but is an essential element of
jurisdiction"(Lopez vs. Paras, L-25795, Oct. 29, 1966, 18 SCRA 616, 619). The jurisdiction over the
vessels acquired by the Palawan Court of First Instance cannot be interfered with by another Court
of First Instance. The orders of October 2 and 4, 1965 by the Palawan Court of First Instance
expressly direct the Philippine Navy "to hold in custody" the two vessels and that "same should not
be released without prior order or authority from this Court" (pp. 108, 109, rec.). Only the Palawan
court can order the release of the two vessels. Not even the Secretary of Agriculture and Natural
Resources nor the Fisheries Commissioner can direct that the fishing boats be turned over to private
respondent without risking contempt of court.

The grave abuse of discretion committed by the respondent Judge was heightened by the fact that
he did not reconsider his order of October 18, 1965 after he was informed by petitioners in their
motion for reconsideration filed on October 19, 1965 that the Palawan Court of First Instance had
already issued the two orders dated October 2 and 4, 1965 directing the Philippine Navy to hold in
custody the fishing boats until further orders.

It is basic that one court cannot interfere with the judgments, orders or decrees of another court of
concurrent or coordinate jurisdiction having equal power to grant the relief sought by injunction;
because if coordinate courts were allowed to interfere with each other's judgments, decrees or
injunctions, the same would obviously lead to confusion and might seriously hinder the
administration of justice (Ongsinco, etc. vs. Tan, et al., 97 Phil. 330; PNB vs. Javellana, 92 Phil. 525;
Montesa vs. Manila Cordage Company, 92 Phil. 25; Hubahib vs. Insular Drug Company, 64 Phil.
119; Hacbang, et al. vs. The Leyte Auto Bus Company, et al., G.R. No. L-17907, May 30, 1963, 8
SCRA, 103, 107-109; NPC vs. Hon. Jesus de Vera, G.R. No. L-15763, Dec. 22, 1961, 3 SCRA, 646,
648; Cabigao vs. del Rosario, 44 Phil. 182; Araneta & Uy vs. Commonwealth Insurance Company,
55 OG 431; Moran, Comments on the Rules of Court, Vol. III, 1970 ed., p. 64).

As early as October 2 and 4, 1965, the two boats were already in custodia legis under the sole
control of the Palawan Court of First Instance. The Manila Court of First Instance cannot interfere
with and change that possession (Hacbang vs. Leyte Bus Co., Inc., supra; NPC vs. Hon. Jesus de
Vera, supra).

It is immaterial that the vessels were then in the Philippine Navy basin in Manila; for the same in no
way impugns the jurisdiction already vested in the Palawan court, which has custody thereof through
the Philippine Navy. This is analogous to the situation in Colmenares versus Villar (L-27124, May 29,
1970, 33 SCRA 186, 188-9), wherein We ruled "where the illegal possession of firearms was
committed in the town where the Court sits, the fact that the firearms were confiscated from the
accused in another town does not affect the jurisdiction of the Court" (pp. 186, 189).

It is likewise of no moment that the herein respondents were not notified by the herein petitioners of
the seizure of the questioned vessels by the Philippine Navy, because such previous notice is not
required by law.

II

The dismissal on December 10, 1964 of the first Civil Case No. 56701 by the Court of First Instance
of Manila had the necessary effect of automatically dissolving the writ of preliminary mandatory
injunction issued therein on April 28, 1964, directing the return of fishing vessel Tony Lex VI (pp.
156-157, rec.). Such a preliminary writ, like any other interlocutory order, cannot survive the main
case of which it was but an incident; because "an ancillary writ of preliminary injunction loses its
force and effect after the dismissal of the main petition" (National Sugar Workers' Union, etc., vs. La
Carlota Sugar Central, et al., L-23569, May 25, 1972, 45 SCRA 104, 109; Lazaro vs. Mariano, 59
Phil. 6Z7, 631; Saavedra vs. Ibañez, 56 Phil. 33, 37; Hi Caiji vs. Phil. Sugar Estate and Development
Company, 50 Phil. 592, 594). 1äw phï1.ñët

Moreover, the writ of preliminary injunction issued on April 28, 1964 in Civil Case No. 56701 was
directed against the detention of the vessel Tony Lex VI for violations committed prior to August 5,
1965, and therefore cannot and does not extend to the seizure and detention of said vessel for
violations on August 5 or 6, 1965, which violations were not and could not possibly be the subject-
matter of said Civil Case No. 56701 which was filed on April 3, 1964 (p. 12, rec.).

III

Herein petitioners can validly direct and/or effect the seizure of the vessels of private respondent for
illegal fishing by the use of dynamite and without the requisite licenses.

Section 4 of Republic Act No. 3512 approved on March 20, 1963 empowers the Fisheries
Commissioner to carry out the provisions of the Fisheries Act, as amended, and all rules and
regulations promulgated thereunder, to make searches and seizures personally or through his duly
authorized representatives in accordance with the Rules of Court, of "explosives such as
... dynamites and the like ...; including fishery products, fishing equipment, tackle and other things
that are subject to seizure under existing fishery laws"; and "to effectively implement the
enforcement of existing fishery laws on illegal fishing."

Paragraph 5 of Section 4 of the same Republic Act 3512 likewise transferred to and vested in the
Philippine Fisheries Commission "all the powers, functions and duties heretofore exercised by the
Bureau of Customs, Philippine Navy and Philippine Constabulary over fishing vessels and fishery
matters ..."

Section 12 of the Fisheries Act, otherwise known as Republic Act No. 4003, as amended, prohibits
fishing with dynamites or other explosives which is penalized by Section 76 thereof "by a fine of not
less than P1,500.00 nor more than P5,000.00, and by imprisonment for not less than one (1) year
and six (6) months nor more than five (5) years, aside from the confiscation and forfeiture of all
explosives, boats, tackles, apparel, furniture, and other apparatus used in fishing in violation of said
Section 12 of this Act." Section 78 of the same Fisheries Law provides that "in case of a second
offense, the vessel, together with its tackle, apparel, furniture and stores shall be forfeited to the
Government."

The second paragraph of Section 12 also provides that "the possession and/or finding, of dynamite,
blasting caps and other explosives in any fishing boat shall constitute a presumption that the said
dynamite and/or blasting caps and explosives are being used for fishing purposes in violation of this
Section, and that the possession or discovery in any fishing boat or fish caught or killed by the use of
dynamite or other explosives, under expert testimony, shall constitute a presumption that the owner,
if present in the fishing boat, or the fishing crew have been fishing with dynamite or other
explosives." (Emphasis supplied).

Under Section 78 of the Fisheries Act, as amended, any person, association or corporation fishing in
deep sea fishery without the corresponding license prescribed in Sections 17 to 22 Article V of the
Fisheries Act or any other order or regulation deriving force from its provisions, "shall be punished
for each offense by a fine of not more than P5,000.00, or imprisonment, for not more than one year,
or both, in the discretion of the Court; Provided, That in case of an association or corporation, the
President or manager shall be directly responsible for the acts of his employees or laborers if it is
proven that the latter acted with his knowledge; otherwise the responsibility shall extend only as far
as fine is concerned: Provided, further, That in the absence of a known owner of the vessel, the
master, patron or person in charge of such vessel shall be responsible for any violation of this
Act: and Provided, finally, That in case of a second offense, the vessel together with its tackle,
apparel, furniture and stores shall be forfeited to the Government" (Emphasis supplied).

Under Section 13 of Executive Order No. 389 of December 23, 1950, reorganizing the Armed Forces
of the Philippines, the Philippine Navy has the function, among others, "to assist the proper
governmental agencies in the enforcement of laws and regulations pertaining to ... fishing ..." (46 OG
5905, 5911).

Section 2210 of the Tariff and Customs Code, as amended by PD No. 34 of October 27, 1972,
authorized any official or person exercising police authority under the provisions of the Code, to
search and seize any vessel or air craft as well as any trunk, package, bag or envelope on board
and to search any person on board for any breach or violation of the customs and tariff laws.

When the Philippine Navy, upon request of the Fisheries Commissioner, apprehended on August 5
or 6, 1965 the fishing boats Tony Lex III and Tony Lex VI, otherwise known respectively as Srta.
Agnes and Srta. Winnie, these vessels were found to be without the necessary license in violation of
Section 903 of the Tariff and Customs Code and therefore subject to seizure under Section 2210 of
the same Code, and illegally fishing with explosives and without fishing license required by Sections
17 and 18 of the Fisheries Law (pp. 46-47, rec.).1äw phï1.ñët

The operation of the fishing boat Tony Lex III was suspended pursuant to the order dated January
28, 1964 issued by the Commissioner of Fisheries pending the final determination of the case
against it for illegal fishing with explosives on January 21, 1964 (p. 34, rec.) and remained
suspended until its apprehension on August 5 or 6, 1965 (p. 46, rec.).

For illegal fishing with explosives on March 23, 1963, the renewal of the fishing boat license of Tony
Lex VI was suspended for one year from the time said boat was moored at Pier 14 at North Harbor,
Manila, without prejudice to the institution of a criminal case against its owner and/or operator,
pursuant to the order dated May 19, 1964 issued by the Commissioner of Fisheries (pp. 35-36, rec.),
the motion for reconsideration of which order was denied by the Commissioner of Fisheries in an
order dated August 17, 1964 (pp. 41-42, rec.).

For illegal fishing with dynamite on March 28, 1963, the operation of Tony Lex VI was suspended by
the Commissioner of Fisheries in an order dated April 1, 1963 (p. 62, rec.).

For illegal fishing again with explosives on April 25, 1963, the fishing boat Tony Lex VI together with
its tackle, apparel, furniture and all other apparatus used in fishing was ordered confiscated and
forfeited in favor of the Government and a fine in the amount of P5,000.00 was imposed on its
owners-operators, without prejudice to the filing of the necessary criminal action, pursuant to the
order of June 2, 1964 of the Commissioner of Fisheries(pp. 37-38, rec.).

Again, for comitting the same violation on June 19, 1963, a fine in the amount of P5,000.00 was
imposed on the owners-operators of fishing boat Tony Lex VI pursuant to the order of June 4, 1964
issued by the Commissioner of Fisheries (pp. 39-40, rec.)..

It appears, therefore, that since January 28, 1964, the fishing boat Tony Lex III was suspended from
operating and was ordered moored at Pier 14, North Harbor, Manila (pp. 34, 46-47, rec.); and that
the fishing vessel Tony Lex VI was suspended for one year from May 24, 1964 and was actually
ordered forfeited to the Government pursuant to the order of June 2, 1964 for repeated violations of
Section 12 of the Fisheries Act (pp. 37- 38. rec.). As a matter of fact, when apprehended on August
1äw phï1.ñët

5 or 6, 1965, both vessels were found to be without any license or permit for coastwise trade or for
fishing and unlawfully fishing with explosives, for which reason their owners and crew were
accordingly indicted by the Provincial Fiscal of Palawan for illegal fishing with dynamite and without
the requisite license (pp. 48-53, rec.).

As heretofore intimated, the two fishing boats were apprehended on numerous occasions for fishing
with dynamite from March 28, 1963 to March 11, 1964, which violations private respondent, as
owner-operator, sought to compromise by offering to pay a fine of P21,000.00 for all said prior
violations.

Such previous violations of Sections 12, 17 and 18 of the Fisheries Act committed by the two fishing
boats, Tony Lex III and Tony Lex VI, from March 28, 1963 until August 5 or 6, 1965, rendered the
said vessels subject to forfeiture under Sections 76 and 78 of the Fisheries Act, as amended.

Search and seizure without search warrant of vessels and air crafts for violations of the customs
laws have been the traditional exception to the constitutional requirement of a search warrant,
because the vessel can be quickly moved out of the locality or jurisdiction in which the search
warrant must be sought before such warrant could be secured; hence it is not practicable to require
a search warrant before such search or seizure can be constitutionally effected (Papa vs. Mago, L-
27360, Feb. 28, 1968, 22 SCRA 857, 871-74; Magoncia vs. Palacio, 80 Phil. 770, 774; Caroll vs.
U.S. 267, pp. 132, 149, 158; Justice Fernando, The Bill of Rights, 1972 ed., p. 225; Gonzales,
Philippine Constitutional Law, 1966 ed., p. 300).

The same exception should apply to seizures of fishing vessels breaching our fishery laws. They are
usually equipped with powerful motors that enable them to elude pursuing ships of the Philippine
Navy or Coast Guard.

Another exception to the constitutional requirement of a search warrant for a valid search and
seizure, is a search or seizure as an incident to a lawful arrest (Alvero vs. Dizon, 76 Phil. 637;
Justice Fernando, The Bill of Rights, 1972 ed., p. 224). Under our Rules of Court, a police officer or
a private individual may, without a warrant, arrest a person (a) who has committed, is actually
committing or is about to commit an offense in his presence; (b) who is reasonably believed to have
committed an offense which has been actually committed; or (c) who is a prisoner who has escaped
from confinement while serving a final judgment or from temporary detention during the pendency of
his case or while being transferred from one confinement to another (Sec. 6, Rule 113, Revised
Rules of Court). In the case at bar, the members of the crew of the two vessels were
caught in flagrante illegally fishing with dynamite and without the requisite license. Thus their
apprehension without a warrant of arrest while committing a crime is lawful. Consequently, the
seizure of the vessel, its equipment and dynamites therein was equally valid as an incident to a
lawful arrest.

The alleged compromise approved by the Secretary of Agriculture and Natural Resources on
September 13, 1965 (pp. 63-64, 158-159, rec.) cannot be invoked by the respondents because the
said compromise referred to about thirty violations of the fisheries law committed by the private
respondent from March 28, 1963 to March 11, 1964. The violations by the two vessels of private
respondent by reason of which these vessels were apprehended and detained by the Philippine
Navy upon request of the Commissioner of Fisheries, were committed on August 5 or 6, 1965.

Moreover, the power to compromise would exist only before a criminal prosecution is instituted;
otherwise the Department Secretary or any of his sub-alterns can render criminal prosecutions for
violations of the fisheries law a mere mockery. It is not in the public interest nor is it good policy to
sustain the viewpoint that the Department Secretary can compromise criminal cases involving public,
not private, offenses after the indictment had been instituted in court. The fishing vessels together
with all their equipment and the dynamites found therein are not only evidence of the crime of illegal
fishing but also subject to forfeiture in favor of the Government as instruments of the crime (Art. 45,
Revised Penal Code, Sec. 78, Act No. 4003, as amended). Section 80(j) of Act No. 4003, as
amended, precludes such a compromise the moment the Fisheries Commissioner decides to
prosecute the criminal action in accordance with Sections 76 and 78 of the other penal provisions of
the fisheries law. Furthermore, any compromise shall be upon the recommendation of the Fisheries
Commission (Section 80[i], Act No. 4003), which did not recommend such a compromise for the
violation on August 5 or 6, 1965 of Section 12 in relation to Sections 76 and 78 of Act No. 4003, as
amended. On the contrary, the Fisheries Commissioner requested the Provincial Fiscal to institute
the criminal cases (pp. 43-45, rec.) and the Provincial Fiscal filed the corresponding informations
docketed as Criminal Cases Nos. 3416 and 3417 on September 30, 1965 against the owners and
the members of the crew of the vessels (pp. 48-53, rec.).

It should be noted that in the first indorsement dated September 13, 1965 of the Secretary of
Agriculture and Natural Resources approving the compromise fine of P21,000.00 for the various
violations committed previous to August 5 or 6, 1965 (pp. 34-42, 47, 58-64, 149-155, 158-159, rec.),
the Department Secretary "believes that the offer made by the company was an implied admission of
violations of said provisions of the Fisheries Law and regulations, ..." (pp. 63, 158, rec.). The said
approval was granted after the private respondent filed a motion for reconsideration of the
indorsement dated March 5, 1965 of the Secretary of Agriculture and Natural Resources
disapproving the offer by private respondent to pay the fine by way of compromise.

There can be no dispute that the term fishing boat (employed in the second paragraph of Section 12
of the Fisheries Act applies to the vessels Tony Lex III and Tony Lex VI. Even private respondent
refers to said fishing boats as fishing vessels "engaged in fishing operations" or "in commercial
fishing" in paragraph IV of its complaint in Civil Case No. 62799 (p. 18, rec.), as well as in its various
communications to the Fisheries Commissioner (pp. 60-61, 65, 82, rec.). The two fishing vessels
1äw phï1.ñët

Tony Lex III and Tony Lex VI likewise fall under the term vessel used in Sections 17, 76 and 78, as
well as the term boats utilized in the second paragraph of Section 76 of the Fisheries Act. They can
also fall under the term fishing equipment employed in Section 4 of Republic Act No. 3512; because
a fishing equipment is never complete and cannot be effectively used in off-shore or deep-sea
fishing without the fishing boat or fishing vessel itself. And these two vessels of private respondent
certainly come under the term fishing vessels employed in paragraph 5 of Section 4 of the same
Republic Act 3512 creating the Fisheries Commission.

Hence, no useful purpose can be served in trying to distinguish between boat and vessel with
reference to Tony Lex III and Tony Lex VI. As a matter of fact, the accepted definition
of vessel includes "every description of water craft, large or small, used or capable of being used as
a means of transportation on water" (Cope versus Vallete, etc., 199 U.S. 625; U.S. vs. Holmes, 104
Fed. 884; Charles Barnes Co. vs. One Dredge Boat, 169 Fed. 895; and Yu Con vs. Ipil, 41 Phil.
780).

The word boat in its ordinary sense, means any water craft (Monongahela River Construction, etc.
vs. Hardsaw, 77 NE 363, 365). The fishing boats Tony Lex III and Tony Lex VI are likewise vessels
within the meaning of the term vessel used in Sections 903 and 2210 of the Tariff and Customs
Code.

WHEREFORE, THE PETITION IS HEREBY GRANTED AND THE ORDER OF RESPONDENT

JUDGE DATED OCTOBER 18, 1965, THE WRIT OF PRELIMINARY MANDATORY INJUNCTION
ISSUED THEREUNDER AND THE ORDER DATED NOVEMBER 23, 1965, ARE HEREBY SET
ASIDE AS NULL AND VOID, WITH COSTS AGAINST PRIVATE RESPONDENT.

Castro (Chairman,), Esguerra, Muñoz Palma and Martin, JJ., concur.

Teehankee, J., took no part.

G.R. Nos. 129756-58 January 28, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JULIAN DEEN ESCAÑO, VIRGILIO TOME USANA and JERRY CASABAAN LOPEZ, accused,
VIRGILIO TOME USANA and JERRY CASABAAN LOPEZ, accused-appellants.
DAVIDE, JR., C.J.:

Accused-appellants Virgilio T. Usana and Jerry C. Lopez, together with Julian D. Escaño, were
charged before the Regional Trial Court of Makati City, Branch 64, in Criminal Case No. 95-936 with
violation of Section 4, Article II of Republic Act No. 6425,1 as amended. Escaño and Usana were also
charged in Criminal Case No. 95-937 and No. 95-938 with illegal possession of firearms and
ammunition in violation of Presidential Decree No. 1866.

The accusatory portion of the Information in Criminal Case No. 95-936 reads as follows:

That on or about the 5th day of April, 1995, in the City of Makati, Metro Manila, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and
confederating together and all of them mutually helping and aiding one another, without
being authorized by law, did then and there willfully, unlawfully and feloniously sell, distribute
and transport 3.3143 kilograms of "HASHISH", a prohibited drug, in violation of the above-
cited law.2

The charge against accused Julian D. Escaño in Criminal Case No. 95-937 reads as follows:

That on or about the 5th day of April, 1995, in the City of Makati, Metro Manila, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused did then and
there willfully, unlawfully and feloniously have in his possession, direct custody and control
one (1) pc. of cal. .45 pistol, government model with Serial No. 990255, with magazine
containing 7 live ammos and two (2) more magazines for cal. .45 pistol containing 7 live
ammos each, without first securing the necessary license or permit from the proper
government authorities and which firearm and ammunitions he carried outside of his
residence.3

The accusatory portion of the information against Virgilio Usana in Criminal Case No. 95-938 reads:

That on or about the 5th day of April, 1995, in the City of Makati, Metro Manila, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused, did then and
there willfully, unlawfully and feloniously have in his possession, direct custody and control
One (1) pc. of rifle carbine with Serial No. 7176644 with a banana type magazine loaded with
28 live ammunitions without first securing the necessary license or permit from the proper
government authorities and which firearms and ammunitions he carried outside of his
residence.4

The cases were consolidated and jointly tried.

In its Decision of 30 May 1997,5 which was promulgated on 17 June 1997, the trial court convicted
Escaño and herein appellants in Criminal Case No. 95-936, Escaño in Criminal Case No. 95-937,
and appellant Usana in Criminal Case No. 95-938.

Escaño filed on 19 June 1997 a Notice of Appeal, but on 16 July 1997, he filed a Manifestation and
Withdrawal of Appeal,6 which was granted by the trial court in its Order of 1 7 July 1997.7

Usana and Lopez filed a Notice of Appeal on 30 June 1997,8 manifesting therein that they were
appealing to this Court and to the Court of Appeals. Considering the penalties imposed, the decision
in Criminal Case No. 95-936 was appealed to this Court, while the Court of Appeals took cognizance
of the appeal from Criminal Case No. 95-938. In its Order of 30 June 1997,9 the trial court gave due
course to the appeal and ordered the transmittal of the record in Criminal Case No. 95-936 to this
Court and the record of Criminal Case No. 95-938 to the Court of Appeals.

Accordingly, it is only the appeal from the judgment in Criminal Case No. 95-936 that is now before
this Court.

Due to the differing versions of the parties, there is a need to narrate each of the testimonies of the
key players in this case.

The prosecution has this version of the events: On the 5th of April 1995 and during a COMELEC gun
ban, some law enforcers of the Makati Police, namely, PO3 Eduardo P. Suba, PO3 Bernabe Nonato,
SPO4 Juan de los Santos, and Inspector Ernesto Guico,10 were manning a checkpoint at the corner
of Senator Gil Puyat Ave. and the South Luzon Expressway (SLEX).11 They were checking the cars
going to Pasay City, stopping those they found suspicious, and imposing merely a running stop on
the others. At about past midnight, they stopped a Kia Pride car with Plate No. TBH 493.12 PO3 Suba
saw a long firearm on the lap of the person seated at the passenger seat, who was later identified as
Virgilio Usana. They asked the driver, identified as Escaño, to open the door. PO3 Suba seized the
long firearm, an M-1 US Carbine, from Usana. When Escaño, upon order of the police, parked along
Sen. Gil Puyat Ave., the other passengers were search for more weapons. Their search yielded a
.45 caliber firearm which they seized from Escaño.13

The three passengers were thereafter brought to the police station Block 5 in the Kia Pride driven by
PO3 Nonato.14 Upon reaching the precinct, Nonato turned over the key to the desk officer. Since
SPO4 de los Santos was suspicious of the vehicle, he requested Escaño to open the trunk.15 Escaño
readily agreed and opened the trunk himself using his key.16 They noticed a blue bag inside it,17 which
they asked Escaño to open. The bag contained a parcel wrapped in tape,18 which, upon examination
by National Bureau of Investigation Forensic Chemist Emilia A. Rosaldos, was found positive for
hashish weighing 3.3143 kilograms.19

A certification was issued by the Firearms and Explosive Office of the National Police Commission
(NAPOLCOM) to the effect that Escaño was not a licensed/registered firearms holder of any kind
and caliber. Usana, however, according to the same certification is a licensed/registered holder of a
pistol Colt .45 caliber with license issued on 14 October 1994 and to expire on April 1996. Usana
also has an application for a pistol Uzi Cal. 9mm. Neither of the two guns seized were
licensed/registered with the NAPOLCOM.20

For his part, Escaño (or Jovy) testified that on the 4th of April 1995, between 11:00 and 11:30 in the
morning, he was at the lobby of Legend Hotel, at Pioneer St., Mandaluyong City, to meet with his
business partners, including Usana and Lopez. He saw his friend and erstwhile co-employee at
Philippine Airlines, Ramon Cabrera, who had borrowed his wife's car. Since it was his wife's birthday
the following day, he asked Cabrera if he could get back the car. Cabrera readily gave him the keys
of the car.21

He left the hotel at around 11:45 in the evening with Usana and Lopez. Using his wife's car, they
cruised southward along Epifanio de los Santos Avenue (EDSA) and turned right at Sen. Gil Puyat
Avenue. They stopped before crossing SLEX because the traffic light turned red. From the other
side of SLEX, he could see a group of policemen. Upon crossing SLEX, they were flagged down by
one of the policemen, so he slowed down and stopped. PO3 Nonato asked him to roll down the
window and demanded to see his license. He asked if he had committed any violation, but PO3
Nonato accused him of being drunk, which he denied. The policemen persisted in asking for his
license, but he did not budge and instead reiterated that there was no reason for him to surrender
his license for he had not committed any violation. A verbal tussle ensued resulting in the drawing of
firearms by the policemen which prompted Usana to suggest that they go to the police station
because the policemen were carrying guns and they have not done anything wrong.22

He stated further that he was the one who drove to the police station along Dian St. with his
companions. He parked the car then they were brought to the office of the Deputy Station
Commander, Lieutenant Eco.23 The policemen asked if they could search his car. He then inquired if
he was not entitled to a lawyer and why they needed to conduct a search when they had not even
told him what he had violated. Apparently, he thought they were there only for verification purposes.
Lt. Eco explained that that was the reason why they were going to search his car, to see if he had
done anything illegal. Although the police were insistent in asking for the keys to his car, he
continuously refused. Lt. Eco asked his men to usher the trio into the detention cell.24

After two hours, he was brought back to Lt. Eco's office. Lt. Eco pointed to a bag, a rifle, a pistol and
a package wrapped in masking tape or packing tape on his desk, and said these items constituted
evidence of illegal possession of firearms and transporting of drugs. He was surprised that they
found those items from his car because his key had been with him all the time. He was handcuffed,
brought to his car, and again was surprised to see its trunk open.25

On the other hand, Lopez had a different story. He claimed he was the mechanic of Usana and they
lived in the same subdivision.26 On 4 April 1995, he was working on Usana's pick-up truck at the
latter's house when Escaño dropped by at around 4:30 in the afternoon looking for Usana who was
then working in Forbes Park.27 At around 5:30 p.m., they left Usana's house in Escaño's metallic gray
Kia Pride. Inside the car, he saw a .45 caliber pistol and two spare magazines tucked in the right
side and left side of Escaño's waist. He also saw a carbine under the right passenger seat. When he
inquired about the guns, Escaño replied that such did not pose any problem since they were
licensed. Before going to Usana, they went to Pasay City to see a certain jerry.28 They met Usana at
the Sen. Gil Puyat Station of the LRT at around 9:00 p.m. He gave his seat to Usana but was
unaware if the latter noticed the rifle beneath the seat.29

They went home via Sen. Gil Puyat Avenue but were stopped at a checkpoint after crossing SLEX.
The policemen directed their flashlights at them and one opened the front passenger door.30 The
latter saw the rifle under Usana's seat. Usana and Escaño were ordered to get out of the car. PO3
Nonato immediately saw the gun tucked in Escaño's waist and asked if he was a policeman. Escaño
replied that everything would be explained at the police station. He was also asked to step out. No
firearm was, however, found in his possession.31

When confronted about the guns, Escaño tried to intercede for his two companions and said that ". .
. these two don't know anything about it, I just took them for a drive." They subsequently went to
police station Block 5. A certain Toto, a policeman, drove the Kia Pride to Block 5.32

Upon reaching the police station, Escaño was immediately brought to the office of Lt. Eco while he
and Usana were asked to sit on the bench. After a few minutes, PO3 de los Santos came out of the
office of Lt. Eco to talk to him. He told him that all he knew about Escaño is that he was a wealthy
flight attendant with military connections. After returning to Lt. Eco's office, PO3 de los Santos went
out of the police station with Lt. Eco and Escaño. The three came back with a blue bag which he had
never seen before. The bag was opened before the three suspects. Escaño reiterated that his two
companions had nothing to do with the bag.33

He and Usana stayed overnight in their cell and only saw Escaño in the morning of April 5. At around
4:00 p.m., they were transferred to the CID and stayed in the office of a certain Inspector Sipin.
Escaño admitted he owned the bag/case.34
For his part, Usana testified that he was a duly licensed architect who was gainfully employed by
Rolando de Asis and Taytay Management Corporation.35 He admitted owning a licensed .45 caliber
pistol.36 In March 1995, he hired as mechanic Lopez, who lives in Bernabe Subdivision Phase II
where he also lives. Escaño on the other hand, was introduced to him by a certain Roberto
Samparado, a neighbor of Lopez. Escaño, an international flight attendant of Philippine Airlines and
a businessman who owns Verge Enterprises, also supplied materials to the Philippine Army and
planned to engage in a construction business.37

On 4 April 1995, at around 7:30 p.m., he paged Escaño to talk about the materials for the five
prototype gunship helicopters they were supposed to supply. They talked on the phone, agreeing to
meet between 8:30 and 9:00 p.m. at the Sen. Gil Puyat Ave. Station of the Light Rail Transit,38 and
met at around a quarter past nine. Escaño was on board a metallic Kia Pride with Lopez on the
passenger seat. Lopez vacated the seat for him. They went to Magallanes Village to meet a certain
Norman Garcia and talk about the documents39 relating to the helicopter gunship of the Air Force.
They arrived there at 11:30 p.m. While they were talking with Garcia, he noticed a gun and
magazines tucked in Escaño's waist. Upon inquiry, Escaño said it was not a problem and only for his
protection.40 On their way to Roxas Boulevard, they were stopped at a checkpoint along Sen. Gil
Puyat Ave. Policemen knocked on the car windows so he and Escaño rolled down their windows. A
person in civilian clothes suddenly opened the right door, took something from the side of his seat
and shouted, "There's a gun." He was surprised because he did not carry anything when he bearded
the car; neither did he see anything inside the car because it was dark and he was not wearing his
eyeglasses.41 The person who took the gun asked if he was a policeman, and he said he was an
architect. He was then asked to alight from the car, then frisked. Escaño was also asked to alight
from a car. They saw a gun tucked in his waist, so they asked if he was a policeman, and Escaño
answered in the negative. Lopez was then ordered to get out of the car by the person in civilian
clothes and was also searched. They rode the Anfra service vehicle of the police. One of the
policemen asked Lopez to handcuff him and Escaño. The policeman who asked Escaño to get out of
the car drove the Anfra van to Block 5 where they arrived at 1:30 in the morning of 5 April.42

He and Lopez waited outside the office of Lt. Eco while Escaño was inside with the arresting officers.
Lt. Eco came out of his office and urged Lopez to tell the truth. He heard Lopez say that they were
both just with Escaño and that they knew nothing about the guns; neither do they own any. SPO4 de
los Santos entered the office of Lt. Eco and came out five minutes later with Escaño, Lt. Eco, and
the other arresting officers, Nonato, Suba and Erwin Eco, the person in civilian clothes. All six went
out to the parking area and returned after about five minutes. Lt. Eco was carrying a bag which he
placed on top his desk. Lopez and Escaño were asked about the contents of the bag. The two
replied it was the first time they saw that bag. Lt. Eco opened the bag before them. They all saw
something in brown paper. He and Lopez simultaneously exclaimed that they knew nothing about
the contents of the bag, and they implored Escaño to tell the police that they had nothing to do with
it.43

The trial court found the prosecution's version more credible than that of any one of the accused,
and ruled that the evidence presented by the prosecution was sufficient to convict the accused as
charged. It decreed:

WHEREFORE, in view of the foregoing judgment is hereby rendered as follows:

1. In Criminal Case No. 95-936, accused JULIAN ESCAÑO y DEEN, VIRGILIO

USANA y TOME and JERRY LOPEZ y CASABAAN are GUILTY as charged and are
sentenced to suffer imprisonment of RECLUSION PERPETUA, and to pay a fine of
P500,000.00.
 The Branch Clerk of Court is directed to turn over to the Dangerous Drugs Board the 3.314
kilograms of Hashish (marijuana) for its appropriate disposition in accordance with law; and

2. In criminal Cases Nos. 95-937 and 95-938, accused JULIAN ESCAÑO y DEEN
and VIRGILIO USANA y TOME are GUILTY as charged in the two separate
informations respectively filed against them and are sentenced to suffer the
indeterminate prison term from TEN (10) YEARS of PRISION MAYOR maximum, as
minimum to SEVENTEEN (17) YEARS, FOUR (4) MONTHS and ONE (1) DAY
of RECLUSION TEMPORAL maximum as maximum.44

The firearms and ammunitions subject matter of these cases which are still with the City
Prosecutor's Office are forfeited in favor of the Government are directed to be turned over to
the Firearms and Explosive Unit, PNP, Camp Crame, Quezon City for its appropriate
disposition.

SO ORDERED.45

Accused-appellants Usana and Lopez anchor their appeal on the following arguments:

1. The trial court erred in admitting in evidence the hashish seized without search warrant
when the police officers already had the opportunity to secure a search warrant before
searching the bag found at the baggage compartment at the back of the car;

2. Assuming that the hashish is admissible in evidence, the trial court erred in finding
appellants to have conspired with Escaño in transporting the hashish when the evidence
clearly shows that the hashish was owned and possessed solely by Escaño;

3. The trial court erred in convicting appellants of illegal possession of hashish despite the
fact that they were neither in actual nor constructive possession of the illegal drug; and

4. The trial court erred in not considering the exculpatory testimony of Julian Escaño in favor
of appellants.

Before going any further, some words are in order regarding the establishment of checkpoints.

Accused-appellants assail the manner by which the checkpoint in question was conducted. They
contend that the checkpoint manned by elements of the Makati Police should have been announced.
They also complain of its having been conducted in an arbitrary and discriminatory manner.

We take judicial notice of the existence of the COMELEC resolution46 imposing a gun ban during the
election period issued pursuant to Section 52(c) in relation to Section 26(q) of the Omnibus Election
Code (Batas Pambansa Blg. 881). The national and local elections in 1995 were held on 8 May, the
second Monday of the month. The incident, which happened on 5 April 1995, was well within the
election period.

This Court has ruled that not all checkpoints are illegal. Those which are warranted by the
exigencies of public order and are conducted in a way least intrusive to motorists are allowed.47 For,
admittedly, routine checkpoints do intrude, to a certain extent, on motorists' right to "free passage
without interruption," but it cannot be denied that, as a rule, it involves only a brief detention of
travelers during which the vehicle's occupants are required to answer a brief question or two. For as
long as the vehicle is neither searched nor its occupants subjected to a body search, and the
inspection of the vehicle is limited to a visual search, said routine checks cannot be regarded as
violative of an individual's right against unreasonable search. In fact, these routine checks, when
conducted in a fixed area, are even less intrusive.48

The checkpoint herein conducted was in pursuance of the gun ban enforced by the COMELEC. The
COMELEC would be hard put to implement the ban if its deputized agents were limited to a visual
search of pedestrians. It would also defeat the purpose for which such ban was instituted. Those
who intend to bring a gun during said period would know that they only need a car to be able to
easily perpetrate their malicious designs.

The facts adduced do not constitute a ground for a violation of the constitutional rights of the
accused against illegal search and seizure. PO3 Suba admitted that they were merely stopping cars
they deemed suspicious, such as those whose windows are heavily tinted just to see if the
passengers thereof were carrying guns. At best they would merely direct their flashlights inside the
cars they would stop, without opening the car's doors or subjecting its passengers to a body search.
There is nothing discriminatory in this as this is what the situation demands.

We see no need for checkpoints to be announced, as the accused have invoked. Not only would it
be impractical, it would also forewarn those who intend to violate the ban. Even so, badges of
legitimacy of checkpoints may still be inferred from their fixed location and the regularized manner in
which they are operated.49

Usana and Lopez also question the validity of the search. The trial court, in convicting the three
accused for violation of R.A. No. 6425, accepted as aboveboard the search done by the Makati
Police of the trunk of the car. Jurisprudence recognizes six generally accepted exceptions to the
warrant requirement: (1) search incidental to an arrest; (2) search of moving vehicles; (3) evidence in
plain view; (4) customs searches; (5) consented warrantless search;50 and (6) stop-and-frisk
situations.51

Even though there was ample opportunity to obtain a search warrant, we cannot invalidate the
search of the vehicle, for there are indications that the search done on the car of Escaño was
consented to by him. Both Lopez and Usana testified that Escaño was with the police officers when
they searched the car.52 There was no apparent objection made by Escaño as he seemed to have
freely accompanied the police officers to the car. PO3 Suba, on the other hand, testified that
"Escaño readily agreed to open the trunk," upon request of SPO4 de los Santos.53 But according to
Escaño, he refused the request of the police officers to search his car.54 We must give credence to
the testimony of PO3 Suba. Not only is it buttressed by the testimony of Usana and Lopez that
Escaño freely accompanied the police officers to the car, it is also deemed admitted by Escaño in
failing to appeal the decision. The findings of fact of the trial court are thus deemed final as against
him.

Despite the validity of the search, we cannot affirm the conviction of Usana and Lopez for violation of
R.A. No. 6425, as amended. The following facts militate against a finding of conviction: (1) the car
belonged to Escaño; (2) the trunk of the car was not opened soon after it was stopped and after the
accused were searched for firearms; (3) the car was driven by a policeman from the place where it
was stopped until the police station; (4) the car's trunk was opened, with the permission of Escaño,
without the presence of Usana and Lopez; and (5) after arrival at the police station and until the
opening of the car's trunk, the car was in the possession and control of the police authorities. No fact
was adduced to link Usana and Lopez to the hashish found in the trunk of the car. Their having been
with Escaño in the latter's car before the "finding" of the hashish sometime after the lapse of an
appreciable time and without their presence left much to be desired to implicate them to the offense
of selling, distributing, or transporting the prohibited drug. In fact, there was no showing that Usana
and Lopez knew of the presence of hashish in the trunk of the car or that they saw the same before
it was seized.1âwphi1.nêt

IN VIEW WHEREOF, that portion of the challenged decision of 30 May 1997 of the Regional Trial
Court, Makati, Branch 64, insofar as Criminal Case No. 95-936 is concerned with regard to accused-
appellants VIRGILIO T. USANA and JERRY C. LOPEZ, holding them guilty of violation of Section 4,
Article II of R.A. No. 6425, as amended, is hereby REVERSED and SET ASIDE and another is
hereby rendered ACQUITTING them therein on ground of reasonable doubt and ORDERING their
immediate release from confinement at the New Bilibid Prison, unless their further detention is
justified for any lawful ground. The Director of the Bureau of Corrections is hereby directed to report
to the Court the release of said accused-appellants within five (5) days from notice of this decision.

SO ORDERED.

G. R. Nos. 102009-10 July 6, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROLANDO DE GRACIA, CHITO HENSON and JOHN DOES, accused. ROLANDO DE
GRACIA, accused-appellant.

The Solicitor General for plaintiff-appellee.

Nicolas R. Ruiz, II for accused-appellant.

REGALADO, J.:

The incidents involved in this case took place at the height of the coup d' etat staged in December,
1989 by ultra-rightist elements headed by the Reform the Armed Forces Movement-Soldiers of the
Filipino People (RAM-SFP) against the Government. At that time, various government
establishments and military camps in Metro Manila were being bombarded by the rightist group with
their "tora-tora" planes. At around midnight of November 30, 1989, the 4th Marine Battalion of the
Philippine Marines occupied Villamor Air Base, while the Scout Rangers took over the Headquarters
of the Philippine Army, the Army Operations Center, and Channel 4, the government television
station. Also, some elements of the Philippine Army coming from Fort Magsaysay occupied the
Greenhills Shopping Center in San Juan, Metro Manila. 1

Accused-appellant Rolando de Gracia was charged in two separate informations for illegal
possession of ammunition and explosives in furtherance of rebellion, and for attempted homicide,
docketed as Criminal Cases Nos. Q-90-11755 and Q-90-11756, respectively, which were tried jointly
by the Regional Trial Court of Quezon City, Branch 103.
In Criminal Case No. Q-90-11755, Rolando de Gracia, Chito Henson and several John Does whose
true names and identities have not as yet been ascertained, were charged with the crime of illegal
possession of ammunition and explosives in furtherance of rebellion, penalized under Section 1,
paragraph 3, of Presidential Decree No. 1866, allegedly committed as follows:

That on or about the 5th day of DECEMBER, 1989, in QUEZON CITY, METRO
MANILA, PHILIPPINES, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring and confederating together and mutually helping
one another, and without authority of law, did then and there willfully, unlawfully,
feloniously and knowingly have in their possession, custody and control, the following
to wit:

Five (5) bundles of C-4 or dynamites

Six (6) cartoons of M-16 ammunition at 20 each
One hundred (100) bottles of MOLOTOV bombs

without first securing the necessary license and/or permit to possess the same from
the proper authorities, and armed with said dynamites, ammunition and explosives
and pursuant to their conspiracy heretofore agreed upon by them and prompted by
common designs, come to an agreement and decision to commit the crime of
rebellion, by then and there participating therein and publicly taking arms against the
duly constituted authorities, for the purpose of overthrowing the Government of the
Republic of the Philippines, disrupting and jeopardizing its activities and removing
from its allegiance the territory of the Philippines or parts thereof. 2

In Criminal Case No. Q-90-11756, Rolando de Gracia, Chito Henson, Lamberto Bicus, Rodolfo Tor
and several John Does were charged with attempted homicide allegedly committed on December 1,
1989 in Quezon City upon the person of Crispin Sagario who was shot and hit on the right thigh.

Appellant was convicted for illegal possession of firearms in furtherance of rebellion, but was
acquitted of attempted homicide.

During the arraignment, appellant pleaded not guilty to both charges. However, he admitted that he
is not authorized to possess any firearms, ammunition and/or explosive. 3 The parties likewise
stipulated that there was a rebellion during the period from November 30 up to December 9, 1989. 4

The records show that in the early morning of December 1, 1989, Maj. Efren Soria of the Intelligence
Division, National Capital Region Defense Command, was on board a brown Toyota car conducting
a surveillance of the Eurocar Sales Office located at Epifanio de los Santos Avenue in Quezon City,
together with his team composed of Sgt. Crispin Sagario, M/Sgt. Ramon Briones, S/Sgt. Henry
Aquino, one S/Sgt. Simon and a Sgt. Ramos. The surveillance, which actually started on the night of
November 30, 1989 at around 10:00 P.M., was conducted pursuant to an intelligence report received
by the division that said establishment was being occupied by elements of the RAM-SFP as a
communication command post.

Sgt. Crispin Sagario, the driver of the car, parked the vehicle around ten to fifteen meters away from
the Eurocar building near P. Tuazon Street, S/Sgt. Henry Aquino had earlier alighted from the car to
conduct his surveillance on foot. A crowd was then gathered near the Eurocar office watching the
on-going bombardment near Camp Aguinaldo. After a while, a group of five men disengaged
themselves from the crowd and walked towards the car of the surveillance team. At that moment,
Maj. Soria, who was then seated in front, saw the approaching group and immediately ordered Sgt.
Sagario to start the car and leave the area. As they passed by the group, then only six meters away,
the latter pointed to them, drew their guns and fired at the team, which attack resulted in the
wounding of Sgt. Sagario on the right thigh. Nobody in the surveillance team was able to retaliate
because they sought cover inside the car and they were afraid that civilians or bystanders might be
caught in the cross-fire.

As a consequence, at around 6:30 A.M. of December 5, 1989, a searching team composed of F/Lt.
Virgilio Babao as team leader, M/Sgt. Lacdao, Sgt. Magallion, Sgt. Patricio Pacatang, and elements
of the 16th Infantry Battalion under one Col. delos Santos raided the Eurocar Sales Office. They
were able to find and confiscate six cartons of M-16 ammunition, five bundles of C-4 dynamites, M-
shells of different calibers, and "molotov" bombs inside one of the rooms belonging to a certain Col.
Matillano which is located at the right portion of the building. Sgt. Oscar Obenia, the first one to enter
the Eurocar building, saw appellant De Gracia inside the office of Col. Matillano, holding a C-4 and
suspiciously peeping through a door. De Gracia was the only person then present inside the room. A
uniform with the nametag of Col. Matillano was also found. As a result of the raid, the team arrested
appellant, as well as Soprieso Verbo and Roberto Jimena who were janitors at the Eurocar building.
They were then made to sign an inventory, written in Tagalog, of the explosives and ammunition
confiscated by the raiding team. No search warrant was secured by the raiding team because,
according to them, at that time there was so much disorder considering that the nearby Camp
Aguinaldo was being mopped up by the rebel forces and there was simultaneous firing within the
vicinity of the Eurocar office, aside from the fact that the courts were consequently closed. The group
was able to confirm later that the owner of Eurocar office is a certain Mr. Gutierrez and that appellant
is supposedly a "boy" therein.

Appellant Rolando de Gracia gave another version of the incident. First, he claims that on November
30, 1989, he was in Antipolo to help in the birthday party of Col. Matillano. He denies that he was at
the Eurocar Sales Office on December 1, 1989. Second, he contends that when the raiding team
arrived at the Eurocar Sales Office on December 5, 1989, he was inside his house, a small nipa hut
which is adjacent to the building. According to him, he was tasked to guard the office of Col.
Matillano which is located at the right side of the building. He denies, however, that he was inside
the room of Col. Matillano when the raiding team barged in and that he had explosives in his
possession. He testified that when the military raided the office, he was ordered to get out of his
house and made to lie on the ground face down, together with "Obet" and "Dong" who were janitors
of the building. He avers that he does not know anything about the explosives and insists that when
they were asked to stand up, the explosives were already there.

Appellant stated that he visited Col. Matillano in 1987 at the stockade of the Philippine Constabulary-
Integrated National Police (PC-INP), and that he knew Matillano was detained because of the latter's
involvement in the 1987 coup d' etat. In July, 1989, appellant again went to see Matillano because
he had no job. Col. Matillano then told him that he could stay in the PC-INP stockade and do the
marketing for them. From that time until his arrest at the Eurocar office, appellant worked for
Matillano.

De Gracia believes that the prosecution witnesses were moved to testify against him because "bata
raw ako ni Col. Matillano eh may atraso daw sa kanila si Col. Matillano kaya sabi nila ito na lang
bata niya ang ipitin natin."

On February 22, 1991, the trial court rendered judgment 5 acquitting appellant Rolando de Gracia of
attempted homicide, but found him guilty beyond reasonable doubt of the offense of illegal
possession of firearms in furtherance of rebellion and sentenced him to serve the penalty
of reclusion perpetua. Moreover, it made a recommendation that "(i)nasmuch as Rolando de Gracia
appears to be merely executing or obeying orders and pursuant to the spirit contained in the 2nd
paragraph of Art. 135, R. P. C., the court recommends that Rolando de Gracia be extended
executive clemency after serving a jail term of five (5) years of good behavior.

That judgment of conviction is now challenged before us in this appeal.

Appellant principally contends that he cannot be held guilty of illegal possession of firearms for the
reason that he did not have either physical or constructive possession thereof considering that he
had no intent to possess the same; he is neither the owner nor a tenant of the building where the
ammunition and explosives were found; he was merely employed by Col. Matillano as an errand
boy; he was guarding the explosives for and in behalf of Col. Matillano; and he did not have actual
possession of the explosives. He claims that intent to possess, which is necessary before one can
be convicted under Presidential Decree No. 1866, was not present in the case at bar.

Presidential Decree No. 1866 provides as follows:

Sec. 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of

Firearms or Ammunition or Instruments Used or intended to be Used in the
Manufacture of Firearms or Ammunition. — The penalty of reclusion temporal in its
maximum period to reclusion perpetua shall be imposed upon any person who shall
unlawfully manufacture, deal in, acquire, dispose, or possess any firearms, part of
firearms, ammunition or machinery, tool or instrument used or intended to be used in
the manufacture of any firearm or ammunition.

If homicide or murder is committed with the use of an unlicensed firearm, the penalty
of death shall be imposed.

If the violation of this Section is in furtherance of, or incident to, or in connection with
the crimes of rebellion, insurrection or subversion, the penalty of death shall be
imposed.

Presidential Decree No. 1866 was passed because of an upsurge of crimes vitally affecting public
order and safety due to the proliferation of illegally possessed and manufactured firearms,
ammunition and explosives, and which criminal acts have resulted in loss of human lives, damage to
property and destruction of valuable resources of the country. The series of coup d' etats unleashed
in the country during the first few years of the transitional government under then President Corazon
P. Aquino attest to the ever-growing importance of laws such as Presidential Decree No. 1866 which
seek to nip in the bud and preempt the commission of any act or acts which tend to disturb public
peace and order.

I. The first issue to be resolved is whether or not intent to possess is an essential element of the
offense punishable under Presidential Decree No. 1866 and, if so, whether appellant De Gracia did
intend to illegally possess firearms and ammunition.

The rule is that ownership is not an essential element of illegal possession of firearms and
ammunition. What the law requires is merely possession which includes not only actual physical
possession but also constructive possession or the subjection of the thing to one's control and
management. 6 This has to be so if the manifest intent of the law is to be effective. The same evils,
the same perils to public security, which the law penalizes exist whether the unlicensed holder of a
prohibited weapon be its owner or a borrower. To accomplish the object of this law the proprietary
concept of the possession can have no bearing whatsoever. 7
But is the mere fact of physical or constructive possession sufficient to convict a person for unlawful
possession of firearms or must there be an intent to possess to constitute a violation of the law? This
query assumes significance since the offense of illegal possession of firearms is a malum
prohibitum punished by a special law, 8 in which case good faith and absence of criminal intent are
not valid defenses. 9

When the crime is punished by a special law, as a rule, intent to commit the crime is not necessary.
It is sufficient that the offender has the intent to perpetrate the act prohibited by the special law.
Intent to commit the crime and intent to perpetrate the act must be distinguished. A person may not
have consciously intended to commit a crime; but he did intend to commit an act, and that act is, by
the very nature of things, the crime itself. In the first (intent to commit the crime), there must be
criminal intent; in the second (intent to perpetrate the act) it is enough that the prohibited act is done
freely and consciously. 10

In the present case, a distinction should be made between criminal intent and intent to possess.
While mere possession, without criminal intent, is sufficient to convict a person for illegal possession
of a firearm, it must still be shown that there was animus possidendi or an intent to possess on the
part of the accused. 11 Such intent to possess is, however, without regard to any other criminal or
felonious intent which the accused may have harbored in possessing the firearm. Criminal intent
here refers to the intention of the accused to commit an offense with the use of an unlicensed
firearm. This is not important in convicting a person under Presidential Decree No. 1866. Hence, in
order that one may be found guilty of a violation of the decree, it is sufficient that the accused had no
authority or license to possess a firearm, and that he intended to possess the same, even if such
possession was made in good faith and without criminal intent.

Concomitantly, a temporary, incidental, casual, or harmless possession or control of a firearm

cannot be considered a violation of a statute prohibiting the possession of this kind of
weapon, 12 such as Presidential Decree No. 1866. Thus, although there is physical or constructive
possession, for as long as the animus possidendi is absent, there is no offense committed.

Coming now to the case before us, there is no doubt in our minds that appellant De Gracia is indeed
guilty of having intentionally possessed several firearms, explosives and ammunition without the
requisite license or authority therefor. Prosecution witness Sgt. Oscar Abenia categorically testified
that he was the first one to enter the Eurocar Sales Office when the military operatives raided the
same, and he saw De Gracia standing in the room and holding the several explosives marked in
evidence as Exhibits D to D-4. 13 At first, appellant denied any knowledge about the explosives.
Then, he alternatively contended that his act of guarding the explosives for and in behalf of Col.
Matillano does not constitute illegal possession thereof because there was no intent on his part to
possess the same, since he was merely employed as an errand boy of Col. Matillano. His pretension
of impersonal or indifferent material possession does not and cannot inspire credence.

Animus possidendi is a state of mind which may be determined on a case to case basis, taking into
consideration the prior and coetaneous acts of the accused and the surrounding circumstances.
What exists in the realm of thought is often disclosed in the range of action. It is not controverted that
appellant De Gracia is a former soldier, having served with the Philippine Constabulary prior to his
separation from the service for going on absence without leave
(AWOL). 14 We do not hesitate, therefore, to believe and conclude that he is familiar with and
knowledgeable about the dynamites, "molotov" bombs, and various kinds of ammunition which were
confiscated by the military from his possession. As a former soldier, it would be absurd for him not to
know anything about the dangerous uses and power of these weapons. A fortiori, he cannot feign
ignorance on the import of having in his possession such a large quantity of explosives and
ammunition. Furthermore, the place where the explosives were found is not a military camp or office,
nor one where such items can ordinarily but lawfully be stored, as in a gun store, an arsenal or
armory. Even an ordinarily prudent man would be put on guard and be suspicious if he finds articles
of this nature in a place intended to carry out the business of selling cars and which has nothing to
do at all, directly or indirectly, with the trade of firearms and ammunition.

On the basis of the foregoing disquisition, it is apparent, and we so hold, that appellant De Gracia
actually intended to possess the articles confiscated from his person.

II. The next question that may be asked is whether or not there was a valid search and seizure in
this case. While the matter has not been squarely put in issue, we deem it our bounden duty, in light
of advertence thereto by the parties, to delve into the legality of the warrantless search conducted by
the raiding team, considering the gravity of the offense for which herein appellant stands to be
convicted and the penalty sought to be imposed.

It is admitted that the military operatives who raided the Eurocar Sales Office were not armed with a
search warrant at that time. 15 The raid was actually precipitated by intelligence reports that said
office was being used as headquarters by the RAM. 16 Prior to the raid, there was a surveillance
conducted on the premises wherein the surveillance team was fired at by a group of men coming
from the Eurocar building. When the military operatives raided the place, the occupants thereof
refused to open the door despite requests for them to do so, thereby compelling the former to break
into the office. 17 The Eurocar Sales Office is obviously not a gun store and it is definitely not an
armory or arsenal which are the usual depositories for explosives and ammunition. It is primarily and
solely engaged in the sale of automobiles. The presence of an unusual quantity of high-powered
firearms and explosives could not be justifiably or even colorably explained. In addition, there was
general chaos and disorder at that time because of simultaneous and intense firing within the vicinity
of the office and in the nearby Camp Aguinaldo which was under attack by rebel forces. 18 The courts
in the surrounding areas were obviously closed and, for that matter, the building and houses therein
were deserted.

Under the foregoing circumstances, it is our considered opinion that the instant case falls under one
of the exceptions to the prohibition against a warrantless search. In the first place, the military
operatives, taking into account the facts obtaining in this case, had reasonable ground to believe that
a crime was being committed. There was consequently more than sufficient probable cause to
warrant their action. Furthermore, under the situation then prevailing, the raiding team had no
opportunity to apply for and secure a search warrant from the courts. The trial judge himself
manifested that on December 5, 1989 when the raid was conducted, his court was closed. 19 Under
such urgency and exigency of the moment, a search warrant could lawfully be dispensed with.

The view that we here take is in consonance with our doctrinal ruling which was amply explained in
People vs. Malmstedt 20 and bears reiteration:

While it is true that the NARCOM officers were not armed with a search warrant
when the search was made over the personal effects of accused, however, under the
circumstances of the case, there was sufficient probable cause for said officers to
believe that accused was then and there committing a crime.

Probable cause has been defined as such facts and circumstances which would lead
a reasonable, 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. The required probable cause that will justify a
warrantless search and seizure is not determined by any fixed formula but is
resolved according to the facts of each case.
 Warrantless search of the personal effects of an accused has been declared by this
Court as valid, because of existence of probable cause, where the smell of marijuana
emanated from a plastic bag owned by the accused, or where the accused was
acting suspiciously, and attempted to flee.

Aside from the persistent reports received by the NARCOM that vehicles coming
from Sagada were transporting marijuana and other prohibited drugs, their
Commanding Officer also received information that a Caucasian coming from
Sagada on that particular day had prohibited drugs in his possession. Said
information was received by the Commanding Officer of NARCOM the very same
morning that accused came down by bus from Sagada on his way to Baguio City.

When NARCOM received the information, a few hours before the apprehension of
herein accused, that a Caucasian travelling from Sagada to Baguio City was carrying
with him prohibited drugs, there was no time to obtain a search warrant. In
the Tangliben case, the police authorities conducted a surveillance at the Victory
Liner Terminal located at Bgy. San Nicolas, San Fernando, Pampanga, against
persons engaged in the traffic of dangerous drugs, based on information supplied by
some informers. Accused Tangliben who was acting suspiciously and pointed out by
an informer was apprehended and searched by the police authorities. It was held that
when faced with on-the-spot information, the police officers had to act quickly and
there was no time to secure a search warrant.

It must be observed that, at first, the NARCOM officers merely conducted a routine
check of the bus (where accused was riding) and the passengers therein, and no
extensive search was initially made. It was only when one of the officers noticed a
bulge on the waist of accused, during the course of the inspection, that accused was
required to present his passport. The failure of accused to present his identification
papers, when ordered to do so, only managed to arouse the suspicion of the officer
that accused was trying to hide his identity. For is it not a regular norm for an
innocent man, who has nothing to hide from the authorities, to readily present his
identification papers when required to do so?

The receipt of information by NARCOM that a Caucasian coming from Sagada had
prohibited drugs in his possession, plus the suspicious failure of the accused to
produce his passport, taken together as a whole, led the NARCOM officers to
reasonably believe that the accused was trying to hide something illegal from the
authorities. From these circumstances arose a probable cause which justified the
warrantless search that was made on the personal effects of the accused. In other
words, the acts of the NARCOM officers in requiring the accused to open his pouch
bag and in opening one of the wrapped objects found inside said bag (which was
discovered to contain hashish) as well as the two (2) teddy bears with hashish
stuffed inside them, were prompted by accused's own attempt to hide his identity by
refusing to present his passport, and by the information received by the NARCOM
that a Caucasian coming from Sagada had prohibited drugs in his possession. To
deprive the NARCOM agents of the ability and facility to act accordingly, including, to
search even without warrant, in the light of such circumstances, would be to sanction
impotence and ineffectiveness in law enforcement, to the detriment of society.

In addition, we find the principle enunciated in Umil, et al., vs. Ramos,

et al., 21 applicable, by analogy, to the present case:
 The arrest of persons involved in the rebellion whether as its fighting armed
elements, or for committing non-violent acts but in furtherance of the rebellion, is
more an act of capturing them in the course of an armed conflict, to quell the
rebellion, than for the purpose of immediately prosecuting them in court for a
statutory offense. The arrest, therefore, need not follow the usual procedure in the
prosecution of offenses which requires the determination by a judge of the existence
of probable cause before the issuance of a judicial warrant of arrest and the granting
of bail if the offense is bailable. Obviously the absence of a judicial warrant is no
legal impediment to arresting or capturing persons committing overt acts of violence
against government forces, or any other milder acts but really in pursuance of the
rebellious movement. The arrest or capture is thus impelled by the exigencies of the
situation that involves the very survival of society and its government and duly
constituted authorities. If killing and other acts of violence against the rebels find
justification in the exigencies of armed hostilities which (are) of the essence of
waging a rebellion or insurrection, most assuredly so in case of invasion, merely
seizing their persons and detaining them while any of these contingencies continues
cannot be less justified.

III. As earlier stated, it was stipulated and admitted by both parties that from November 30, 1989 up
to and until December 9, 1989, there was a rebellion. Ergo, our next inquiry is whether or not
appellant's possession of the firearms, explosives and ammunition seized and recovered from him
was for the purpose and in furtherance of rebellion.

The trial court found accused guilty of illegal possession of firearms in furtherance of rebellion
pursuant to paragraph 2 of Article 135 of the Revised Penal Code which states that "any person
merely participating or executing the command of others in a rebellion shall suffer the penalty
of prision mayor in its minimum period." The court below held that appellant De Gracia, who had
been servicing the personal needs of Col. Matillano (whose active armed opposition against the
Government, particularly at the Camelot Hotel, was well known), is guilty of the act of guarding the
explosives and "molotov" bombs for and in behalf of the latter. We accept this finding of the lower
court.

The above provision of the law was, however, erroneously and improperly used by the court below
as a basis in determining the degree of liability of appellant and the penalty to be imposed on him. It
must be made clear that appellant is charged with the qualified offense of illegal possession of
firearms in furtherance of rebellion under Presidential Decree No. 1866 which, in law, is distinct from
the crime of rebellion punished under Articles 134 and 135 of the Revised Penal Code. These are
two separate statutes penalizing different offenses with discrete penalties. The Revised Penal Code
treats rebellion as a crime apart from murder, homicide, arson, or other offenses, such as illegal
possession of firearms, that might conceivably be committed in the course of a rebellion. Presidential
Decree No. 1866 defines and punishes, as a specific offense, the crime of illegal possession of
firearms committed in the course or as part of a rebellion. 22

As a matter of fact, in one case involving the constitutionality of Section 1 of Presidential Decree No.
1866, the Court has explained that said provision of the law will not be invalidated by the mere fact
that the same act is penalized under two different statutes with different penalties, even if considered
highly advantageous to the prosecution and onerous to the accused. 23 It follows that, subject to the
presence of the requisite elements in each case, unlawful possession of an unlicensed firearm in
furtherance of rebellion may give rise to separate prosecutions for a violation of Section 1 of
Presidential Decree No. 1866, and also a violation of Articles 134 and 135 of the Revised Penal
Code on rebellion. Double jeopardy in this case cannot be invoked because the first is an offense
punished by a special law while the second is a felony punished by the Revised Penal Code, 24 with
variant elements.
It was a legal malapropism for the lower court to interject the aforestated provision of the Revised
Penal Code in this prosecution for a crime under a special law. Consequently, there is no basis for
its recommendation for executive clemency in favor of appellant De Gracia after he shall have
served a jail term of five years with good behavior. In any event, this is a matter within the exclusive
prerogative of the President whose decision thereon should be insulated against any tenuous
importunity.

Withal, we are duly convinced that the firearms, explosives and ammunition confiscated from
appellant De Gracia were illegally possessed by him in furtherance of the rebellion then admittedly
existing at that time. In the words of the court a quo:

2. the nature and quantity of the items — 5 bundles of C-4 dynamites, 6 cartons of
M-16 ammo and 100 bottles of molotov bombs indicate that the reports received by
the military that the Eurocar Sales Building was being used by the rebels was not
without basis. Those items are clearly not for one's personal defense. They are for
offensive operations. De Gracia admitted that per instruction of Col. Matillano he
went down to Eurocar Sales Building from Antipolo to stay guard there.

His manifestation of innocence of those items and what he has been guarding in that
office is not credible for: (a) he was a former military personnel; (b) at the birthday
party of Col. Matillano on November 30, 1989 many soldiers and ex-soldiers were
present which self-evidently discloses that De Gracia, in the company of his boss,
was still very much at home and constantly in touch with soldiers and the armed
rebellion of November 30, 1989 to December 8 or 9, 1989 was a military coup d' etat;
(c) it appears that he is the only person tasked with caretaking (sic) there in the
Matillano office, which shows that he is a highly trusted right-hand man of Col.
Matillano; and (d) as heretofore discussed, De Gracia was earlier seen with some
men who fired upon a car of the AFP intelligence agents. 25

Presidential Decree No. 1866 imposes the death penalty where the illegal possession of firearms
and ammunition is committed in furtherance of rebellion. At the time the offense charged in this case
was committed under the governance of that law, the imposition of the death penalty was proscribed
by the Constitution. Consequently, appellant De Gracia could only be sentenced to serve the penalty
of reclusion perpetua which was correctly meted out by the trial court, albeit with an erroneous
recommendation in connection therewith.

WHEREFORE, the impugned judgment of the trial court is hereby AFFIRMED, but its
recommendation therein for executive clemency and the supposed basis thereof are hereby
DELETED, with costs against accused-appellant.

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.:

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.

G.R. No. 133917 February 19, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
NASARIO MOLINA y MANAMA @ "BOBONG" and GREGORIO MULA y MALAGURA @
"BOBOY", accused-appellants.

YNARES-SANTIAGO, J.:

To sanction disrespect and disregard for the Constitution in the name of protecting the society from
lawbreakers is to make the government itself lawless and to subvert those values upon which our
ultimate freedom and liberty depend.1

For automatic review is the Decision2 of the Regional Trial Court of Davao City, Branch 17, in
Criminal Case No. 37,264-96, finding accused-appellants Nasario Molina y Manamat alias "Bobong"
and Gregorio Mula y Malagura alias "Boboy," guilty beyond reasonable doubt of violation of Section
8,3 of the Dangerous Drugs Act of 1972 (Republic Act No. 6425), as amended by Republic Act No.
7659,4 and sentencing them to suffer the supreme penalty of death.

The information against accused-appellants reads:

That on or about August 8, 1996, in the City of Davao, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, in conspiracy with each other, did then
and there willfully, unlawfully and feloniously was found in their possession 946.9 grants of
dried marijuana which are prohibited.

CONTRARY TO LAW.5

Upon arraignment on September 4, 1996, accused-appellants pleaded not guilty to the accusation
against them.6 Trial ensued, wherein the prosecution presented Police Superintendent Eriel
Mallorca, SPO1 Leonardo Y. Pamplona, Jr., and SPO1 Marino S. Paguidopon, Jr. as witnesses.

The antecedent facts are as follows:

Sometime in June 1996, SPO1 Marino Paguidopon, then a member of the Philippine National Police
detailed at Precinct No. 3, Matina, Davao City, received an information regarding the presence of an
alleged marijuana pusher in Davao City.7 The first time he came to see the said marijuana pusher in
person was during the first week of July 1996. SPO1 Paguidopon was then with his informer when a
motorcycle passed by. His informer pointed to the motorcycle driver, accused-appellant Mula, as the
pusher. As to accused-appellant Molina, SPO1 Paguidopon had no occasion to see him before the
arrest. Moreover, the names and addresses of the accused- appellants came to the knowledge of
SPO1 Paguidopon only after they were arrested.8

At about 7:30 in the morning of August 8, 1996, SPO1 Paguidopon received an information that the
alleged pusher will be passing at NHA, Ma- a, Davao City any time that morning.9 Consequently, at
around 8:00 A.M. of the same day, he called for assistance at the PNP, Precinct No. 3, Matina,
Davao City, which immediately dispatched the team of SPO4 Dionisio Cloribel (team leader), SPO2
Paguidopon (brother of SPO1 Marino Paguidopon), and SPO1 Pamplona, to proceed to the house
of SPO1 Marino Paguidopon where they would wait for the alleged pusher to pass by.10

At around 9:30 in the morning of August 8, 1996, while the team were positioned in the house of
SPO1 Paguidopon, a "trisikad" carrying the accused-appellants passed by. At that instance, SPO1
Paguidopon pointed to the accused-appellants as the pushers. Thereupon, the team boarded their,
vehicle and overtook the "trisikad."11 SPO1 Paguidopon was left in his house, thirty meters from
where the accused-appellants were accosted.12

The police officers then ordered the "trisikad" to stop. At that point, accused-appellant Mula who was
holding a black bag handed the same to accused-appellant Molina. Subsequently, SPO1 Pamplona
introduced himself as a police officer and asked accused-appellant Molina to open the bag.13 Molina
replied, "Boss, if possible we will settle this."14 SPO1 Pamplona insisted on opening the bag, which
revealed dried marijuana leaves inside. Thereafter; accused-appellants Mula and Molina were
handcuffed by the police officers.15

On December 6, 1996, accused-appellants, through counsel, jointly filed a Demurrer to Evidence,

contending that the marijuana allegedly seized from them is inadmissible as evidence for having
been obtained in violation of their constitutional right against unreasonable searches and
seizures.16 The demurrer was denied by the trial court.17 A motion for reconsideration was filed by
accused-appellants, but this was likewise denied. Accused-appellants waived presentation of
evidence and opted to file a joint memorandum.

On April 25, 1997, the trial court rendered the assailed decision,18 the decretal portion of which
reads:

WHEREFORE, finding the evidence of the prosecution alone without any evidence from both
accused who waived presentation of their own evidence through their counsels, more than
sufficient to prove the guilt of both accused of the offense charged beyond reasonable doubt,
pursuant to Sec. 20, sub. par. 5 of Republic Act 7659, accused NASARIO MOLINA and
GREGORIO MULA, are sentenced to suffer a SUPREME PENALTY OF DEATH through
lethal injection under Republic Act 8176, to be effected and implemented as therein provided
for by law, in relation to Sec. 24 of Rep. Act 7659.

The Branch Clerk of Court of this court, is ordered to immediately elevate the entire records
of this case with the Clerk of Court of the Supreme Court, Manila, for the automatic review of
their case by the Supreme Court and its appropriate action as the case may be.

SO ORDERED.19
Pursuant to Article 47 of the Revised penal Code and Rule 122, Section 10 of the Rules of Court, the
case was elevated to this Court on automatic review. Accused-appellants contend:

I.

THAT THE MARIJUANA IS IN ADMISSIBLE IN EVIDENCE FOR HAVING BEEN SEIZED IN

VIOLATION OF APPELLANTS' CONSTITUTIONAL RIGHTS AGAINST UNREASONABLE,
SEARCHES AND SEIZURES;

II.

THAT ASSUMING IT IS ADMISSIBLE IN EVIDENCE, THE GOVERNMENT HAS NOT

OTHERWISE PROVED THEIR GUILT BEYOND REASONABLE DOUBT; AND

III.

THAT, FINALLY, ASSUMING THEIR GUILT HAS BEEN PROVED BEYOND REASONABLE
DOUBT, THE IMPOSABLE PENALTY FOR VIOLATION OF SEC. 8 OF RA No.
7659 (sic), IN THE ABSENCE OF ANY AGGRAVATING CIRCUMSTANCE, IS LIFE
IMPRISONMENT, NOT DEATH.20

The Solicitor General filed a Manifestation and MO1ion (In Lieu of Brief), wherein he prayed for the
acquittal of both accused-appellants.

The fundamental law of the land mandates that searches and seizures be carried out in a
reasonable fashion, that is, by virtue or on the strength of a search warrant predicated upon the
existence of a probable cause. The pertinent provision of the Constitution provides:

SEC. 2. The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose shall
be inviolable, and no search warrant or warrant of arrest shall issue except upon probable
cause to be determined personally by the judge after examination under oath or affirmation
of the complainant and the witnesses he may produce, and particularly describing the place
to be searched and the persons or things to be seized.21

Complementary to the foregoing provision is the exclusionary rule enshrined under Article III,
Section 3, paragraph 2, which bolsters and solidifies the protection against unreasonable searches
and seizures.22 Thus:

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

Without this rule, the right to privacy would be a form of words, valueless and undeserving of
mention in a perpetual charter of inestimable human liberties; so too, without this rule, the freedom
from state invasions of privacy would be so ephemeral and so neatly severed from its conceptual
nexus with the freedom from all brutish means of coercing evidence as not to merit this Court's high
regard as a freedom implicit in the concept of ordered liberty.23

The foregoing constitutional proscription, however, is not without exceptions. Search and seizure
may be made without a warrant and the evidence obtained therefrom may be admissible in the
following instances: (1) search incident to a lawful arrest; (2) search of a moving motor vehicle; (3)
search in violation of customs laws; (4) seizure of evidence in plain view; (5) when the accused
himself waives his right against unreasonable searches and seizures;24 and (6) stop and frisk
situations (Terry search).25

The first exception (search incidental to a lawful arrest) includes a valid warrantless search and
seizure pursuant to an equally valid warrantless arrest which must precede the search. In this
instance, the law requires that there be first a lawful arrest before a search can be made --- the
process cannot be reversed.26 As a rule, an arrest is considered legitimate if effected with .a valid
warrant of arrest. The Rules of Court, however, recognizes permissible warrantless arrests. Thus, a
peace officer or a private person may, without 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 (arrest in flagrante delicto); (b) when an offense has just been committed and he has
probable cause to believe based on personal knowledge of facts or circumstances that the person to
be arrested has committed it (arrest effected in hot pursuit); and (c) when the person to be arrested
is a prisoner who has escaped from a penal establishment or a place where he is serving final
judgment or is temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another ( arrest of escaped prisoners ).27

In the case at bar, the court a quo anchored its judgment of conviction on a finding that the
warrantless arrest of accused-appellants, and the subsequent search conducted by the peace
officers, are valid because accused-appellants were caught in flagrante delicto in possession of
prohibited drugs.28 This brings us to the issue of whether or not the warrantless arrest, search and
seizure in the present case fall within the recognized exceptions to the warrant requirement.

In People v. Chua Ho San,29 the Court held that in cases of in flagrante delicto arrests, a peace
officer or a private person may, without a warrant, arrest a person when, in his presence, the person
to be arrested has committed, is actually committing, or is attempting to commit an offense. The
arresting officer, therefore, must have personal knowledge of such fact or, as recent case law
adverts to, personal knowledge of facts or circumstances convincingly indicative or constitutive of
probable cause. As discussed in People v. Doria,30 probable cause means an actual belief or
reasonable grounds of suspicion. The grounds of suspicion are reasonable when, in the absence of
actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of
committing the offense, is based on actual facts, i.e., supported by circumstances sufficiently strong
in themselves to create the probable cause of guilt of the person to be arrested. A reasonable
suspicion therefore must be founded on probable cause, coupled with good faith on the part of the
peace officers making the arrest.

As applied to in flagrante delicto arrests, it is settled that "reliable information" alone, absent any
overt act indicative of a felonious enterprise in the presence and within the view of the arresting
officers, are not sufficient to constitute probable cause that would justify an in flagrante delicto arrest.
Thus, in People v. Aminnudin,31 it was held that "the 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 MN 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."

Likewise, in People v. Mengote,32 the Court did not consider "eyes... darting from side to side :..
[while] holding ... [one's] abdomen", in a crowded street at 11:30 in the morning, as overt acts and
circumstances sufficient to arouse suspicion and indicative of probable cause. According to the
Court, "[b]y no stretch of the imagination could it have been inferred from these acts that an offense
had just been committed, or was actually being committed or was at least being attempted in [the
arresting officers'] presence." So also, in People v. Encinada,33 the Court ruled that no probable
cause is gleanable from the act of riding a motorela while holding two plastic baby chairs. 1âwphi1.nêt

Then, too, in Malacat v. Court of Appeals,34 the trial court concluded that petitioner was attempting to
commit a crime as he was "`standing at the comer of Plaza Miranda and Quezon Boulevard' with his
eyes 'moving very fast' and 'looking at every person that come (sic) nearer (sic) to them.'"35 In
declaring the warrantless arrest therein illegal, the Court said:

Here, there could have been no valid in flagrante delicto ... arrest preceding the search in
light of the lack of personal knowledge on the part of V u, the arresting officer, or an overt
physical act, on the part of petitioner, indicating that a crime had just been committed, was
being committed or was going to be committed.36

It went on to state that –

Second, there was nothing in petitioner's behavior or conduct which could have reasonably
elicited even mere suspicion other than that his eyes were "moving very fast" - an
observation which leaves us incredulous since Yu and his teammates were nowhere near
petitioner and it was already 6:30 p.m., thus presumably dusk. Petitioner and his companions
were merely standing at the comer and were not creating any commotion or trouble...

Third, there was at all no ground, probable or otherwise, to believe that petitioner was armed
with a deadly weapon. None was visible to Yu, for as he admitted, the alleged grenade was
"discovered" "inside the front waistline" of petitioner, and from all indications as to the
distance between Yu and petitioner, any telltale bulge, assuming that petitioner was indeed
hiding a grenade, could not have been visible to Yu.37

Clearly, to constitute a valid in flagrante delicto arrest, two requisites must concur: (1) the person to
be arrested must execute an overt act indicating that he has just committed, is actually committing,
or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view
of the arresting officer.38

In the case at bar, accused-appellants manifested no outward indication that would justify their
arrest. In holding a bag on board a trisikad, accused-appellants could not be said to be committing,
attempting to commit or have committed a crime. It matters not that accused-appellant Molina
responded "Boss, if possible we will settle this" to the request of SPO1 Pamplona to open the bag.
Such response which allegedly reinforced the "suspicion" of the arresting officers that accused-
appellants were committing a crime, is an equivocal statement which standing alone will not
constitute probable cause to effect an inflagrante delicto arrest. Note that were it not for SPO1
Marino Paguidopon (who did not participate in the arrest but merely pointed accused-appellants to
the arresting officers), accused-appellants could not be the subject of any suspicion, reasonable or
otherwise.

While SPO1 Paguidopon claimed that he and his informer conducted a surveillance of accused-
appellant Mula, SPO1 Paguidopon, however, admitted that he only learned Mula's name and
address after the arrest. What is more, it is doubtful if SPO1 Paguidopon indeed recognized
accused-appellant Mula. It is worthy to note that, before the arrest, he was able to see Mula in
person only once, pinpointed to him by his informer while they were on the side of the road. These
circumstances could not have afforded SPO1 Paguidopon a closer look at accused-appellant Mula,
considering that the latter was then driving a motorcycle when, SPO1 Paguidopon caught a glimpse
of him. With respect to accused-appellant Molina, SPO1 Paguidopon admitted that he had never
seen him before the arrest.
This belies the claim of SPO1 Pamplona that he knew the name of accused-appellants even before
the arrest, to wit –

"Q- When you said that certain Mula handed a black bag to another person and how did
you know that it was Mula who handed the black bag to another person?

A- Because I have already information from Paguidopon, regarding Mula and Molina,
when they pass by through the street near the residence of Paguidopon. He told that the one
who is big one that is Gregorio Mula and the thin one is Nazario Molina"39

The aforecited testimony of SPO1 Pamplona, therefore, is entirely baseless SPO1 Pamplona could
not have learned the name of accused-appellants from SPO1 Paguipodon because Paguipodon
himself, who allegedly conducted the surveillance, was not even aware of accused-appellants' name
and address prior to the arrest.

Evidently, SPO1 Paguidopon, who acted as informer of the arresting officers, more so the arresting
officers themselves, could not have been certain of accused-appellants' identity, and were, from all
indications, merely fishing for evidence at the time of the arrest.

Compared to People v. Encinada, the arresting officer in the said case knew appellant Encinada
even before the arrest because of the latter's illegal gambling activities, thus, lending at least a
semblance of validity on the arrest effected by the peace officers. Nevertheless, the Court declared
in said case that the warrantless arrest and the consequent search were illegal, holding that "[t]he
prosecution's evidence did not show any suspicious behavior when the appellant disembarked from
the ship or while he rode the motorela. No act or fact demonstrating a felonious enterprise could be
ascribed to appellant under such bare circumstances."40

Moreover, it could not be said that accused-appellants waived their right against unreasonable
searches and seizure. 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.41

Withal, the Court holds that the arrest of accused-appellants does not fall under the exceptions
allowed by the rules. Hence, the search conducted on their person was likewise illegal.
Consequently, the marijuana seized by the peace officers could not be admitted as evidence against
accused-appellants, and the Court is thus, left with no choice but to find in favor of accused-
appellants.

While the Court strongly supports the campaign of the government against drug addiction and
commends the efforts of our law-enforcement officers towards this drive, all efforts for the
achievement of a drug-free society must not encroach on the fundamental rights and liberties of
individuals as guaranteed in the Bill of Rights, which protection extends even to the basest of
criminals.

WHEREFORE, the Decision of the Regional Trial Court of Davao City, Branch 17, in Criminal Case
No. 37, 264-96, is REVERSED and SET ASIDE. For lack of evidence to establish their guilt beyond
reasonable doubt, accused-appellants Nasario Molina y Manamat alias "Bobong" and Gregorio Mula
y Malagura alias "Boboy", are ACQUITTED and ordered RELEASED from confinement unless they
are validly detained for other offenses. No costs.

SO ORDERED.
G.R. No. 79731 July 9, 1990

REYNALDO LAUSA, petitioner,

vs.
NATIONAL LABOR RELATIONS COMMISSION, LABOR ARBITER, and NEGROS NAVIGATION
COMPANY, INC., respondents.

G.R. No. 80407 July 9, 1990

VOD PERSONNEL OFFICER and NEGROS NAVIGATION COMPANY, INC., petitioners,

vs.
NATIONAL LABOR RELATIONS COMMISSION and REYNALDO LAUSA, respondents.

Divinagracia, Billena, Soliva & Saplada Law Offices for petitioner Lausa.

Doroteo V. Valencia for Negros Navigation Company, Inc.

FELICIANO, J.:

Negros Navigation Company, Inc. and its Personnel Officer (petitioners in G.R. No. 80407) and Reynaldo Lausa (petitioner in G.R. No.
79731) both ask us to set aside and nullify the Resolution of the National Labor Relations Commission ("NLRC") in RAB Case No. VI-0030-
85 which had affirmed a Decision of the Executive Labor Arbiter requiring Negros Navigation and its Personnel Officer to pay Reynaldo
Lausa separation pay amounting to his one-month salary for every year of service, plus ten percent (10%) thereof as attorney's fees.

Reynaldo Lausa had been employed as a messman by Negros Navigation since January 1979. On
Christmas day of 1984, Lausa was assigned as messman in Negros Navigation's vessel, M/S "Sta.
Maria". The "Sta. Maria" was then berthed at the Muelle Loney wharf in Iloilo City, the vessel's home
port, receiving passengers and cargo bound for Manila, the vessel's departure being then scheduled
for 7:00 o'clock in the evening. At about 5:30 in the afternoon, messman Lausa arrived at the
vessel's lobby, with his authorized uniform tucked out (rather than tucked in) with front unbuttoned
thus baring his chest and stomach. He was obviously drunk. Without provocation, and in the
presence of some of the vessel's officers including the Chief Mate, Antonio Tendencia, Jr., crew
members and passengers, he became very belligerent and in a loud and angry voice challenged
everyone present to fight with him. Chief Mate Tendencia sought to pacify him, but he refused to be
pacified and instead insulted and challenged the Chief Mate in front of everyone. After sometime,
Lausa disembarked from the vessel and while descending the gangplank, continued to shout at and
challenge all and sundry on shipboard to come down and fight with him.

The "Sta. Maria" left the port of Iloilo at the scheduled hour. While the vessel was on its way to
Manila, the Chief Mate was informed that Lausa was on board the vessel, sleeping off his liquor
inside his quarters. Apparently apprehensive that Lausa might cause further trouble, the Chief Mate
instructed the Chief Steward, who was Lausa's immediate supervisor, as well as the Boatswain, to
see to it that Lausa did not leave his quarters and immediately to report any sign of further trouble.
The Chief Mate then prepared a brief report on the behavior of Lausa, with a view to submitting the
same to his superiors in Iloilo City.1
After receipt and study of the report submitted by Chief Mate Tendencia, Negros Navigation required
messman Lausa to submit a written explanation why his services should not be terminated for
cause. Lausa denied the material allegations of the report. The following is his version of the
Christmas Day incident set out in his letter dated 16 January 1985:

xxx xxx xxx

On December 25, 1984, my wife and I had a slight marital argument at the back part
of the ship M/S "Sta. Maria." While we were arguing, all of a sudden, I heard
someone shouted on my back "hijo de puta." Instinctively, I turned around, and told
that someone in a moderately mild voice, "wala ako mahadlok sa imo", not knowing
at the time that, that someone was Chief Mate Antonio Tendencia, Jr. who had been
listening and prying into our marital argument for a considerable length of time. After
that incident, nothing more happened, and we parted ways, probably he realized that
it was his fault in interfering with our marital argument and he was the one who
provoked me to say those kind of words to him.

The next morning, I met Chief Mate Tendencia, Jr. and we talked to each other. He
told me to forget everything that had happened, because it was nobody's fault
anyway. Presuming that everything was all right, I continued doing my duties on
board M/S "Sta. Maria" where I am a messman.

xxx xxx xxx

I therefore vehemently deny that on December 25, 1984 I insulted and hurled
invectives and threats to Chief Mate Tendencia, Jr. and Third Mate Seruelo. In fact
Chief Mate Tendencia defamed, slandered, attacked and questioned my reputation
in telling me on my back that I am "Hijo De Puta", and much worse in the presence of
my wife. I also deny having reported to work under the heavy influence of liquor,
otherwise I could not have performed my duty for that day.

xxx xxx xxx 2

(Emphasis supplied)

A formal investigation and hearing was conducted by Negros Navigation. Thereafter, convinced that
the report of Chief Mate Tendencia was substantially correct, Negros Navigation terminated the
services of Reynaldo Lausa effective 18 January 1985 for serious misconduct. 3

Lausa filed on 1 March 1985 a complaint against Negros Navigation and its Personnel Officer for,
among other things, illegal dismissal. Conciliation proceedings were had, but without success. After
submission of the parties' respective position papers and supporting documents, the Executive
Labor Arbiter issued on 13 June 1986 a decision holding that messman Lausa had been illegally
dismissed and required the employer and its Personnel Officer to pay him separation pay. The
dispositive portion of this decision read as follows:

In view of the foregoing, we find that respondents' act in dismissing the complainant
is arbitrary and does not constitute a just cause for respondent to separate him from
work. We believe that the alleged serious misconduct is not attendant in the instant
case. If ever complainant committed a misconduct it was not serious as to warrant
his dismissal. Though we find the termination to be illegal, the remedy of
reinstatement in the instant case is not in the best interest of the parties. In lieu
 thereof, separation pay will be provided as there is a clear rupture or severe
breakdown of employer-employee relationship (Mario Libunao vs. Olympia
International Inc., NLRC Case No. RB VI-2420, TALA, April 1978, p. 290)

This Executive Labor Arbiter finds the foregoing report and recommendation to be
fully substantiated by evidence and hereby adopts the same as his own.

WHEREFORE, premises considered, respondents are hereby ordered to pay

complainant separation pay in an amount equivalent to complainant's one month
salary for every year of service and 10% attorney's fees of the amount awarded.

Complainant's other causes of actions are hereby dismissed for lack of merit.

SO ORDERED. 4

Negros Navigation, et al. and messman Lausa appealed separately to the NLRC. Negros
Navigation, et al. contended that the Executive Labor Arbiter had seriously erred in giving credence
to the uncorroborated version of Lausa of the relevant events. Reynaldo Lausa, upon the other
hand, appealed from the Executive Labor Arbiter's Decision to the extent that it had awarded him
separation pay instead of reinstatement with backwages, arguing that his non-
reinstatement cum separation pay was inconsistent with the finding that he was not guilty of serious
misconduct. In a Resolution dated 16 June 1987, 5 the NLRC dismissed both appeals for lack of
merit, and accordingly sustaining, in all its parts, the Decision of the Executive Labor Arbiter.

Both Negros Navigation, et al. and Reynaldo Lausa are now before us on certiorari, ascribing grave
abuse of discretion to the NLRC in rendering its aforementioned Resolution. Negros Navigation, et
al.'s principal contentions are two-fold: that the NLRC acted with grave abuse of discretion in, firstly,
disregarding the evidence submitted by them while accepting the allegations of Lausa; and
secondly, in holding that Lausa had not committed serious misconduct and had not given just cause
for termination of his services. Reynaldo Lausa, on the other hand, contends that the NLRC acted
with grave abuse of discretion in, firstly, terminating his services and giving him separation pay
instead of ordering his reinstatement with backwages after having found that he was not guilty of
serious misconduct; and secondly, in not awarding him moral and exemplary damages when there
was legal basis therefor.

An examination of the records shows that both the Executive Labor Arbiter and public respondent
NLRC had indeed rejected the evidence presented by Negros Navigation, et al. in arriving at their
respective assailed decisions. In particular, the NLRC, following the conclusions of the Executive
Labor Arbiter, disregarded the report dated 26 December 1984 6 and the affidavits dated 21 January
1985 and 30 April 1985, 7 all executed by Chief Mate Tendencia upon the ground that the report and
affidavits were inconsistent with each other in their material averments.

We have, however, examined these report and affidavits for ourselves and find no material
inconsistencies between them. Unlike the Executive Labor Arbiter, we find no necessary
contradiction between the statement in the report of Chief Mate Tendencia of 26 December 1984
that he "immediately apprehended" the complainant upon the latter's drunken and belligerent
behavior and the statement in the Chief Mate's affidavit that he "tried to pacify" respondent Lausa
since the "apprehension" or restraint of Lausa was precisely intended to "pacify" him. The Executive
Labor Arbiter also pointed to the fact that the report dated 26 December 1984 and the affidavit of 21
January 1985 did not set out the "exact utterance of the complainant", while the affidavit dated 30
April 1985, did set out such utterance. The Executive Labor Arbiter apparently concluded that the
subsequent affidavit was false or unreliable. We do not believe so. We note that the subsequent
affidavit of 30 April 1985 is cast in question-and-answer form and that the affiant, Chief Mate
Tendencia, was asked by the administering officer what messman Lausa had stated and that,
accordingly, the Chief Mate in response repeated as far as he remembered the language employed
by Lausa:

8-Q. Do you know one Reynaldo Lausa?

A: Yes, sir, he was one of our vessel messmen.

9-Q: Do you recall having seen Mr. Reynaldo Lausa at between 5:00
and 6:00 in the afternoon of December 25, 1984?

A: Yes, sir, I did.

10-Q: On what occasion?

A: I was standing at the vessel lobby together with Third Mate Milo
Seruelo and some of our passengers when Mr. Reynaldo Lausa
showed up under the influence of liquor.

11-Q. How was he attired then?

A: He was wearing his messman uniform, which was tucked out, with
its front being unbottoned with his chest and stomach bared open.

12-Q. While there, what did Mr. Lausa do if he did something?

A: Without provocation, he suddenly shouted and challenging those

present, including myself and Third Mate Milo Seruelo, to a fight.

13-Q: What, in substance, did he utter?

A: At the top of his voice he shouted: "Sin-o ang nagapangita diri sa

akon? Bisan sin-o sa inyo wala ako mahadlok. Sin-o ang maaway sa
inyo? Ikaw? Ikaw? Ikaw?' (meaning "Who of you are looking for me? I
am not afraid of anyone of you. Who wants to fight? You? You?
You?")

14-Q: What were his actions as he uttered those?

A: He was pointing to us belligerently.

15-Q: Was there anything you did?

A: Yes, sir, more than anything else my concern was for the
passengers who looked apprehensive and afraid, and so I avoided
doing any violent act or making provoking statement except to pacify
him by saying: "Daw wala man diri sing may nagapangita sa imo."
(meaning, "Nobody here seems to be looking for you.")
 xxx xxx xxx 8

The NLRC had also stated that there was some delay in the transmittal of the report of Chief Mate
Tendencia to his superiors in the vessel's home port, Iloilo City. We have examined the record in this
respect and do not believe that the delay, if delay it was, was material, nor that it affected the
credibility of such report concerning the misconduct of respondent Lausa. The sailing schedule of
the M/S "Sta. Maria" provides adequate explanation for such delay. The vessel left the port of Iloilo
City at 7:00 o'clock p.m. on 25 December 1984 shortly after the incident occurred. The vessel
reached Manila on 26 December 1984 and left on 27 December 1984 for Bacolod City, arriving in
said City on 28 December 1984. On the same day, 28 December 1984, the vessel departed once
again for Manila, arriving there on 29 December 1984. On the following day, 30 December 1984, the
M/S "Sta. Maria" left Manila and arrived in Iloilo City on 31 December 1984 at 12:30 p.m. 9 On the
same day that the "Sta. Maria" arrived in Iloilo City, Chief Mate Tendencia hand-carried his report to
his superiors in the office of petitioner company. Assuming, as the Labor Arbiter stated, that Chief
Mate Tendencia might have forwarded his report to the home office earlier than 31 December 1984,
we do not understand how the failure to do so could have diminished the intrinsic credibility of the
report which was rendered in the ordinary course of business and in the performance of duty on the
part of Chief Mate Tendencia.

Finally, the Executive Labor Arbiter sought to justify rejection of the affidavits executed by several
crew members of the "Sta. Maria" corroborating and reinforcing the report and affidavits of Chief
Mate Tendencia, upon the ground that those affidavits had been executed "by practically [sic] all
men under the direct supervision and control of Mr. Tendencia, Jr., except Mr. Codilla who did
nothing while the alleged incident was taking place. In fact, if witnesses should undertake to tell all
that occurred in precisely the same order, each giving the same incident as the order in precisely the
same words, that fact would be itself a suspicious circumstances [sic] (People v. Lopez, L-12704,
September 30, 1961)." 10 There is no evidence whatsoever to suggest that Chief Mate Tendencia
coerced the affiants — Messrs. Seruelo, Momboy, Mondadero and Palma — to perjure themselves.
The fact that these crew members may have narrated the Lausa incident giving substantially the
same sequence of events and using substantially similar words, is certainly not sufficient basis to
exclude such evidence. Firstly, these affidavits were subscribed to on the same date before the
same notary public, who very probably drafted them using substantially similar words in English,
after the affiants had described what they had seen of the incident. Secondly, the affiants and
Reynaldo Lausa belonged to the same labor union, the Iloilo-Negros Employees and Laborers Union
(INELU). There is nothing in the record to explain why affiants would have fabricated out of thin air
the whole incident which clearly would lead to imposition of sanctions against a fellow union
member.

We are thus compelled to conclude that clearly relevant evidence for Negros Navigation, et al. was,
without rational basis, excluded and disregarded by both the Executive Labor Arbiter and the NLRC
and that such failure to consider material evidence of record constitutes a grave abuse of
discretion. 11

We turn to the question of whether or not the drunken behavior of respondent Lausa constituted
misconduct so serious as reasonably to warrant his dismissal from the service of petitioner
corporation. The Executive Labor Arbiter undertook to substitute his own judgment for that of
petitioner company in this respect, holding that: "if ever complainant committed a misconduct, it was
not [so] serious as to warrant his dismissal." 12 Respondent NLRC simply accepted this substituted
judgment on the part of the Executive Labor Arbiter.

Article 283 of the Labor Code recognizes the right of an employer to terminate the services of an
employee where, among other things, such an employee is guilty of "serious misconduct":
 Art. 283. Termination by Employer. — An employer may terminate an employment
for any of the following just causes:

(a) serious misconduct or lawful disobedience by the employee of the

lawful orders of his employer or representative in connection

with his work;

xxx xxx xxx

(Emphasis supplied)

Clearly, the drunken and bellicose behavior of Reynaldo Lausa constituted misconduct on
his part. The critical question relates to appreciation of the gravity of such misconduct. In
appraising the character of the misconduct committed by messman Lausa, it is important to
stress that petitioner corporation is a public carrier, engaged in transporting passengers and
cargo across our waters and seas. As a public carrier, petitioner corporation is, "from the
nature of [its] business and for reasons of public policy", bound to observe "extraordinary
diligence" in the vigilance over the goods and for the safety of passengers transported by
it. 13 The standard of care established by the Civil Code — extraordinary diligence — is
defined rigorously as a duty "to carry passengers safely as far as human care and foresight
can provide, using the utmost diligence of very cautious persons, with a due regard for all the
circumstances." 14 In the context of this duty of extraordinary diligence imposed by law upon
petitioner corporation, the drunken and disorderly and pugnacious behavior of respondent
Lausa on board the vessel was clearly a serious matter. Such kind of behavior could easily
have provoked or triggered off a brawl and mindless panic on board the vessel, and
endangered the safety of passengers and crew members and, under certain conditions, the
safety of the vessel itself The fact that, in the case at bar, no violence and terror and panic
actually broke out on board the M/S "Sta. Maria", was certainly not due to Reynaldo Lausa.
Under these circumstances, we consider that the behavior of respondent Lausa is properly
characterized as serious misconduct warranting his dismissal from the service. 15 The
statutory duty of Negros Navigation of extraordinary diligence would have justified, indeed
required, the Chief Mate and other crew members of the "Sta. Maria" to take reasonable
measures to apprehend and restrain Lausa to ensure that no such panic and stampede
resulted.

Negros Navigation was moreover justified in taking into account, in dismissing respondent Lausa,
the fact that the 25 December 1984 drunken incident was not the first such serious misconduct on
the part of respondent Lausa. The evidence submitted by Negros Navigation, et al. showed that on
27 September 1980, on board the M/S "Doña Florentina" where he was previously assigned,
Reynaldo Lausa and other crew members were caught playing cards (Lucky 9) and that under the
influence of liquor, and having lost money in the game, he provoked a fight in the course of which he
inflicted physical injuries upon one of the card players whom he chased and slashed with a broken
bottle. 16 Negros Navigation would have dismissed Lausa back in 1980 had the union not intervened
on his behalf and promised that next time, it would not so intervene.

We hold that, in the specific circumstances of this case, respondent NLRC and the Executive Labor
Arbiter committed a grave abuse of discretion in substituting their own judgment for that of Negros
Navigation who could have been held liable for damages if any of the passengers had been hurt as
a result of the drunken misbehavior of Reynaldo Lausa.
Since the dismissal of Reynaldo Lausa was for a just cause, he was not entitled to separation
pay, 17 much less to reinstatement and backwages. His claim for moral and exemplary damages is
hence devoid of merit.

WHEREFORE, the Petition for Certiorari in G.R. No. 80407 is hereby GRANTED, while the Petition
in G.R. No. 79731 is hereby DISMISSED for lack of merit. The Resolution dated 16 June 1987 of
public respondent NLRC as well as the Decision dated 13 June 1986 of the Executive Labor Arbiter
Celerino Greica II are both hereby NULLIFIED and SET ASIDE. No pronouncement as to costs.

SO ORDERED.

G.R. No. 81567 July 9, 1990

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ROBERTO UMIL, ROLANDO
DURAL and RENATO VILLANUEVA. MANOLITA O. UMIL, and NICANOR P. DURAL,
FELICITAS V. SESE, petitioners,
vs.
FIDEL V. RAMOS, MAJ. GEN. RENATO DE VILLA, BRIG. GEN. RAMON MONTANO, BRIG.
GEN. ALEXANDER AGUIRRE, respondents.

G.R. Nos. 84581-82 July 9, 1990

AMELIA ROQUE and WILFREDO BUENAOBRA, petitioners,

vs.
GEN. RENATO DE VILLA and GEN. RAMON MONTANO, respondents.

G.R. Nos. 84583-84 July 9, 1990

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ATTY. DOMINGO T.

ANONUEVO and RAMON CASIPLE. DOMINGO T. ANONUEVO and RAMON
CASIPLE, petitioners,
vs.
HON. FIDEL V. RAMOS, GEN. RENATO S. DE VILLA, COL. EVARISTO CARINO, LT. COL. REX
D. PIAD, T/SGT. CONRADO DE TORRES, S/SGT. ARNOLD DURIAN, and Commanding Officer,
PC-INP Detention Center, Camp Crame, Quezon City, respondents.

G.R. No. 83162 July 9, 1990

IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUS OF VICKY A. OCAYA AND
DANNY RIVERA. VIRGILIO A. OCAYA, petitioner,
vs.
BRIG. GEN. ALEXANDER AGUIRRE, COL. HERCULES CATALUNA, COL. NESTOR
MARIANO, respondents.

G.R. No. 85727 July 9, 1990

IN THE MATTER OF APPLICATION FOR HABEAS CORPUS OF: DEOGRACIAS
ESPIRITU, petitioner,
vs.
BRIG. GEN. ALFREDO S. LIM, COL. RICARDO REYES, respondents.

G.R. No. 86332 July 9, 1990

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF NARCISO B. NAZARENO.

ALFREDO NAZARENO, petitioner,
vs.
THE STATION COMMANDER OF THE MUNTINGLUPA POLICE STATION, Muntinglupa, Metro
Manila, P/SGT. JACINTO MEDINA, P/SGT. ELADIO TAGLE, P/SGT. LEVI SOLEDAD, and
P/SGT. MAURO AROJADO, respondents.

Efren H. Mercado for petitioners in G.R. No. 81567.

Ricardo C. Valmonte for petitioners in G.R. Nos. 84581-82.

Ramon S. Esguerra, Barbara Anne C. Migallos and Agripino G. Morga for petitioners in G.R. Nos.
84583-84.

Efren H. Mercado for petitioner in G.R. No. 83162.

Banzuela, Flores, Miralles, Raneses, Sy, Taquio & Association for petitioner in G.R. No. 85727.

Josefina G. Campbell-Castillo for petitioners in G.R. No. 86332.

The Solicitor General for the respondents.

PER CURIAM:

The are eight (8) petitioners for habeas corpus filed before the Court, which have been consolidated because of the similarity of issues
raised, praying for the issuance of the writ of habeas corpus, ordering the respective respondents to produce the bodies of the persons
named therein and to explain why they should not be set at liberty without further delay.

In their respective Returns, the respondents uniformly assert that the privilege of the writ of habeas
corpus is not available to the petitioners as they have been legally arrested and are detained by
virtue of valid informations filed in court against them.

The petitioners counter that their detention is unlawful as their arrests were made without
warrant and, that no preliminary investigation was first conducted, so that the informations filed
against them are null and void.

The Court has carefully reviewed the contentions of the parties in their respective pleadings, and it
finds that the persons detained have not been illegally arrested nor arbitrarily deprived of their
constitutional right to liberty, and that the circumstances attending these cases do not warrant their
release on habeas corpus.
The arrest of a person without a warrant of arrest or previous complaint is recognized in law. The
occasions or instances when such an arrest may be effected are clearly spelled out in Section 5,
Rule 113 of the Rules of Court, as amended, which provides:

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

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

(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined
while his case is pending, or has escaped while being transferred from one
confinement to another.

In cases falling under paragraphs (a) and (b) hereof, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail, and he shall
be proceeded against in accordance with Rule 112, Section 7.

An arrest without a warrant of arrest, under Section 5 paragraphs (a) and (b) of Rule 113 of the
Rules of Court, as amended, is justified when the person arrested is caught in flagranti delicto, viz.,
in the act of committing an offense; or when an offense has just been committed and the person
making the arrest has personal knowledge of the facts indicating that the person arrested has
committed it. The rationale behind lawful arrests, without warrant, was stated by this Court in the
case of People vs. Kagui Malasugui 1 thus:

To hold that no criminal can, in any case, be arrested and searched for the evidence
and tokens of his crime without a warrant, would be to leave society, to a large
extent, at the mercy of the shrewdest, the most expert, and the most depraved of
criminals, facilitating their escape in many instances.

The record of the instant cases would show that the persons in whose behalf these petitions
for habeas corpus have been filed, had freshly committed or were actually committing an offense,
when apprehended, so that their arrests without a warrant were clearly justified, and that they are,
further, detained by virtue of valid informations filed against them in court.

A brief narration of the facts and events surrounding each of the eight (8) petitions is in order.

In G.R. No. 81567 (Umil vs. Ramos), the record shows that, on 1 February 1988, the Regional
Intelligence Operations Unit of the Capital Command (RIOU-CAPCOM) received confidential
information about a member of the NPA Sparrow Unit (liquidation squad) being treated for a gunshot
wound at the St. Agnes Hospital in Roosevelt Avenue, Quezon City. Upon verification, it was found
that the wounded person, who was listed in the hospital records as Ronnie Javelon, is actually
Rolando Dural, a member of the NPA liquidation squad, responsible for the killing of two (2)
CAPCOM soldiers the day before, or on 31 January 1988, in Macanining Street, Bagong Barrio,
Caloocan City. In view of this verification, Rolando Dural was transferred to the Regional Medical
Services of the CAPCOM, for security reasons. While confined thereat, or on 4 February 1988,
Rolando Dural was positively identified by eyewitnesses as the gunman who went on top of the hood
of the CAPCOM mobile patrol car, and fired at the two (2) CAPCOM soldiers seated inside the car
identified as T/Sgt. Carlos Pabon and CIC Renato Manligot.

As a consequence of this positive identification, Rolando Dural was referred to the Caloocan City
Fiscal who conducted an inquest and thereafter filed with the Regional Trial Court of Caloocan City
an information charging Rolando Dural alias Ronnie Javelon with the crime of "Double Murder with
Assault Upon Agents of Persons in Authority." The case was docketed therein as Criminal Case No.
C-30112 and no bail was recommended. On 15 February 1988, the information was amended to
include, as defendant, Bernardo Itucal, Jr. who, at the filing of the original information, was still
unidentified.

Meanwhile, on 6 February 1988, a petition for habeas corpus was filed with this Court on behalf
of Roberto Umil, Rolando Dural, and Renato Villanueva. The Court issued the writ of habeas
corpus on 9 February 1988 and the respondents filed a Return of the Writ on 12 February 1988.
Thereafter, the parties were heard on 15 February 1988.

On 26 February 1988, however, Roberto Umil and Renato Villanueva posted bail before the
Regional Trial Court of Pasay City where charges for violation of the Anti-Subversion Act had been
filed against them, and they were accordingly released. The petition for habeas corpus, insofar as
Umil and Villanueva are concerned, is now moot and academic and is accordingly dismissed, since
the writ of habeas corpus does not lie in favor of an accused in a criminal case who has been
released on bail. 2

As to Rolando Dural, it clearly appears that he was not arrested while in the act of shooting the two
(2) CAPCOM soldiers aforementioned. Nor was he arrested just after the commission of the said
offense for his arrest came a day after the said shooting incident. Seemingly, his arrest without
warrant is unjustified.

However, Rolando Dural was arrested for being a member of the New Peoples Army (NPA), an
outlawed subversive organization. Subversion being a continuing offense, the arrest of Rolando
Dural without warrant is justified as it can be said that he was committing an offense when arrested.
The crimes of rebellion, subversion, conspiracy or proposal to commit such crimes, and crimes or
offenses committed in furtherance thereof or in connection therewith constitute direct assaults
against the State and are in the nature of continuing crimes. As stated by the Court in an earlier
case:

From the facts as above-narrated, the claim of the petitioners that they were initially
arrested illegally is, therefore, without basis in law and in fact. The crimes of
insurrection or rebellion, subversion, conspiracy or proposal to commit such crimes,
and other crimes and offenses committed in the furtherance, on the occasion thereof,
or incident thereto, or in connection therewith under Presidential Proclamation No.
2045, are all in the nature of continuing offenses which set them apart from the
common offenses, aside from their essentially involving a massive conspiracy of
nationwide magnitude. Clearly then, the arrest of the herein detainees was well
within the bounds of the law and existing jurisprudence in our jurisdiction.

2. The arrest of persons involved in the rebellion whether as its fighting armed
elements, or for committing non-violent acts but in furtherance of the rebellion, is
more an act of capturing them in the course of an armed conflict, to quell the
rebellion, than for the purpose of immediately prosecuting them in court for a
 statutory offense. The arrest, therefore, need not follow the usual procedure in the
prosecution of offenses which requires the determination by a judge of the existence
of probable cause before the issuance of a judicial warrant of arrest and the granting
of bail if the offense is bailable. Obviously, the absence of a judicial warrant is no
legal impediment to arresting or capturing persons committing overt acts of violence
against government forces, or any other milder acts but equally in pursuance of the
rebellious movement. The arrest or capture is thus impelled by the exigencies of the
situation that involves the very survival of society and its government and duly
constituted authorities. If killing and other acts of violence against the rebels find
justification in the exigencies of armed hostilities which is of the essence of waging a
rebellion or insurrection, most assuredly so in case of invasion, merely seizing their
persons and detaining them while any of these contingencies continues cannot be
less justified. . . . 3

The record, moreover, shows that the criminal case filed against Rolando Dural and Bernardo
Itucal, Jr. for "Double Murder, etc." was tried in the court below and at the conclusion thereof, or on
17 August 1988, Rolando Dural and Bernardo Itucal, Jr. were found guilty of the charge and
sentenced accordingly. Rolando Dural is now serving the sentence imposed upon him by the trial
court. Thus, the writ of habeas corpus is no longer available to him. For, as held in the early case
of U.S. vs. Wilson: 4

In this case, whatever may be said about the manner of his arrest, the fact remains
that the defendant was actually in court in the custody of the law on March 29, when
a complaint sufficient in form and substance was read to him. To this he pleaded not
guilty. The trial followed, in which, and in the judgment of guilty pronounced by the
court, we find no error. Whether, if there were irregularities in bringing him personally
before the court, he could have been released on a writ of habeas corpus or now has
a civil action for damages against the person who arrested him we need not inquire.
It is enough to say that such irregularities are not sufficient to set aside a valid
judgment rendered upon a sufficient complaint and after a trial free from error.

II

In G.R. Nos. 84581-82 (Roque vs. De Villa), the arrest of Amelia Roque and Wilfredo Buenaobra,
without warrant, is also justified. When apprehended at the house of Renato Constantino in Marikina
Heights, Marikina, Metro Manila, Wilfredo Buenaobra admitted that he was an NPA courier and he
had with him letters to Renato Constantino and other members of the rebel group. Amelia Roque,
upon the other hand, was a member of the National United Front Commission, in charge of finance,
and admitted ownership of subversive documents found in the house of her sister in Caloocan City.
She was also in possession of ammunition and a fragmentation grenade for which she had no permit
or authority to possess.

The record of these two (2) cases shows that on 27 June 1988, one Rogelio Ramos y Ibanes, a
member of the NPA, who had surrendered to the military authorities, told military agents about the
operations of the Communist Party of the Philippines (CPP) and the New Peoples Army (NPA) in
Metro Manila. He identified some of his former comrades as "Ka Mong", a staff member of the
Communications and Transportation Bureau; "Ka Nelia", a staff member in charge of finance; "Ka
Miller", an NPA courier from Sorsogon and Lopez, Quezon; "Ka Ted", and "Ka Totoy". He also
pointed to a certain house occupied by Renato Constantino located in the Villaluz Compound,
Molave St., Marikina Heights, Marikina, Metro Manila, which is used as a safehouse of the National
United Front Commission (NUFC) of the CPP-NPA.
In view of these revelations, the Constantino house was placed under military surveillance and on 12
August 1988, pursuant to a search warrant issued by Judge Eutropio Migrino of the Regional Trial
Court of Pasig, a search of the house was conducted at about 5:00 o'clock in the afternoon, by a
combined team of the Criminal Investigation Service, National Capital District (CIS-NCD) and the
Constabulary Security Group (CSG). In the course of the search, the following articles were found
and taken under proper receipt:

a) One (1) Colt M16A1 long rifle with defaced serial number;

b) One (1) Cal. .380 ACT/9mm Model PPK/8 SN: 260577 & 2605778;

c) Two (2) fragmentation hand grenades;

d) Fifty-six (56) live ammunition for Cal. 5.56 mm;

e) Five (5) live ammunition for Cal. .380;

f) One (1) ICOM VHF FM Radio Transciever SN: 14903

g) One (1) Regulated power supply 220V AC;

h) One (1) Antennae (adjustable);

i) One (1) Speaker with cord ALEXAR;

j) Voluminous Subversive documents.

When confronted, Renato Constatino could not produce any permit or authority to possess the
firearms, ammunition, radio and other communications equipment. Hence, he was brought to the
CIS Headquarters for investigation. When questioned, he refused to give a written statement,
although he admitted that he was a staff member of the executive committee of the NUFC and a
ranking member of the International Department of the Communist Party of the Philippines (CPP).

At about 8:00 o'clock in the evening of the same day (12 August 1988), Wilfredo Buenaobra arrived
at the house of Renato Constantino in the Villaluz Compound. When accosted, he
readily admitted to the military agents that he is a regular member of the CPP/NPA and that he went
to the place to deliver letters to "Ka Mong", referring to Renato Constatino, and other members of the
rebel group. On further questioning, he also admitted that he is known as "Ka Miller" and that he was
from Barangay San Pedro, Lopez, Quezon. Among the items taken from him were the following:

(1) Handwritten letter addressed to "Ka Bing & Co. from A & Co." dated August 11,
1988;

(2) Handwritten letter addressed to "ROD from VIC (Schell datre)" dated August 11,
1988;

(3) Handwritten letter addressed to "Suzie" from "Vic", dated August 11, 1988.

Also found Buenaobra's possession was a piece of paper containing a written but jumbled telephone
number of Florida M. Roque, sister of Amelia Roque alias "Ka Nelia", at 69 Geronimo St., Caloocan
City. Acting on the lead provided as to the whereabouts of Amelia Roque, the military agents went to
the given address the next day (13 August 1988). They arrived at the place at about 11:00 o'clock in
the morning. After identifying themselves as military agents and after seeking permission to search
the place, which was granted, the military agents conducted a search in the presence of the
occupants of the house and the barangay captain of the place, one Jesus D. Olba.

The military agents found the place to be another safehouse of the NUFC/CPP. They found ledgers,
journals, vouchers, bank deposit books, folders, computer diskettes, and subversive documents as
well as live ammunition for a .38 SPL Winchester, 11 rounds of live ammunition for a cal. .45, 19
rounds of live ammunition for an M16 Rifle, and a fragmentation grenade. As a result, Amelia Roque
and the other occupants of the house were brought to the PC-CIS Headquarters at Camp Crame,
Quezon City, for investigation. Amelia Roque admitted to the investigators that the voluminous
documents belonged to her and that the other occupants of the house had no knowledge of them.
As a result, the said other occupants of the house were released from custody.

On 15 August 1988, Amelia Roque was brought to the Caloocan City Fiscal for inquest after which
an information charging her with violation of PD 1866 was filed with the Regional Trial Court of
Caloocan City. The case is docketed therein as Criminal Case No. C-1196. Another information for
violation of the Anti-Subversion Act was filed against Amelia Roque before the Metropolitan Trial
Court of Caloocan City, which is docketed therein as Criminal Case No. C-150458.

An information for violation of the Anti-Subversion Act was filed against Wilfredo Buenaobra before
the Metropolitan Trial Court of Marikina, Metro Manila. The case is docketed therein as Criminal
Case No. 23715. Bail was set at P4,000.00.

On 24 August 1988, a petition for habeas corpus was filed before this Court on behalf of Amelia
Roque and Wilfredo Buenaobra. At the hearing of the case, however, Wilfredo Buenaobra
manifested his desire to stay in the PC-INP Stockade at Camp Crame, Quezon City. According, the
petition for habeas corpus filed on his behalf is now moot and academic. Only the petition of Amelia
Roque remains for resolution.

The contention of respondents that petitioners Roque and Buenaobra are officers and/or members
of the National United Front Commission (NUFC) of the CPP was not controverted or traversed by
said petitioners. The contention must be deemed admitted. 5 As officers and/or members of the
NUFC-CPP, their arrest, without warrant, was justified for the same reasons earlier stated vis-a-
vis Rolando Dural. The arrest without warrant of Roque was additionally justified as she was, at the
time of apprehension, in possession of ammunitions without license to possess them.

III

In G.R. Nos. 84583-84 (Anonuevo vs. Ramos), the arrest of Domingo Anonuevo and Ramon
Casiple, without warrant, is also justified under the rules. Both are admittedly members of the
standing committee of the NUFC and, when apprehended in the house of Renato Constatino, they
had a bag containing subversive materials, and both carried firearms and ammunition for which they
had no license to possess or carry.

The record of these two (2) cases shows that at about 7:30 o'clock in the evening of 13 August 1988,
Domingo T. Anonuevo and Ramon Casiple arrived at the house of Renato Constatino at Marikina
Heights, Marikina, which was still under surveillance by military agents. The military agents noticed
bulging objects on their waist lines. When frisked, the agents found them to be loaded guns.
Anonuevo and Casiple were asked to show their permit or license to possess or carry firearms and
ammunition, but they could not produce any. Hence, they were brought to PC Headquarters for
investigation. Found in their possession were the following articles:
 a) Voluminous subversive documents

b) One (1) Cal. 7.65 MOD 83 2C Pistol SN: 001412 with one (1) magazine for Cal.
7.65 containing ten (10) live ammunition of same caliber;

c) One (1) Cal. 7.65 Pietro Barreta SN; A18868 last digit tampered with one (1)
magazine containing five (5) live ammunition of same caliber.

At the PC Stockade, Domingo Anonuevo was identified as "Ka Ted", and Ramon Casiple as "Ka
Totoy" of the CPP, by their comrades who had previously surrendered to the military.

On 15 August 1988, the record of the investigation and other documentary evidence were forwarded
to the Provincial Fiscal at Pasig, Metro Manila, who conducted an inquest, after which Domingo
Anonuevo and Ramon Casiple were charged with violation of Presidential Decree No. 1866 before
the Regional Trial Court of Pasig, Metro Manila. The cases are docketed therein as Criminal Cases
Nos. 74386 ad 74387, respectively. No bail was recommended.

On 24 August 1988, a petition for habeas corpus was filed with this Court on behalf of Domingo
Anonuevo and Ramon Casiple, alleging that the said Anonuevo and Casiple were unlawfully
arrested without a warrant and that the informations filed against them are null and void for having
been filed without prior hearing and preliminary investigation. On 30 August 1988, the Court issued
the writ of habeas corpus, and after the respondents had filed a Return of the Writ, the parties were
heard.

The petitioners' (Anonuevo and Casiple) claim that they were unlawfully arrested because there was
no previous warrant of arrest, is without merit The record shows that Domingo Anonuevo and
Ramon Casiple were carrying unlicensed firearms and ammunition in their person when they were
apprehended.

There is also no merit in the contention that the informations filed against them are null and void for
want of a preliminary investigation. The filing of an information, without a preliminary investigation
having been first conducted, is sanctioned by the Rules. Sec. 7, Rule 112 of the Rules of Court, as
amended, reads:

Sec. 7. When accused lawfully arrested without a warrant. — When a person is

lawfully arrested without a warrant for an offense cognizable by the Regional Trial
Court the complaint or information may be filed by the offended party, peace officer
or fiscal without a preliminary investigation having been first conducted, on the basis
of the affidavit of the offended party or arresting officer or person.

However, before the filing of such complaint or information, the person arrested may
ask for a preliminary investigation by a proper officer in accordance with this Rule,
but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code,
as amended, with the assistance of a lawyer and in case of non-availability of a
lawyer, a responsible person of his choice. Notwithstanding such waiver, he may
apply for bail as provided in the corresponding rule and the investigation must be
terminated within fifteen (15) days from its inception.

If the case has been filed in court without a preliminary investigation having been first
conducted, the accused may within five (5) days from the time he learns of the filing
of the information, ask for a preliminary investigation with the same right to adduced
evidence in his favor in the manner prescribed in this Rule.
The petitioners Domingo Anonuevo and Ramon Casiple, however, refused to sign a waiver of the
provisions of Article 125 of the Revised Penal Code, as amended. In the informations filed against
them, the prosecutor made identical certifications, as follows:

This is to certify that the accused has been charged in accordance with Sec. 7, Rule
112 of the 1985 Rules on Criminal Procedure, that no preliminary investigation was
conducted because the accused has not made and signed a waiver of the provisions
of Art. 125 of the Revised Penal Code, as amended; that based on the evidence
presented, there is reasonable ground to believe that the crime has been committed,
and that the accused is probably guilty thereof.

Nor did petitioners ask for a preliminary investigation after the informations had been filed against
them in court. Petitioners cannot now claim that they have been deprived of their constitutional right
to due process.

IV

In G.R. No. 83162 (Ocaya vs. Aguirre), the arrest without warrant, of Vicky Ocaya is justified under
the Rules, since she had with her unlicensed ammunition when she was arrested. The record of this
case shows that on 12 May 1988, agents of the PC Intelligence and Investigation of the Rizal PC-
INP Command, armed with a search warrant issued by Judge Eutropio Migrino of the Regional Trial
Court of Pasig, Metro Manila, conducted a search of a house located at Block 19, Phase II, Marikina
Green Heights, Marikina, Metro Manila, believed to be occupied by Benito Tiamson, head of the
CPP-NPA. In the course of the search, Vicky Ocaya arrived in a car driven by Danny Rivera.
Subversive documents and several rounds of ammunition for a .45 cal. pistol were found in the car
of Vicky Ocaya. As a result, Vicky Ocaya and Danny Rivera were brought to the PC Headquarters
for investigation. When Vicky Ocaya could not produce any permit or authorization to possess the
ammunition, an information charging her with violation of PD 1866 was filed with the Regional Trial
Court of Pasig, Metro Manila. The case is docketed therein as Criminal Case No. 73447. Danny
Rivera, on the other hand, was released from custody.

On 17 May 1988, a petition for habeas corpus was filed, with this Court on behalf of Vicky Ocaya
and Danny Rivera. It was alleged therein that Vicky Ocaya was illegally arrested and detained, and
denied the right to a preliminary investigation.

It would appear, however, that Vicky Ocaya was arrested in flagranti delicto so that her arrest
without a warrant is justified. No preliminary investigation was conducted because she was arrested
without a warrant and she refused to waive the provisions of Article 125 of the Revised Penal Code,
pursuant to Sec. 7, Rule 112 of the Rule of Court, as amended.

The petitioners Vicky Ocaya, Domingo Anonuevo, Ramon Casiple, and Amelia Roque claim that the
firearms, ammunition and subversive documents alleged to have been found in their possession
when they were arrested, did not belong to them, but were "planted" by the military agents to justify
their illegal arrest.

The petitioners, however, have not introduced any evidence to support their aforesaid claim. On the
other hand, no evil motive or ill-will on the part of the arresting officers that would cause the said
arresting officers in these cases to accuse the petitioners falsely, has been shown. Besides, the
arresting officers in these cases do not appear to be seekers of glory and bounty hunters for, as
counsel for the petitioners Anonuevo and Casiple say, "there is absolutely nothing in the evidence
submitted during the inquest that petitioners are on the 'AFP Order of Battle with a reward of
P150,000.00 each on their heads.'" 6 On the other hand, as pointed out by the Solicitor General, the
arrest of the petitioners is not a product of a witch hunt or a fishing expedition, but the result of an in-
depth surveillance of NPA safehouses pointed to by no less than former comrades of the petitioners
in the rebel movement.

The Solicitor General, in his Consolidated Memorandum, aptly observes:

. . . . To reiterate, the focal point in the case of petitioners Roque, Buenaobra,

Anonuevo and Casiple, was the lawful search and seizure conducted by the military
at the residence of Renato Constantino at Villaluz Compound, Molave St., Marikina
Heights, Marikina, Metro Manila. The raid at Constantino's residence, was not a witch
hunting or fishing expedition on the part of the military. It was a result of an in-depth
military surveillance coupled with the leads provided by former members of the
underground subversive organizations. That raid produced positive results. to date,
nobody has disputed the fact that the residence of Constantino when raided yielded
communication equipment, firearms and ammunitions, as well as subversive
documents.

The military agents working on the information provided by Constantino that other
members of his group were coming to his place, reasonably conducted a "stake-out"
operation whereby some members of the raiding team were left behind the place.
True enough, barely two hours after the raid and Constantino's arrest, petitioner
Buenaobra arrived at Constantino's residence. He acted suspiciously and when
frisked and searched by the military authorities, found in his person were letters.
They are no ordinary letters, as even a cursory reading would show. Not only that,
Buenaobra admitted that he is a NPA courier and was there to deliver the letters to
Constantino.

Subsequently, less than twenty four hours after the arrest of Constantino and
Buenaobra, petitioners Anonuevo and Casiple arrived at Constantino's place. Would
it be unreasonable for the military agents to believe that petitioners Anonuevo and
Casiple are among those expected to visit Constantino's residence considering that
Constatino's information was true, in that Buenaobra did come to that place? Was it
unreasonable under the circumstances, on the part of the military agents, not to frisk
and search anyone who should visit the residence of Constantino, such as
petitioners Anonuevo and Casiple? Must this Honorable Court yield to Anonuevo and
Casiple's flimsy and bare assertion that they went to visit Constantino, who was to
leave for Saudi Arabia on the day they were arrested thereat?

As to petitioner Roque, was it unreasonable for the military authorities to effect her
arrest without warrant considering that it was Buenaobra who provided the leads on
her identity? It cannot be denied that Buenaobra had connection with Roque.
Because the former has the phone number of the latter. Why the necessity of
jumbling Roque's telephone number as written on a piece of paper taken from
Buenaobra's possession? Petitioners Roque and Buenaobra have not offered any
plausible reason so far.

In all the above incidents, respondents maintain that they acted reasonably, under
the time, place and circumstances of the events in question, especially considering
that at the time of petitioner's arrest, incriminatory evidence, i.e, firearms,
ammunitions and/or subversive documents were found in their possession.
 Petitioners, when arrested, were neither taking their snacks nor innocently visiting a
camp, but were arrested in such time, place and circumstances, from which one can
reasonably conclude tat they were up to a sinister plot, involving utmost secrecy and
comprehensive conspiracy.

IV

In. G.R. No. 85727 (Espiritu vs. Lim), the release on habeas corpus of the petitioner Deogracias
Espiritu, who is detained by virtue of an Information for Violation of Article 142 of the Revised Penal
Code (Inciting to Sedition) filed with the Regional Trial Court of Manila, is similarly not warranted.

The record of the case shows that the said petitioner is the General Secretary of the Pinagkaisahang
Samahan ng Tsuper at Operators Nationwide (PISTON), an association of drivers and operators of
public service vehicles in the Philippines, organized for their mutual aid and protection.

Petitioner claims that at about 5:00 o'clock in the morning of 23 November 1988, while he was
sleeping in his home located at 363 Valencia St., Sta. Mesa, Manila, he was awakened by his sister
Maria Paz Lalic who told him that a group of persons wanted to hire his jeepney. When he went
down to talk to them, he was immediately put under arrest. When he asked for the warrant of arrest,
the men, headed by Col. Ricardo Reyes, bodily lifted him and placed him in their owner-type
jeepney. He demanded that his sister, Maria Paz Lalic, be allowed to accompany him, but the men
did not accede to his request and hurriedly sped away.

He was brought to Police Station No. 8 of the Western Police District at Blumentritt, Manila where he
was interrogated and detained. Then, at about 9:00 o'clock of the same morning, he was brought
before the respondent Lim and, there and then, the said respondent ordered his arrest and
detention. He was thereafter brought to the General Assignment Section, Investigation Division of
the Western Police District under Police Capt. Cresenciano A. Cabasal where he was detained,
restrained and deprived of his liberty. 7

The respondents claim however, that the detention of the petitioner is justified in view of the
Information filed against him before the Regional Trial Court of Manila, docketed therein as Criminal
Case No. 88-683-85, charging him with violation of Art. 142 of the Revised Penal Code (Inciting to
Sedition).

The respondents also claim that the petitioner was lawfully arrested without a judicial warrant of
arrest since petitioner when arrested had in fact just committed an offense in that in the afternoon of
22 November 1988, during a press conference at the National Press Club.

Deogracias Espiritu through tri-media was heard urging all drivers and operators to
go on nationwide strike on November 23, 1988, to force the government to give into
their demands to lower the prices of spare parts, commodities, water and the
immediate release from detention of the president of the PISTON (Pinag-isang
Samahan ng Tsuper Operators Nationwide). Further, we heard Deogracias Espiritu
taking the place of PISTON president Medardo Roda and also announced the
formation of the Alliance Drivers Association to go on nationwide strike on November
23, 1988. 8

Policemen waited for petitioner outside the National Pres Club in order to investigate him, but he
gave the lawmen the slip. 9 He was next seen at about 5:00 o'clock that afternoon at a gathering of
drivers and symphatizers at the corner of Magsaysay Blvd. and Valencia Street, Sta. Mesa, Manila
where he was heard to say:
 Bukas tuloy ang welga natin, sumagot na ang Cebu at Bicol na kasali sila, at hindi
tayo titigil hanggang hindi binibigay ng gobyerno ni Cory ang gusto nating pagbaba
ng halaga ng spare parts, bilihin at and pagpapalaya sa ating pinuno na si Ka
Roda hanggang sa magkagulo na. 10 (emphasis supplied)

The police finally caught up with the petitioner on 23 November 1988. He was invited for questioning
and brought to police headquarters after which an Information for violation of Art. 142 of the Revised
Penal Code was filed against him before the Regional Trial Court of Manila. 11

Since the arrest of the petitioner without a warrant was in accordance with the provisions of Rule
113, Sec. 5(b) of the Rules of Court and that the petitioner is detained by virtue of a valid information
filed with the competent court, he may not be released on habeas corpus. He may, however be
released upon posting bail as recommended. However, we find the amount of the recommended bail
(P60,000.00) excessive and we reduce it to P10,000.00 only.

VII

In G.R. No. 86332 (Nazareno vs. Station Commander), we also find no merit in the submission
of Narciso Nazareno that he was illegally arrested and is unlawfully detained. The record of this case
shows that at about 8:30 o'clock in the morning of 14 December 1988, one Romulo Bunye II was
killed by a group of men near the corner of T. Molina and Mendiola Streets in Alabang, Muntinglupa,
Metro Manila. One of the suspects in the killing was Ramil Regal who was arrested by the police on
28 December 1988. Upon questioning, Regal pointed to Narciso Nazareno as on of his companions
in the killing of the said Romulo Bunye II. In view thereof, the police officers, without warrant, picked
up Narciso Nazareno and brought him to the police headquarters for questioning. Obviously, the
evidence of petitioner's guilt is strong because on 3 January 1989, an information charging Narciso
Nazareno, Ramil Regala, and two (2) others, with the killing of Romulo Bunye II was filed with the
Regional Trial Court of Makati, Metro Manila. The case is docketed therein as Criminal Case No.
731.

On 7 January 1989, Narciso Nazareno filed a motion to post bail, but the motion was denied by the
trial court in an order dated 10 January 1989, even as the motion to post bail, earlier filed by his co-
accused, Manuel Laureaga, was granted by the same trial court.

On 13 January 1989, a petition for habeas corpus was filed with this Court on behalf of Narciso
Nazareno and on 13 January 1989, the Court issued the writ of habeas corpus, returnable to the
Presiding Judge of the Regional Trial Court of Biñan, Laguna, Branch 24, ordering said court to hear
the case on 30 January 1989 and thereafter resolve the petition.

At the conclusion of the hearing, or on 1 February 1989, the Presiding Judge of the Regional Trial
Court of Biñan, Laguna issued a resolution denying the petition for habeas corpus, it appearing that
the said Narciso Nazareno is in the custody of the respondents by reason of an information filed
against him with the Regional Trial Court of Makati, Metro Manila which had taken cognizance of
said case and had, in fact, denied the motion for bail filed by said Narciso Nazareno (presumably
because of the strength of the evidence against him).

The findings of the Presiding Judge of the Regional Trial Court of Biñan, Laguna are based upon the
facts and the law. Consequently, we will not disturb the same. Evidently, the arrest of Nazareno was
effected by the police without warrant pursuant to Sec. 5(b), Rule 113, Rules of Court after he was
positively implicated by his co-accused Ramil Regala in the killing of Romulo Bunye
II; and after investigation by the police authorities. As held in People vs. Ancheta: 12
 The obligation of an agent of authority to make an arrest by reason of a crime, does
not presuppose as a necessary requisite for the fulfillment thereof, the indubitable
existence of a crime. For the detention to be perfectly legal, it is sufficient that the
agent or person in authority making the arrest has reasonably sufficient grounds to
believe the existence of an act having the characteristics of a crime and that the
same grounds exist to believe that the person sought to be detained participated
therein.

VIII

It is to be noted that, in all the petitions here considered, criminal charges have been filed in the
proper courts against the petitioners. The rule is, that if a person alleged to be restrained of his
liberty is in the custody of an officer under process issued by a court judge, and that the court or
judge had jurisdiction to issue the process or make the order, of if such person is charged before any
court, the writ of habeas corpus will not be allowed. Section 4, Rule 102, Rules of Court, as
amended is quite explicit in providing that:

Sec. 4. When writ is allowed or discharge authorized. — If it appears that the person
alleged to be restrained of his liberty is in the custody of an officer under process
issued by a court or judge or by virtue of a judgment or order of a court of record, and
that the court or judge had jurisdiction to issue the process, render the judgment, or
make the order, the writ shall not be allowed; or if the jurisdiction appears after the
writ is allowed, the person shall not be discharged by reason of any informality or
defect in the process, judgment, or order. Nor shall anything in this rule be held to
authorize the discharge of a person charged with a convicted of an offense in the
Philippines or of a person suffering imprisonment under lawful judgment. (emphasis
supplied)

At this point, we refer to petitioner's plea for the Court of re-examine and, thereafter, abandon its
pronouncement in Ilagan vs. Enrile, 13 that a writ of habeas corpus is no longer available after an
information is filed against the person detained and a warrant of arrest or an order of commitment, is
issued by the court where said information has been filed. 14 The petitioners claim that the said ruling,
which was handed down during the past dictatorial regime to enforce and strengthen said regime,
has no place under the present democratic dispensation and collides with the basic, fundamental,
and constitutional rights of the people. Petitioners point out that the said doctrine makes possible the
arrest and detention of innocent persons despite lack of evidence against them, and, most often, it is
only after a petition for habeas corpus is filed before the court that the military authorities file the
criminal information in the courts of law to be able to hide behind the protective mantle of the said
doctrine. This, petitioners assert, stands as an obstacle to the freedom and liberty of the people and
permits lawless and arbitrary State action.

We find, however, no compelling reason to abandon the said doctrine. It is based upon express
provision of the Rules of Court and the exigencies served by the law. The fears expressed by the
petitioners are not really unremediable. As the Court sees it, re-examination or reappraisal, with a
view to its abandonment, of the Ilagan case doctrine is not the answer. The answer and the better
practice would be, not to limit the function of the habeas corpus to a mere inquiry as to whether or
not the court which issued the process, judgment or order of commitment or before whom the
detained person is charged, had jurisdiction or not to issue the process, judgment or order or to take
cognizance of the case, but rather, as the Court itself states in Morales, Jr. vs. Enrile, 15 "in all
petitions for habeas corpus the court must inquire into every phase and aspect of petitioner's
detention-from the moment petition was taken into custody up to the moment the court passes upon
the merits of the petition;" and "only after such a scrutiny can the court satisfy itself that the due
process clause of our Constitution has in fact been satisfied." This is exactly what the Court has
done in the petitions at bar. This is what should henceforth be done in all future cases of habeas
corpus. In Short, all cases involving deprivation of individual liberty should be promptly brought to the
courts for their immediate scrutiny and disposition.

WHEREFORE, the petitions are hereby DISMISSED, except that in G.R. No. 85727 (Espiritu vs.
Lim), the bail bond for petitioner's provisional liberty is hereby ordered reduced from P60,000.00 to
P10,000.00. No costs.

SO ORDERED.

G.R. No. 182601 November 10, 2014

JOEY M. PESTILOS, DWIGHT MACAPANAS, MIGUEL GACES, JERRY FERNANDEZ and

RONALD MUNOZ, Petitioners,
vs.
MORENO GENEROSO and PEOPLE OF THE PHILIPPINES, Respondents.

DISSENTING OPINION

LEONEN, J.:

I regret that I cannot bring myself to agree that the warrantless arrest was valid.

To review, the facts as established are as follows:

Both petitioners and respondent are residents of Kasiyahan Street, Barangay Holy Spirit, Quezon
City.1

On February 20, 2005, at around 3:00 to 3:15 a.m., petitioners Joey M. Pestilo.s (Pestilos ), Dwight
Macapanas (Macapanas ), Miguel Gaces (Gaces), Jerry Hernandez (Hernandez), and Ronald
Mufioz (Mufioz), and respondent Atty. Moreno Generoso (Atty. Generoso) were waiting for the water
supply on Kasiyahan Street. Pestilos and Macapanas got into an altercation with Atty. Generoso that
involved physical violence. Immediately after the incident, Pestilos and Macapanas went to the
barangay hall to seek help from the local barangay officials.2

At the barangay hall, Pestilos reported the incident and wanted to have it inscribed in the barangay
blotter. The barangay tanod advised them to secure a medical certificate first before Pestilos and
Macapanas could register their complaint in the barangay blotter.3 Pestilos and Macapanas
requested the barangay tanod to accompany them on their way back to their residences on
Kasiyahan Street, "to avoid further trouble."4

At around 5:30 a.m., Pestilos and Macapanas arrived with the barangay tanod on Kasiyahan Street.
Bythen, officers from Batasan Hills Police Station were present. Atty. Generoso pointed to Pestilos
and Macapanas as perpetratorsof his alleged mauling.5 The two began complaining about Atty.
Generoso’s attack against them. The police officers, led by SPO2 Dominador Javier (SPO2 Javier),
brought Pestilos, Macapanas, and Atty. Generoso to the police station. The other petitioners, Gaces,
Hernandez, and Muñoz, were brought by Pestilos and Macapanas to act as their witnesses.

Macapanas left the police station for a while to get a medical certificate from the East Avenue
Medical Center, as advised by the barangay tanod earlier.6 Meanwhile, at the police station, Atty.
Generoso filed charges against all petitioners (Pestilos, Macapanas, Gaces, Hernandez, and
Muñoz) for frustrated murder.7

Macapanas also filed charges against Atty. Generoso for slight physical injuries.8 The police officers
in the Batasan Hills Police Station rendered reports for both charges. Inaddition to the reports, SPO2
Javier executed an affidavit of arrestwith respect to petitioners.9

At the Office of the Prosecutor,the prosecutor subjected all the petitioners to inquest, while the
complaint against Atty. Generoso was treated as a case subject topreliminary investigation.10 Two
days after the incident, the prosecutor filed an information against petitioners for attempted murder.11

Before arraignment, petitioners filed an urgent motion for regular preliminary investigation. However,
the Regional Trial Court of Quezon City, Branch 96, denied the motion.12 They filed a motion for
reconsideration, but the motion was denied.13

On appeal via Rule 65, the Court ofAppeals sustained the order of the Regional Trial Court:
WHEREFORE, the instant petition for certiorari is hereby DISMISSEDfor lack of merit.

SO ORDERED.14

The Court of Appeals denied petitioners’ motion for reconsideration in the resolution dated April 17,
2008.15 They came to this court via a petition for review on certiorari. They argue that they are
entitled to preliminary investigation. Subjecting them to inquest proceedings was irregular because
they were not properly arrested. Assuming that their decision to go to the police station was an
"arrest," the arrest was invalid because it was not made in compliance with the ruleon warrantless
arrests.

I vote that the petition be granted. Petitioners are entitled to a preliminary investigation because the
warrantless arrest was not valid.

The right of a person to his or her liberties in the form of protections against unreasonable searches
and seizures enjoys a high degree of protection.16 The Constitution only allows for reasonable
searches and seizures. As a general rule, courts decide whether there is probable cause to issue a
search warrant or warrant of arrest. In People v. Burgos,17 this court stated that:

The right of a person to be secure against any unreasonable seizure of his body and any deprivation
of his liberty is a most basic and fundamental one. The statute or rule which allows exceptions to the
requirement of warrants of arrest is strictly construed.Any exception must clearly fall within the
situations when securing a warrant would be absurd or is manifestly unnecessary as provided by the
Rule. We cannot liberally construe the rule on arrests without warrant or extend its application
beyond the cases specifically provided by law. To do so would infringe upon personal liberty and set
back a basic right so often violated and so deserving of full protection.18 (Emphasis supplied).

The limited circumstances for the conduct of reasonable warrantless arrests are enumerated in Rule
113, Section 5 of the Rules of Court.

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

(a) When, in his presence, the person to be arrested has committed, is actually committing,
or is attempting to commit an offense;
 (b) When an offense has just been committed, and he has probable cause to believe based
on personal knowledge of facts or circumstances that the person to be arrested has
committed it; and

(c) When the person to be arrestedis a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined while his
case ispending, or has escaped while being transferred from one confinement to another.

In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be
forthwith delivered to the nearest police station or jail, and he shall be proceeded against in
accordance with Rule 12, Section 7.

This case does not fall under the first and third exceptions. The question is whether this falls under
the special circumstances of Section 5(b) of Rule 113 of the Rules of Court. The elements of a valid
warrantless arrest under Rule113, Section 5(b) are the following: (1) the offense has just been
committed; (2) the arresting officer has personal knowledge of facts orcircumstances; and (3) these
facts and circumstances give riseto probable cause that the person to be arrested has committed the
offense.

The first element requires that there are facts leading to a conclusion that an offense has been
committed. Being based on objectivity, the first element requires the occurrence of facts that, when
taken together, constitutes the commission of an offense.

If we accepted the version of Atty. Generoso, it appears that he was a victim of an attack from
petitioners. The facts that he narrated may, thus, constitute the possible offenses of physical injuries
or even attempted or frustrated homicide or murder. The offense should be evaluated from the facts
and circumstances as it appearedto the person making the warrantless arrest. The element that the
offense had "just been committed" was introduced in the 1985 revision of the Rules of Criminal
Procedure. This element must be read in relation to the general requirement that a warrant of arrest
must be procured to ensure a more impartial determination of the existence of facts and
circumstances. This element, however, acknowledges the necessities of law enforcement. At times,
the police officer arrives at the scene of the crime after the crime just happened and there are facts
and circumstances — such as the sudden flight of a person or the wielding of a weapon by a person
near the incident — that reasonably lead the police officer to believe that the person is the
perpetrator. In such cases, to ensure that the right person can be put withinthe jurisdiction of a court,
the rules allow a valid warrantless arrest.

This necessity is wanting in this case. Petitioners themselves, together with a barangay tanod,
voluntarily went to the police station. They did so after they had gone to the barangay hall to report
the incident and had their own complaints entered into the barangay blotter.

There was no urgency to arrest petitioners. Theywere not planning to flee. They voluntarily
presented themselves as complainants against private respondent. For reasons not clear in the
record, they were subjected to a warrantless arrest and thento inquest. Private respondent, on the
other hand, was allowed to be a respondent in a preliminary investigation. He was not arrested.

Several cases qualified the time element of "just been committed" to range from three (3) hours19 to
14 days.20 This is not the correct approach.

In Re Petition for Habeas Corpus of Laurente C. Ilagan21 and Umil v. Ramos,22 cited by the majority,
were decided under the dark days of Martial Law. The dissents in those cases were clarion calls for
the protection of our liberties.
Former Chief Justice Claudio Teehankee, in his dissent in In Re Ilagan, was of the opinion that "just
been committed" "connotes immediacy in point of time."23 Former Associate Justice Florenz
Regalado24 emphasized the requirement of immediacy:

The brevity in the interval of time between the commission of the crime and the arrest, as now
required by Section 5(b), must have been dictated by the consideration, among others, that by
reason of such recency of the criminal occurrence, the probability of the arresting officer acquiring
personal and/or reliable knowledge of such fact and the identity of the offender is necessarily
enhanced, if not assured. The longer the interval, the more attenuated are the chances of his
obtaining such verifiable knowledge.25

In the same case, Associate Justice Florentino Feliciano illustrated how a hot pursuit warrantless
arrest should be made:

Turning to Section 5 (b), two (2) elements must coincide before a warrantless arrest may be
sustained under this subsection: 1) the offense must have "just been committed" when the arresting
officer arrived in the scene; and 2)the officer must have "personal knowledge" of facts indicating that
the person to be arrested has committed the offense. In somewhat different terms, the first
requirement imports that the effects or corpus of the offense which has just been committed are still
visible: e.g. a person sprawled on the ground, dead of a gunshot wound; or a person staggering
around bleeding profusely from stab wounds.The arresting officer may not have seen the actual
shooting or stabbing of the victim, and therefore the offense can not be said to have been committed
"in [his] presence." The requirement of "personal knowledge" on the part of the arresting officer is a
requirement that such knowledge must have been obtained directly from sense perception by the
arresting officer.That requirement would exclude information conveyed by another person, no matter
what his reputation for truth and reliability might be. Thus, where the arresting officer comes upon a
person dead on the streetand sees a person running awaywith a knife from where the victim is
sprawled on the ground, he has personal knowledge of facts which rendered it highly probable that
the person fleeing was the doer of the criminal deed. The arresting officer must, in other words,
perceive through his own senses some act which directly connects the person to be arrested with
the visible effects or corpus of a crime which has "just been committed."26 (Emphasis supplied)

The second element under Rule 113, Section 5(b) is that the arresting officer has personal
knowledge of facts and circumstances. Personal knowledge is "derived from the [person’s] own
perception."27

On the other hand, information not of personal knowledge is hearsay. Hearsay is "evidence not of
what the witness knows himself but of what he has heard from others."28

The arresting officers must obtain personal knowledge of the facts and circumstances that lead to
the conclusion that an offense has just been committed. They must also perceivefacts and
circumstances that would substantiate the probable liability of the person. The accused is usually
identified when he or she is seen fleeing the scene because the act of fleeing suggests the attempt
to evade authority. A person in possession of a weapon could also be perceived as the one liable for
an offense.

There must be a reasonable amount offacts short of seeing the entire offense being committed. A
collection offacts, on the other hand, is a set of circumstances. If the arresting officer saw facts and
circumstances indicating that an offense has just been committed and the person is probably liable
for that offense, a warrantless arrest is justified under Rule 113, Section 5(b). If the arresting officer
saw the offense being committed, then the warrantless arrest will be justified under Rule 113,
Section 5(a), not under subsection (b).
Facts or circumstances relating tothe nature of the offense cannot substitute for personal knowledge
of facts or circumstances relating to the liability of the person who probably committed the offense.
One pertains to the object and the other the method of perception. SPO2 Javier had personal
knowledgeof the injuries of private respondent. This is only personal knowledge with respect to the
offense, not yet as to the identity of the perpetrators.

On the other hand, the information obtained by the police officers when private respondent pointed
to petitioners as the perpetrators of the crime was hearsay. Private respondent’s act of pointing to
petitioners communicated that petitioners committed the mauling. It becomes hearsay on the part of
the police officers who did not see petitioners mauling private respondent. The only personal
knowledge obtained by the police officers was that private respondent pointed to petitioners.

According to petitioners, they returned to the crime scene and saw the police officers. They also
informed the police officers that private respondent attacked them. That is another hearsay received
by the police officers at the crime scene.

The police officers perceived limited facts while investigating at the crime scene. These limited facts
do not provide sufficient bases for the liability of anyone at the scene. No one was reported holding a
weapon allegedly used against private respondent. None of the petitioners fled at the sight of the
police officers.

There were only facts relating to the offense, such as the sight of an injured private respondent. This
fact cannot substitute for the personal knowledge of facts and circumstances relating to the liability
of petitioners.

Parenthetically, the police officers also had hearsay knowledge that private respondent was the
perpetrator against petitioners. For reasons not clear in the records, however, the police officers
preferred not to arrest him.

The third element requires that these facts and circumstances must lead to the conclusion that there
is probable cause to believe that the person to be arrested committed the offense. Rule 113, Section
5(b) requires that "probable cause" or "actual belief or reasonable grounds of suspicion" must be
supported by personal knowledge of facts or circumstances that, when taken together, builds the
suspicion thatan individual committed the offense.

The plurality in the phrasing suggests that there should be more than one fact or circumstance. In
People v. Cogaed,29 we ruled that for there to be a "genuine reason" to execute a warrantless arrest
or search, there should be more than one suspicious circumstance to infer that there was criminal
activity.30

In most cases that found the validity of the warrantless arrest, there was the presence of more than
one circumstance that formed part of the personal knowledge of the police officers.

In People v. Jayson,31 police officers were summoned immediately to the crime scene. They found
the victim, and saw the accused fleeing. These are two facts that show that the offense was
committed and that the person arrested was probably responsible because he attempted to escape.

In People v. Tonog,32 there was a murder. Police officers at the crime scene saw the following: the
body of the victim and a motorcab that was driven by Tonog that day. Tonog voluntarily went to the
police station, and one of the police officers noticed that he had blood splatters on his jeans. All
three facts and circumstances were observed by the police officers during the arrest, thereby
building the probable cause that Tonog committed the murder.33 On the other hand, this court ruled
that there are instances when there is no personal knowledge of the police officers; hence, there is
no valid warrantless arrest.

In People v. Burgos,34 a source informed the police officers that Ruben Burgos was engaged in
subversive activities. This court held that the report was not enough to enact a warrantless arrest
under Rule 113, Section 5(b), especially since there were no facts personally known to the police
officers that a crime was committed.

In Posadas v. Ombudsman,35 the National Bureau of Investigation officers arrested two students
identified bywitnesses as the perpetrators of a killing during a fraternity rumble. The arrest was made
without a warrant, and this court declared the warrantless arrest invalid.

Rule 113, Section 5(b) did not apply in People v. Briones36 where the accused was arrested after one
eyewitness had identified him as the murderer. This court declared that the warrantless arrest was
invalid "because the police officer who effected the arrest indubitably had no personal knowledge of
facts indicating that the person to be arrested has committed the crime. It is [the] eyewitness . . . who
had such personal knowledge."37

Jurisprudence often repeats the doctrine summarized in Umil v. Ramos:38

It has been ruled that "personal knowledge of facts", in arrests without warrant must be based upon
probable cause, which means an actual belief or reasonable ground of suspicion.

The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting
officers,the suspicion that the person to be arrested is probably guilty of committing the offense, is
based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create
the probable cause of guilt of the person to be arrested. A reasonable suspicion therefore must be
founded on probable cause, coupled with good faith on the part of the peace officers making the
arrest.39 (Citations omitted)

The confusion with this treatment is that it qualifies personal knowledge with probable cause, not the
other way around. The rule states that "probable cause . . . [is] based on personal knowledge of
facts and circumstances."40 It does not state personal knowledge of facts based on probable cause
or reasonable suspicion.The import of the text is that reasonable suspicion and probable cause is
built by personal knowledge of facts and circumstances. Personal knowledge is the method of
perceiving facts. Probable cause is the conclusion of all the facts so perceived. Flight of the accused
is often a sign that there is probable cause that he or she committed the offense. When he or she
attempts to escape from authorities, the authorities must act immediately because not doing so
might compromise the investigation.

If there is no personal knowledge offacts and circumstances on the part of the police officers, a
warrantless arrest under Rule 113, Section 5(b) will be unreasonable because there is nothing to
base probable cause on that the accused committed the offense.

Here, there was no flight of the accused. On the contrary, petitioners returned to the crime
scene41 because they felt that they were the victims, not the perpetrators.

The police officers were still investigating the matter when petitioners were brought to the police
station. The circumstances of the situation did not call for an exception to the rulerequiring a warrant
of arrest. The statement made by private respondent on the identity of his perpetrators, as
communicated to the police, could have been reduced to an affidavit used to support an application
for a warrant of arrest. The statements made by petitioners were other pieces of evidence to be
considered for the issuance of a warrant of arrest.

The police officers were not threatened by the immediate flight of the alleged perpetrators who
believed that they also have a right to vindicate since they were cooperating with the police. All facts
point to the reasonability of obtaining a warrant ofarrest. There was no exigency to cause the
warrantless arrest of petitioners.

It bears stressing that petitioners went with the police officers in their capacity as complainants
against private respondent. They did not know that they were already being arrested. Totheir mind,
the police officers just wanted to continue the investigation at the police station. This is shown by the
police report dated February 20,2005 regarding the complaint of petitioner Macapanas against
private respondent Atty. Generoso. In this report, petitioner Macapanas was the complainant, and
private respondent Atty. Generoso was the accused. To wit:

It is worthy to mentioned [sic] that complainant voluntarily [sic] appeared to this Station wherein he
was identified by complainant at [sic] the one who punched him(,) which also causing [sic] him to be
bitten (by) a dog thereat.42

The existence of two police reportsfor two separate crimes committed during one incident — one
with petitioners as accused43 and the other with private respondent as accused44 — proves that at the
time that petitioners were taken into custody, the police officers were still uncertain about what
happened. This negates the presenceof probable cause, required by Rule 113, Section 5(b).

Probable cause must exist at the time of the warrantless arrest. Otherwise, any form of uncertainty
should be resolved through the exercise of judicial caution.

When the police officers becamemore convinced that private respondent’s version was more
believable than petitioners’, the police officers should have applied for a warrant of arrest. SPO2
Javier expedited procedure when he executed an affidavit of arrest. He made it appear that there
was a valid warrantless arrest, instead of applying for a warrant of arrest. This is unacceptable in our
Constitution.

Strict standards should be imposed on law enforcement. It is said that "the prosecution can bring the
full resources of the state to bear on winning. Imposing a heavy burden of proof on the prosecution
diminishes this advantage."45

Relaxing our standards in taking individuals under custody enhances the advantage of the
prosecution, tothe detriment of the individual. Compared to the state, the accused does not have the
resources to question the legitimacy of an arrest. Some of them do not even know that they are
already being arrested. Many arrested individuals may not even be able to afford lawyers until the
public attorney steps in during custodial investigation or, worse, during arraignment. By then, the
accused would have already been deprived of his or her liberty.

The circumstances of this case requirethe vigilance of this court in protecting the neglected rights of
petitioners. Petitioners were just in their 20s when the altercation occurred. Pestilos was a student,
Macapanas and Muñoz were unemployed, Gaces was a driver, and Fernandez was a printing press
operator. Petitioners havebeen certified as indigents.46 They are of limited means. At the time that
they were trying to vindicate their rights at the police station, they did not have counsel.

On the other hand, it is easier for the police officers to be persuaded by private respondent, a
member of the bar who is fully aware of his constitutional rights. The police officers became more
inclined to believe his story because he is a lawyer, while petitioners were all non-lawyers.
Petitioners were not expected to know that a detention was an arrest. The affidavit of arrest stated
that SPO2 Javier "informed all the suspects of the charges imputed against themby complainant
Atty. Generoso."47 To an ordinary citizen, they were just complaints. An invitation is really just an
invitation for petitioners. They did not go to the police station because they were being arrested.

With the absence of a valid warrantless arrest, petitioners are entitled to preliminary investigation.
Preliminary investigation is "an inquiry or a proceeding the purpose of which is to determine whether
there is sufficient ground to engender a well-founded belief that a crime has been committed and the
respondent is probably guilty thereof, and should be held for trial."48 The right to preliminary
investigation is statutory in character.49 Being mandated by statute, a preliminary investigation
becomes part of the constitutional due process rights accorded to the accused.50

Under Rule 112, a preliminary investigation is required if an offense has a penalty of at least four (4)
years, two (2) months, and one (1) day. However, under Section 6 of the same rules, a preliminary
investigation is no longer necessary if the person accused was arrested lawfully without a warrant. If
there was a valid warrantless arrest under Rule 113, Section 5, inquest proceedings are required.

Based on the Manual for Prosecutors, inquests are conducted by a public prosecutor assigned as an
Inquest Officer. An inquest is conducted only at the police stations or headquarters of the Philippine
National Police, unless otherwise directed.51

Here, petitioners alleged that theywere brought from Batasan Hills Police Station to the Office of the
Prosecutor. At the Office of the Prosecutor, it was decided that petitioners would be subjected to
inquest, while respondent would undergo preliminary investigation. This irregularly conducted
inquest aggravates the fact that petitioners were subjected to an inquest despite lack of a valid
warrantless arrest.

Considering that petitioners were not arrested in accordance with the strict guidelines of our
Constitution and the Rules of Court, petitioners' statutory right to preliminary investigation is
mandatory.

ACCORDINGLY, the petition should be GRANTED.

MARVIC M.V.F LEONEN

Associate Justice