we held that the reinstatement of criminal cases against the

accused did not violate his right against double jeopardy since the
dismissal of the information by the trial court had been effected at
his own instance when the accused filed a motion to dismiss on the
grounds that the facts charged do not constitute an offense and
that the RTC had no jurisdiction over the case. In this case,
considering that since the dismissal of the previous criminal case
against petitioner was by reason of his motion for the quashal of
the information, petitioner is thus deemed to have expressly given
his consent to such dismissal. There could then be no double
jeopardy in this case since one of the requisites therefore, i.e., that
the dismissal be without accused’s express consent, is not
present.
SECOND DIVISION
G.R. No. 136264 May 28, 2004
ATTY. REYNALDO P. DIMAYACYAC, petitioner,
vs.
HON. COURT OF APPEALS, HON. VICENTE Q. ROXAS, IRENE AGBADA-CRUZ, SIXTO AGBADA CRUZ,
MERCEDES ARISTORENAS and ROMEO GOMEZ and PEOPLE OF THE PHILIPPINES, respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
Before us is a petition for review on certiorari assailing the Decision 1 of the Court of Appeals (CA for brevity)
dated November 13, 1998 in CA-G.R. SP No. 43884, denying Atty. Reynaldo P. Dimayacyac’s petition for
certiorari and ruling that the Regional Trial Court (Branch 227) of Quezon City (RTC for brevity) was correct in
denying petitioner’s motion to quash the information charging petitioner with falsification of public documents,
docketed as Criminal Case No. Q-93-49988.
The antecedent facts as borne out by the records of the case are accurately narrated in the CA Decision dated
November 13, 1998, thus:
An information for falsification of public documents docketed as Criminal Case No. Q-91-18037 at the
RTC of Quezon City was filed against petitioner along with some others. That information reads:
The undersigned Assistant City Prosecutor accuses LOURDES ANGELES, ESTRELLA
MAPA, ATTY. PONCIANO R. GUPIT, and ATTY. REYNALDO P. DIMAYACYAC of the crime
of FALSIFICATION OF PUBLIC DOCUMENT (under Article 172, first and last paragraph in
relation to Article 171 paragraph 2 of the Revised Penal Code), committed as follows:
That on or about the 5th day of 1986, in Quezon City, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, all private individuals,
conspiring together, confederating with and mutually helping one another, did then
and there willfully, unlawfully and feloniously commit the act of falsification of public
documents, by then and there falsifying or causing the falsification of the following
documents, to wit:
(a) Certification dated March 10, 1986 purportedly signed by a certain
Fernando Dizon, Record Management Analyst of the Bureau of Land,
Central Office, Manila;
(b) Report dated May 5, 1986 purportedly signed by a certain Jose Mariano,
Chief Record Management Division of Bureau of Land, Central Office,
Manila; and
(c) Sales Certificate and Deed of Assignment allegedly issued by the Bureau
of Land in favor of Lourdes Angeles; that despite the fact that said accused
knew all the time that said documents are fake and spurious used the same
in the Petition for Reconstitution of Records of the technical description of
Lots Nos. 755, 777, 778 and 783 of the Piedad Estate covered by TCT No.
 14, Decree No. 667, GLRO Record No. 5975 and the issuance of Title
thereto filed by Estrella Mapa over and involving the aforesaid lots in Land
Registration Case docketed as LRC Case No. 3369 (86) before Branch 99,
Regional Trial Court, Quezon City and that by virtue of said falsification and
the use of the same as evidence in Court Honorable Presiding Judge
Godofredo Asuncion issued an order dated June 30, 1986 granting said
petition, and pursuant thereto the Register of Deeds of Quezon City issued
Transfer Certificates of Titles Nos. 348156, 348291 and 348292 in the name
of Estrella Mapa thereby embracing and/or encroaching the portions of the
properties belonging to Romeo D. Gomez, Sixto Agbada, Irene Agbada-Cruz
and Mercedes Aristorenas whose properties were embraced and included in
the said Transfer Certificates of Titles and in such amount as may be
awarded under the provisions of the Civil Code.
CONTRARY TO LAW.
Before his arraignment, petitioner moved to quash the information on two (2) grounds. First, that the
officer who filed the information had no legal authority to do so, and second, that more than one
offense was charged in the information.
Pending resolution of the motion to quash, petitioner was arraigned.
By Order of August 23, 1991, Judge Benigno T. Dayaw of Branch 80 of the Regional Trial Court of
Quezon City to whose sala Criminal Case No. Q-91-18037 was raffled, holding that the "grant or denial
of Motion to Dismiss whether the accused is arraigned or not is discretionary on the part of the Court,"
it citing People vs. IAC, L-66939-41, January 10, 1987, granted the petitioner’s motion to quash upon
the second ground. Accordingly, the information was quashed.
More than two (2) years after the quashal of the information in Criminal Case No. Q-91-18037 or on
October 19, 1993, the Quezon City Prosecutor filed against the same accused including petitioner two
(2) informations for falsification of public documents docketed at the Quezon City RTC as Criminal
Case Nos. Q-93-49988 and 49989. The Informations arose from the questioned acts of falsification
subject of the earlier quashed information in Criminal Case No. Q-91-18037.
Petitioner later filed with Branch 103 of the RTC of Quezon City to which the informations were raffled
a motion for the quashal thereof on the ground of double jeopardy, citing Section 3(h) of Rule 117 of
the Revised Rules of Court.
Petitioner argued at the court a quo that he would be placed in double jeopardy as he was indicted
before for the same offenses and the case was dismissed or otherwise terminated without his express
consent.
By the assailed Order of December 18, 1996, public respondent, Judge Vicente Q. Roxas of Branch
227 of the RTC of Quezon City to which the two (2) informations against petitioner, et al, were
eventually lodged, held that the information in Criminal Case No. Q-93-49988 involved a different
document as that involved in Criminal Case No. Q-91-18037 which had already been quashed.
Resolution of the motion to quash the information in Criminal Case No. Q-93-49989 was stayed
pending the submission by petitioner of the documents required by the court a quo. Public respondent
thus denied the motion to quash the information in Criminal Case No. Q-93-49988 and ordered
petitioner’s arraignment, he holding that said case did not place petitioner in double jeopardy. 2
Herein petitioner then filed a petition for certiorari before the CA which denied his petition stating in its Decision
that since the Information in Criminal Case No. Q-91-18037, on petitioner’s motion, was quashed on the ground
that more than one offense was charged pursuant to Sec. 3 (e) of Rule 117 of the Revised Rules of Court, 3 he
is not placed in double jeopardy by the filing of another Information for an offense included in the charge
subject of the Information in Criminal Case No. Q-91-18037.4
Hence, herein petition for review on certiorari assigning the following errors of the CA, to wit:
I. That the Honorable Court of Appeals ERRED in disregarding the legal doctrine that THERE IS
DOUBLE JEOPARDY, in the case now pending before Respondent Judge Vicente Q. Roxas;
II. That the Honorable Court of Appeals ERRED in not adhering to the decisions of this Honorable
Supreme Court, as well as to applicable jurisprudence on the matter;
III. That the Honorable Court of Appeals ERRED in not taking into account that based on the
"Manifestation and Motion (To Grant Petition) In Lieu of Comment" filed by the Office of the Solicitor
General, the ORDER of dismissal of Honorable Judge Benigno T. Dayaw in Criminal Case No. Q-91-
18037 on August 23, 1991 has become final and executory; and
IV. That the Honorable Respondent Court of Appeals ERRED in concluding that an ORDER sustaining
the motion to quash is not a bar to another prosecution for the same offense, as it has no legal basis. 5
On the other hand, the Office of the Solicitor General (OSG) contends that petitioner, by filing the motion to
quash and refusing to withdraw it after he was arraigned, is deemed to have waived his right against double
jeopardy, as his motion to quash constituted his express consent for the dismissal of the information. However,
the OSG advances the view that the criminal case against herein petitioner may be dismissed for the inordinate
delay in the conduct of preliminary investigation for the purpose of filing the proper information, which is a
violation of the accused’s constitutional right to due process of law and to speedy disposition of cases.
Private respondent complainant Irene Agbada-Cruz, in turn, submits that the Court of Appeals committed no
error since the dismissal or quashal of an information is not a bar to another prosecution except when the
motion to quash is based on the ground that (1) the criminal action or liability has been extinguished or that (2)
the accused has previously been convicted or in jeopardy of being convicted or acquitted of the offense
charged, pursuant to Section 6 in relation to Section 3, Rule 117 of the Rules of Court, to wit:
Section 6. Order sustaining the motion to quash not a bar to another prosecution; exception. - An order
sustaining the motion to quash is not a bar to another prosecution for the same offense unless the
motion was based on the grounds specified in Section 3, sub-sections (f) and (h) of this Rule.
Section 3. Grounds. – The accused may move to quash the complaint or information on any of the
following grounds:
(a) That the facts charged do not constitute an offense;
(b) That the court trying the case has no jurisdiction over the offense charged or the person of
the accused;
(c) That the officer who filed the information had no authority to do so;
(d) That it does not conform substantially to the prescribed form;
(e) That more than one offense is charged except in those cases in which existing laws
prescribe a single punishment for various offenses;
(f) That the criminal action or liability has been extinguished;
(g) That it contains averments which, if true, would constitute a legal excuse or justification;
and
(h) That the accused has been previously convicted or in jeopardy of being convicted,
or acquitted of the offense charged. (Emphasis supplied)
Thus, private respondent Cruz argues that since the previous information was quashed on the ground of
duplicity of offenses charged, the subsequent filing of a proper information is, therefore, not barred.
In their Memorandum, private respondents-complainants Romeo Gomez and Mercedes Aristorenas contend
that (1) jeopardy does not attach where the dismissal of the information was effected at the instance of the
accused; and (2) there was no violation of petitioner’s right to a speedy disposition of his case since he never
raised this issue in the trial court nor in the appellate court, hence, his silence should be interpreted as a waiver
of said right to a speedy trial.
The issues boil down to (1) whether or not the prosecution of petitioner under the Information docketed as
Criminal Case No. Q-93-49988 would constitute double jeopardy, considering that when the Information in
Criminal Case No. Q-91-18037 was previously quashed, he had already been arraigned, and (2) whether or not
petitioner’s constitutional right to a speedy disposition of his case has been violated.
With regard to the first issue, we are in accord with the ruling of the CA that not all the elements for double
jeopardy exist in the case at bench. In People vs. Tac-An,6 we enumerated the elements that must exist for
double jeopardy to be invoked, to wit:
Thus, apparently, to raise the defense of double jeopardy, three requisites must be present: (1) a first
jeopardy must have attached prior to the second; (2) the first jeopardy must have been validly
terminated; and (3) the second jeopardy must be for the same offense as that in the first.
Legal jeopardy attaches only (a) upon a valid indictment, (b) before a competent court, (c) after arraignment,
(d) a valid plea having been entered; and (e) the case was dismissed or otherwise terminated without the
express consent of the accused (People vs. Ylagan, 58 Phil. 851).
Was the duplicitous information a valid indictment? We answer in the affirmative. In People vs. Bugayong,7 we
ruled that when an appellant fails to file a motion to quash within the time prescribed under Section 1, Rule 117
of the Rules of Court, he is thus deemed to have waived the defect in the Information. In People vs.
Manalili,8 we held that an accused, who fails to object prior to arraignment to a duplicitous information, may be
found guilty of any or all of the crimes alleged therein and duly proven during the trial, for the allegation of the
elements of such component crimes in the said information has satisfied the constitutional guarantee that an
accused be informed of the nature of the offense with which he or she is being charged. Verily, a duplicitous
information is valid since such defect may be waived and the accused, because of such waiver, could be
convicted of as many offenses as those charged in the information and proved during trial.
The validity of the information having been
established, we go on to examine whether the other
requisites for double jeopardy to attach are present. In
the present case, although there was a valid
indictment before a competent court and petitioner, as
the accused, had already been arraigned therein,
entering a valid plea of not guilty, the last requisite
that the case was dismissed or otherwise terminated
without his express consent, is not present.
It should be noted that the termination of Criminal
Case No. Q-91-18037 was upon motion of petitioner
who, on April 1, 1991, filed with the court an Urgent
Motion to Quash which was granted by Resolution
dated August 23, 1991. In Sta. Rita vs. Court of
Appeals,9 we held that the reinstatement of criminal
cases against the accused did not violate his right
against double jeopardy since the dismissal of the
information by the trial court had been effected at his
own instance when the accused filed a motion to
dismiss on the grounds that the facts charged do not
constitute an offense and that the RTC had no
jurisdiction over the case. In this case, considering
that since the dismissal of the previous criminal case
against petitioner was by reason of his motion for the
quashal of the information, petitioner is thus deemed
to have expressly given his consent to such
dismissal. There could then be no double jeopardy in
this case since one of the requisites therefore, i.e.,
that the dismissal be without accused’s express
consent, is not present.
As to whether the subsequent filing of the two informations docketed as Q-93-49988 and Q-93-49989
constitutes a violation of petitioner’s constitutional right to a speedy disposition of cases, 10 we rule in the
negative. We are not convinced by the OSG’s assertion that the cases of Tatad vs.
Sandiganbayan11 or Angchangco, Jr. vs. Ombudsman,12 are applicable to the case before us. We see
differently. There is no factual similarity between this case before us and the cases of Tatad and Angchangco.
In the Tatad case, there was a hiatus in the proceedings between the termination of the proceedings before the
investigating fiscal on October 25, 1982 and its resolution on April 17, 1985. The Court found that "political
motivations played a vital role in activating and propelling the prosecutorial process"13 against then Secretary
Francisco S. Tatad. In the Angchangco case, the criminal complaints remained pending in the Office of the
Ombudsman for more than six years despite the respondent’s numerous motions for early resolution and the
respondent, who had been retired, was being unreasonably deprived of the fruits of his retirement because of
the still unresolved criminal complaints against him. In both cases, we ruled that the period of time that elapsed
for the resolution of the cases against the petitioners therein was deemed a violation of the accused’s right to a
speedy disposition of cases against them.
In the present case, no proof was presented to show any persecution of the accused, political or otherwise,
unlike in the Tatad case. There is no showing that petitioner was made to endure any vexatious process during
the two-year period before the filing of the proper informations, unlike in the Angchangco case where petitioner
therein was deprived of his retirement benefits for an unreasonably long time. Thus, the circumstances present
in the Tatad and Angchangco cases justifying the "radical relief" granted by us in said cases are not existent in
the present case.
We emphasize our ruling in Ty-Dazo vs. Sandiganbayan14 where we held that:
The right to a speedy disposition of cases, like the right to a speedy trial, is deemed violated only when
the proceedings is attended by vexatious, capricious, and oppressive delays; or when unjustified
postponements of the trial are asked for and secured, or when without cause or unjustifiable motive, a
long period of time is allowed to elapse without the party having his case tried. In the determination of
whether or not that right has been violated, the factors that may be considered and balanced are: the
length of the delay the reasons for such delay, the assertion or failure to assert such right by the
accused, and the prejudice caused by the delay.
A mere mathematical reckoning of the time involved, therefore, would not be sufficient. In the
application of the constitutional guarantee of the right to speedy disposition of cases, particular regard
must also be taken of the facts and circumstances peculiar to each case. (Emphasis supplied)
Thus, we shall examine how such aforementioned factors affected herein petitioner’s right.
As to the length of delay, it is established that the prosecution did not take any action on petitioner’s case for
two years. From the time that Criminal Case No. Q-91-18037 was dismissed on August 23, 1991, the
prosecution failed to effect the very simple remedy of filing two separate informations against petitioner until
October of 1993. Indeed, there was a delay in the refiling of the proper informations. However, the prosecution
was never given the opportunity to explain the circumstances that may have caused such delay precisely
because petitioner never raised the issue of the length of time it took the prosecution to revive the case. There
is nothing on record to show what happened during the two-year lull before the filing of the proper informations.
Hence, it could not be ascertained that peculiar situations existed to prove that the delay was vexatious,
capricious and oppressive, and therefore, a violation of petitioner’s constitutional right to speedy disposition of
cases.
What the records clearly show is that petitioner never asserted his right to a speedy disposition of his case. The
only ground he raised in assailing the subsequent filing of the two informations is that he will be subjected to
double jeopardy. It was only the OSG that brought to light the issue on petitioner’s right to a speedy disposition
of his case, and only when the case was brought to the appellate court on certiorari. Even in this petition before
us, petitioner did not raise the issue of his right to a speedy disposition of his case. Again, it was only the OSG
that presented such issue to us in the Brief for the State which was only then adopted by petitioner through a
Manifestation dated August 3, 1999. We are not convinced that the filing of the informations against petitioner
after two years was an unreasonable delay. Petitioner himself did not really believe that there was any violation
of his right to a speedy disposition of the case against him.
The case which is more in point with the present one before us is Dela Peña vs. Sandiganbayan15 where we
ruled that petitioner therein, for failing to assert their right to a speedy disposition of their cases, was deemed to
have waived such right and thus, not entitled to the "radical relief" granted by the Court in the cases
of Tatad and Angchangco. The factual circumstances surrounding herein petitioner’s case do not demonstrate
that there was any violation of petitioner’s right to a speedy disposition of his case.
WHEREFORE, the petition is hereby DENIED for lack of merit. The temporary restraining order issued
pursuant to our Resolution dated January 17, 2000 is hereby LIFTED and the Regional Trial Court of Quezon
City (Branch 227) is hereby ORDERED to proceed with dispatch with petitioner’s arraignment in Criminal Case
No. Q-93-49988.
SO ORDERED.
Puno*, Quisumbing**, Callejo, Sr., and Tinga, JJ., concur.
Footnotes

There was a valid information for two counts of rape over which the
RTC had jurisdiction and to which the accused-appellant entered a
plea of not guilty. After the trial, a judgment of acquittal was
thereafter rendered and promulgated on July 25, 2011. What is
peculiar in this case is that a judgment of acquittal was rendered
based on the mistaken notion that the private complainant failed to
testify; allegedly because of the mix-up of orders with a different
case involving the same accused-appellant. This, however, does
not change the fact that a judgment of acquittal had already been
promulgated. Indeed, a judgment of acquittal, whether ordered by
the trial or the appellate court, is final, unappealable, and
immediately executory upon its promulgation.22 The rule on double
jeopardy, however, is not without exceptions, which are: (1) Where
there has been deprivation of due process and where there is a
finding of a mistrial, or (2) Where there has been a grave abuse of
discretion under exceptional circumstances. We find that these
exceptions do not exist in this case.23 Here, there was no
deprivation of due process or mistrial because the records show
that the prosecution was actually able to present their case and
their witnesses.
FIRST DIVISION

January 11, 2018

G.R. No. 223099

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee

vs.
LINO ALEJANDRO y PIMENTEL, Accused-Appellant

DECISION

TIJAM, J.:

This is an appeal from the Decision1 dated February 1 7, 2015 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No.
05256, which affirmed the July 26, 2011 Joint Decision2 rendered by the Regional Trial Court (RTC) of Cauayan City,
Isabela, Branch 20 in Criminal Case Nos. Br. 20-6096 & 20-6097, finding accused-appellant Lino Alejandro yPimentel
guilty beyond reasonable doubt of two counts of rape.

Accused-appellant was charged with two counts of rape, defined and penalized under Article 266-A, paragraph 1(a)
of the Revised Penal Code, in relation to Republic Act No. 8369 3 , of a 12-year old minor, AAA.4 Upon arraignment,
accused-appellant entered a plea of not guilty and trial ensued.
During trial, AAA testified that accused-appellant followed her, grabbed her, and brought her to the back of a school.
There, accused-appellant removed AAA's shorts and t-shirt, laid on top of her, and inserted his penis into her vagina. 5

Two months later, accused-appellant went inside AAA's house through a window one night, undressed himself and
AAA, and inserted his penis inside her vagina. On both occasions, accused-appellant threatened to kill AAA if she
told anybody what had happened.6

AAA eventually told her mother, BBB, about the incident. BBB brought her to the Municipal Health Office where she
was examined by Dr. CCC. Dr. CCC testified that she found, among others, deep, healed, old and superficial
lacerations in the hymen of AAA and concluded that these indicated positive sexual intercourse. 7

Accused-appellant, through his counsel, manifested in open court that he would no longer present any evidence for
the defense and submitted the case for decision.8

On July 26, 2011, the RTC promulgated a Decision acquitting the accused-appellant. On the same day, however, the
RTC recalled the said decision and issued an Order, stating:

Upon manifestation of Assistant Provincial Prosecutor Roderick Cruz that there were Orders that were inadvertently
placed in the record of Criminal Case No. Br. 20-4979 involving the same accused but different private complainant-
victim, XXX, which if considered will result in a different verdict. The Order dated September 24, 2007, showed that
private complainant-victim, AAA, in the above[-]quoted cases, Crim. Case No. Br-20-6096 & 6097, has actually
testified in Court.

WHEREFORE, to rectify the error committed and in order to prevent the miscarriage of justice, the Decision
promulgated today acquitting the accused is hereby RECALLED and SET ASIDE. SO ORDERED. 9

Accused-appellant filed a Motion for Reconsideration10 arguing that a judgment of acquittal is immediately final and
executory and can neither be withdrawn nor modified, because to do so would place an accused-appellant in double
jeopardy.

The RTC denied the motion in an Order11 dated July 26, 2011, explaining its denial, thus:

Admittedly, the Court erroneously declared in its Decision that private complainant AAA did not testify in Court. When
in truth and in fact said private complainant took the witness stand on September 3, 2008 as evidenced by the Order
dated September 3, 2008 which was mistakenly captioned as Crim. Case No. 4979 instead of Crim. Cases Nos. Br.
20- 6096 & 6097 and as a result thereof, the Order dated September 3, 2008 was erroneously attached by the Court
employee to the records of another criminal case entitled People of the Philippines versus Lino Alejandro, wherein
the private complainant is a certain xxx.

Section 14, Article 8 of the 1997 Constitution requires that the Decision should be based on facts and the law. The
Court believes and so holds that the Decision contravenes the highest law of the land because it is not in accordance
with the law and the facts, and therefore, the judgment of acquittal is invalid. As dispenser of truth and justice, the
Court should be candid enough to admit its error and rectify itself with dispatch to avoid grave miscarriage of justice. 12

A Joint Decision13 dated July 26, 2011 was rendered by the RTC, finding accused-appellant guilty of two counts of
rape and disposed as follows:

WHEREFORE, finding the accused LINO ALEJANDRO y PIMENTEL guilty beyond reasonable doubt of two (2)
counts of Simple Rape as defined and penalized under Article 266-A paragraph (D) of the Revised Penal Code, as
amended by Republic Act 8353, he is hereby sentenced to suffer, in each count, the penalty of reclusion
perpetua and to indentify the victim, minor AAA in the amount of FIFTY THOUSAND PESOS (₱50,000.00) and
FIFTY THOUSAND PESOS (₱50,000.00) as moral damages for each count.

Costs to be paid by the accused.

SO ORDERED.14
Accused-appellant appealed to the CA, contending that the R TC gravely erred in recalling its previously promulgated
decision acquitting the accused-appellant; and for convicting the accused-appellant despite the prosecution's failure
to prove his guilt beyond reasonable doubt.15

The Office of the Solicitor General (OSG) countered that there was no error in the recall of the acquittal. It
ratiocinated that the public prosecutor's manifestation was filed on the same day of the promulgation of the recalled
decision, pointing out that AAA actually testified during the trial and her testimony, if considered, would result in a
different verdict. The OSG stressed that what was proscribed under the double jeopardy clause was the filing of an
appeal to allow the prosecutor to seek a second trier of facts of defendant's guilt after having failed with the first. 16

The CA dismissed the appeal and held that the RTC's Order of recalling and setting aside the judgment of acquittal
was justified. It found that:

The initial decision of the RTC acquitting the accused failed to express clearly and distinctly the facts of the case, as
the records on which the acquittal was based was incomplete and inaccurate. Judges are expected to make complete
findings of facts in their decisions, and scrutinize closely the legal aspects of the case in the light of the evidence
presented. Obviously, with the unintentional exclusion of the testimony of the private complainant from the records of
the two criminal cases, the RTC could not have made complete findings of facts in the initial decision. The verdict of
acquittal had no factual basis. It was null and void, and should have necessarily been recalled and set aside. 17

The CA affirmed the conviction of accused-appellant and modified the award of damages, as follows:

WHEREFORE, premises considered, the appeal is hereby DISMISSED and the July 26, 2011 Joint Decision of the
Regional Trial Court of Cauayan City, Isabela, Branch 20, in Criminal Case Nos. Br. 20- 6096 and 20-6097, finding
Lino Alejandro y Pimentel guilty beyond reasonable doubt of two (2) counts of rape is AFFIRMED WITH
MODIFICATION, in that Alejandro is ordered to pay legal interest on the moral damages awarded to the victim at the
rate of six percent (6%) per annum from the date of finality of this decision until fully paid.

SO ORDERED.18

Hence, this petition for review.

Accused-appellant argues that despite the RTC's error and misapprehension of facts, it still had no power to rectify
such mistake as said acquittal had attained finality after valid promulgation. The error committed by the RTC cannot
be validly recalled without transgressing the accused-appellant's right against double jeopardy. He insists that not
only was the decision of acquittal final and executory, the manifestation of the public prosecutor, which was the
catalyst in having the decision recalled, was equivalent to a motion for reconsideration of the decision. He also points
out that the CA erred in sustaining the conviction for rape despite AAA's incredible testimony. 19

The OSG did not submit a supplemental brief and adopted its Appellee's Brief before the CA where it stated that the
recall of the earlier decision of the trial court, by reason of the manifestation filed by the public prosecutor, does not
actually result in double jeopardy. The OSG maintained that what is proscribed under the double jeopardy clause is
the filing of an appeal that would allow the prosecutor to seek a second trier of fact of defendant's guilt after having
failed with the first. It stressed that here, the OSG only manifested that the court overlooked a fact, which if not
considered, will result to a great injustice to the private complainant. It pressed that there was no double jeopardy
because there was no presentation of additional evidence to prove or strengthen the State's case.

The appeal has merit.

In our jurisdiction, We adhere to the finality-of-acquittal doctrine, that is, a judgment of acquittal is final and
unappealable.20

The 1987 Constitution guarantees the right of the accused against double jeopardy, thus:

Section 7, Rule 117 of the 1985 and 2000 Rules on Criminal Procedure strictly adhere to the constitutional
proscription against double jeopardy and provide for the requisites in order for double jeopardy to attach. For double
jeopardy to attach, the following elements must concur: (1) a valid information sufficient in form and substance to
sustain a conviction of the crime charged; (2) a court of competent jurisdiction; (3) the accused has been arraigned
and had pleaded; and (4) the accused was convicted or acquitted or the case was dismissed without his express
consent.21

There was a valid information for two

Here, all the elements were present.

counts of rape over which the RTC had jurisdiction

and to which the accused-appellant entered a plea of
not guilty. After the trial, a judgment of acquittal was
thereafter rendered and promulgated on July 25, 2011.
What is peculiar in this case is that a judgment of
acquittal was rendered based on the mistaken notion
that the private complainant failed to testify; allegedly
because of the mix-up of orders with a different case
involving the same accused-appellant. This, however,
does not change the fact that a judgment of acquittal
had already been promulgated. Indeed, a judgment of
acquittal, whether ordered by the trial or the appellate
court, is final, unappealable, and immediately
executory upon its promulgation.22
The rule on double jeopardy, however, is not without
exceptions, which are: (1) Where there has been
deprivation of due process and where there is a
finding of a mistrial, or (2) Where there has been a
grave abuse of discretion under exceptional
circumstances. We find that these exceptions do not
exist in this case.23 Here, there was no deprivation of
due process or mistrial because the records show that
the prosecution was actually able to present their
case and their witnesses.
A mere manifestation also will not suffice in assailing a judgment of acquittal. A petition for certiorari under Rule 65 of
the Rules should have been filed. A judgment of acquittal may only be assailed in a petition for certiorari under Rule
65 of the Rules. If the petition, regardless of its nomenclature, merely calls for an ordinary review of the findings of the
court a quo, the constitutional right of the accused against double jeopardy would be violated. 24

In People v. Laguio, Jr., 25 this Court stated that the only instance when double jeopardy will not attach is when the
RTC acted with grave abuse of discretion, thus:

x x x The only instance when double jeopardy will not attach is when the trial court acted with grave abuse of
discretion amounting to lack or excess of jurisdiction, such as where the prosecution was denied the opportunity to
present its case or where the trial was a sham. However, while certiorari may be availed of to correct an erroneous
acquittal, the petitioner in such an extraordinary proceeding must clearly demonstrate that the trial court blatantly
abused its authority to a point so grave as to deprive it of its very power to dispense justice.26

In this case, the acquittal was not even questioned on the basis of grave abuse of discretion. It was only through a
supposed mere manifestation of the prosecutor, a copy of which was not in the records, that the RTC was apprised of
the supposed mistake it committed.

A similar instance had been ruled upon by this Court in Argel v. Judge Pascua, 27 where the Judge was sanctioned
for gross ignorance of the law for recalling a judgment of acquittal, thus:

As stated earlier, complainant was accused of murder in Crim. Case No. 2999-V of the RTC of Vigan, Ilocos Sur. On
13 August 1993 judgment was promulgated acquitting him on the ground that there was no witness who positively
identified him as the perpetrator of the crime. However after respondent's attention was called by the private
complainant's counsel to the fact that there was such a witness and confirmed by respondent upon re-reading her
notes, she issued an Order dated 16 August 1993 stating her intention to "revise" the previous judgment of acquittal,
branded the same as "uncalled for" and "not final," and reset the case for another "rendering of the decision." The
reason given was that the judgment of acquittal was rendered without all the facts and circumstances being brought
to her attention.

Respondent Judge explained that the transcript of stenographic notes of the testimony of eyewitness Tito Retreta
was not attached to the records when she wrote her decision. Thus, in a Decision dated 19 August 1993, respondent
Judge declared herein complainant Miguel Argel guilty beyond reasonable doubt of murder on the basis of the
eyewitness account of Tito Retreta, sentenced complainant Argel to seventeen (17) years, four (4) months and one
(1) day of reclusion temporal to reclusion perpetua, and to pay the heirs of the victim ₱50,000.00 as civil indemnity
and ₱60,000.00 for actual damages.

Too elementary is the rule that a decision once final is no longer susceptible to amendment or alteration except to
correct errors which are clerical in· nature, to clarify any ambiguity caused by an omission or mistake in the
dispositive portion or to rectify a travesty of justice brought about by a moro-moro or mock trial.1âwphi1 A final
decision is the law of the case and is immutable and unalterable regardless of any claim of error or incorrectness.

In criminal cases, a judgment of acquittal is immediately final upon its promulgation. It cannot be recalled for
correction or amendment except in the cases already mentioned nor withdrawn by another order reconsidering the
dismissal of the case since the inherent power of a court to modify its order or decision does not extend to a judgment
of acquittal in a criminal case.

Complainant herein was already acquitted of murder by respondent in a decision promulgated on 13 August 1993.
Applying the aforestated rule, the decision became final and immutable on the same day. As a member of the bench
who is always admonished to be conversant with the latest legal and judicial developments, more so of elementary
rules, respondent should have known that she could no longer "revise" her decision of acquittal without violating not
only an elementary rule of procedure but also the constitutional proscription against double jeopardy. When the law is
so elementary, not to know it constitutes gross ignorance of the law. (Emphasis Ours)28

Similarly, in this case, the RTC was reminded of the fact that private complainant AAA testified during the trial, only
after it had already rendered and promulgated the judgment of acquittal. The R TC then realized that had AAA's
testimony been taken into account, the case would have had a different outcome. Consequently, the RTC issued an
Order recalling the judgment of acquittal for the purpose of rectifying its error, and thereafter, rendered a Decision
convicting the accused-appellant for two counts of rape. This, however, cannot be countenanced for a contrary ruling
would transgress the accused-appellant's constitutionally-enshrined right against double jeopardy.

WHEREFORE, the appeal is hereby GRANTED. The Decision dated February 17, 2015 of the Court of Appeals (CA)
in CA-G.R. CR-H.C. No. 05256, which affirmed the July 26, 2011 Joint Decision rendered by the Regional Trial Court
(RTC) of Cauayan City, Isabela, Branch 20 in Criminal Case Nos. Br. 20-6096 & 20-6097, finding accused-appellant
Lino. Alejandro y Pimentel guilty beyond reasonable doubt of two counts of rape, is hereby REVERSED and SET
ASIDE.

Accused-appellant Lino Alejandro y Pimentel is hereby ACQUITTED and is ordered immediately RELEASED from
custody, unless he is being held for another lawful cause.

Let a copy of this Decision be furnished to the Director of the Bureau of Corrections, Muntinlupa City for immediate
implementation, who is then also directed to report to this Court the action he has taken within five (5) days from
receipt of this Decision.

SO ORDERED.

NOEL GIMENEZ TIJAM

Associate Justice

WE CONCUR:

MARIA LOURDES P.A. SERENO

Chief Justice
Chairperson

TERESITA J. LEONARDO-DE CASTRO DIOSDADO M. PERALTA

Associate Justice Associate Justice

MARIANO C. DEL CASTILLO

Associate Justice

CERTIFICATION

Pursuant to the Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had
been reached in consultation before the case was assigned to the writer of the opinion of the Court's Division.

MARIA LOURDES P.A. SERENO

Chief Justice

Footnotes

*Designated as additional Member as per Raffle dated June 28, 2017.

 1
Penned by Associate Justice Ramon A. Cruz, and concurred in by Associate Justices Remedios A.
Salazar-Fernando and Eduardo B. Peralta, Jr., rollo, pp. 2-12.

2 Penned by Judge Reymundo L. Aumentado, CA rollo, pp. 16-23.

3 Otherwise known as the "Family Courts Act of 1997".

4 Pursuant to People v. Cabalquinto, 533 Phil. 703 (2006), the real name and personal circumstances of the
victim, and any other information tending to establish or compromise her identity,· including those of her
immediate family or household members, are not disclosed.

5 Id.
6 Id. at 3-4.
7 Id. at 4.

8 Id.
9 Original Records, p. 40.
10 CA rollo, p. 79-80.
11 Id. at 82.

12 Id.
13 Id. at 83-90.
14 Id. at 90.
15 Id. at 64.
16 Id. at 113-114.
17 Id. at 130.

18 Id. at 134.
19 Rollo, pp. 35-36.
20 People v. Hon. Asis, et al., 643 Phil. 462, 469 (2010).
21 Chiokv. People, et al., 774 Phil. 230, 247-248 (2015).
22 Villareal v. Aliga, 724 Phil. 47, 62 (2014).

23 Id. at 64.
24 Id. at 60.

25 547 Phil. 296 (2007).

26 Id. at 315.

27 415 Phil. 608 (2001).

28 Id. at 611-612.

By rsb at September 04, 2019

Email ThisBlogThis!Share to TwitterShare to FacebookShare to Pinterest

No comments:
Post a Comment

Links to this post

Create a Link

Newer PostOlder PostHome

Subscribe to: Post Comments (Atom)

Beginning with Sarmiento v. COMELEC6 and reiterated in subsequent

cases,7 the most recent being Balindong v. COMELEC,8 the Court has
upheld this constitutional mandate and consistently ruled that the
COMELEC sitting en banc does not have the requisite authority to hear
and decide election cases in the first instance. This power pertains to
the divisions of the Commission and any decision by the Commission
en banc as regards election cases decided by it in the first instance is
null and void for lack of jurisdiction. It is important to clarify, however,
that not all cases relating to election laws filed before the COMELEC are
required to be first heard by a division. Under the Constitution, the
COMELEC exercises both administrative and quasi-judicial powers. The
COMELEC en banc can act directly on matters falling within its
administrative powers.1a\^/phi1.net It is only when the exercise of quasi-
judicial powers are involved that the COMELEC is mandated to decide
cases first in division, and then, upon motion for reconsideration, en
banc.9

the Court has categorically ruled that since the preliminary

investigation stage is not part of the trial, the dismissal of a case
during preliminary investigation would not put the accused in
danger of double jeopardy in the event of a re-investigation or the
filing of a similar case. An investigating body is not bound by the
findings or resolution of another such office, tribunal or agency
which may have had before it a different or incomplete set of
evidence than what had been presented during the previous
investigation.13 Therefore, petitioner's indictment pursuant to the
findings of the Office of the City Prosecutor, and his eventual
conviction for the crime of grave threats, has not placed him in
double jeopardy.
THIRD DIVISION
G.R. No. 183681 July 27, 2015
SPO2 ROLANDO JAMACA, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
PERALTA, J.:
This resolves the petition for review on certiorari seeking the reversal of the Decision 1 of the Court of Appeals (CA)
promulgated on May 26, 2004 and the Resolution2 dated June 19, 2008 in CA G.R. CR No. 23887. The CA affirmed
the judgment of the Regional Trial Court of Cagayan de Oro City (RTC), finding petitioner SP02 Ro1ando Jamaca
guilty beyond reasonable doubt of Grave Threats in Criminal Case No. 97-1598.
The antecedent facts are as follows:
Private complainant Atty. Emilie Bangot filed a complaint for Grave Threats against petitioner with the Office of the
Deputy Ombudsman for the Military, docketed as OMB-MIL-CRIM-97-0754. He likewise filed a similar complaint
before the Office of the City Prosecutor of Cagayan de Oro City.
In a Resolution3 dated January 26, 1998, the Office of the Deputy Ombudsman for the Military dismissed the
complaint on the ground that the accusation against petitioner was unfounded, based solely on the statement of one
Rustom Roxas that there were no threatening words uttered by petitioner. A petition for certiorari was filed with this
Court to assail said ruling of the Office of the Deputy Ombudsman for the Military, but the same was dismissed in a
Resolution dated July 29, 1998, which read, thus:
The petition [or] for certiorari is dismissed for utter lack of merit, having failed to comply with well nigh all the relevant
requisites laid down by law, prescinding from the obvious proposition that the Supreme Court does not review
findings and conclusions of investigators conducting a preliminary inquiry or investigation into charges of a crime. 4
On the other hand, private complainant's complaint before the Office of the City Prosecutor prospered and led to the
filing of an Information against petitioner. He was charged with grave threats defined and penalized under paragraph l
of Article 282 of the Revised Penal Code allegedly committed as follows:
That on [or] about July 22 1997 in the evening, at Kalambaguhan/Burgos Streets, Cagayan de Oro City, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill and moved by
personal resentment which he entertained against Atty. Emelie P. Bangot, Jr., did then and there willfully, unlawfully
and feloniously threaten the latter with the infliction upon him of a wrong amounting to a crime subject to a condition,
by threatening to kill the offended party thus uttering or shouting words in the presence of: and within the hearing
distance of Jay Jay R. Bangot (son of offended party) as follows, to wit:
KUNG MATANGTANG AKO SA TRABAHO,
BUAKON KO ANG ULO NI ATTY. BAN GOT ...
which means in English: "If I will loss my work I will break the head of Atty. Ban got ... ", or words of similar import,
directed to the said offended party, Atty. Emelie P. Bangot, Jr., without however attaining accused's purpose, thereby
casting fear upon offended party's person and endangering his life.
Contrary to and in violation of Art. 282, paragraph 1, of the Revised Penal Code. 5
Upon arraignment, petitioner pleaded not guilty and trial then ensued. The prosecution presented three witnesses,
including the son of private complainant, who all testified that while petitioner was at the house of Rustom Roxas,
they all heard petitioner utter words threatening to cause private complainant Atty. Bangot grave bodily harm. On the
other hand, petitioner insisted that he went to the house of Rustom Roxas, a relative by affinity of Atty. Bangot, to ask
Rustom Roxas to mediate and reconcile him (petitioner) with Atty. Bangot. Petitioner denied that he ever mentioned
any threatening words against Atty. Bangot. Elisea Jamaca, petitioner's wife, corroborated petitioner's testimony. The
prosecution then presented Phoebe Roxas, the wife of Rustom Roxas, as rebuttal witness. She testified that she was
in the very same room and clearly heard petitioner utter words to the effect that if he (petitioner) loses his job, he will
break the head of Atty. Bangot. She also said that Jay Bangot, the son of private complainant, was also there in their
house, sitting only about two and a half meters away from petitioner, when petitioner made the threats against Atty.
Bangot.
The trial court, ascribing greater credibility to the testimony of each of the prosecution witnesses, ruled that the
evidence clearly established the guilt of petitioner. The dispositive portion of the RTC Decision reads as follows:
WHEREFORE, premises considered, judgment is hereby rendered finding accused SP02 Rolando Jamaca guilty
beyond reasonable doubt as principal of the offense of GRAVE THREATS defined and punishable under paragraph 2
of Art. 282 of the Revised Penal Code without attendance of any aggravating or mitigating circumstances.
Consequently, pursuant to said law, he is hereby sentenced with the accessories of the law as provided by Art. 44 of
the Revised Penal Code, to an imprisonment of two (2) months and one (1) day to be served at the City Jail,
Cagayan de Oro City and to pay a fine in the sum of Five Hundred Pesos (₱500.00) with subsidiary imprisonment in
case of insolvency computed at the rate of one (1) day for each eight pesos but in no case will it exceed one-third of
the term of the sentence.
No pronouncement as to the credit of preventive imprisonment since accused immediately put up a bond for his
temporary liberty without waiting for his arrest.
SO ORDERED.6
The trial court's Decision was appealed to the CA and, on May 26, 2004, the CA promulgated a Decision affirming in
toto petitioner's conviction for the crime of Grave Threats. Petitioner's motion for reconsideration was denied by the
CA per Resolution dated June 19, 2008.
Petitioner then filed his Petition for Review on Certiorari and a Supplemental Petition for Review on Certiorari with this
Court. The only issue presented in the original petition is whether the CA should have dismissed the petition outright
and ruled that the RTC had no jurisdiction to take cognizance of the case because private complainant was guilty of
forum shopping, having filed similar complaints before both the Office of the Deputy Ombudsman and the Office of
the City Prosecutor. Subsequently, in his Supplemental Petition, petitioner raised additional issues, to wit:
I
RESPONDENT COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN NOT APPLYING THE DOCTRINE
OF RES JUDICATA AS THE CONVICTION OF THE ACCUSED PETITIONER FOR THE CRIME OF GRAVE
THREATS BY THE TRIAL COURT HAD LONG BEEN DISMISSED BY THE OMBUDSMAN FOR THE MILITARY IN
ITS RESOLUTION OF JANUARY 26, 1998 FOR EXACTLY THE SAME CRIME, WHICH WAS UPHELD BY THIS
HONORABLE COURT IN G.R. NO. 134664 WHEN IT DISMISSED A PETITION FOR CERTIORARI OF SUCH
DISMISSAL AND THAT ENTRY OF JUDGMENT HAD BEEN MADE ON DECEMBER 1, 1998, HENCE, IF THIS
ERRONEOUS CONVICTION IS NOT REVERSED IN THIS PETITION FOR REVIEW THE SAME WOULD [BE]
TANTAMOUNT TO VIOLATING THE CONSTITUTIONAL RIGHTS OF THE ACCUSED AGAINST DOUBLE
JEOPARDY.
II
THE COURT OF APPEALS ERRED IN NOT HOLDING THAT THE INFORMATION FILED BY THE OFFICE OF THE
CITY PROSECUTOR OF CAGAYAN DE ORO IS NULL AND VOID FROM THE VERY BEGINNING FOR LACK OF
JURISDICTION AS THE OFFICE OF THE DEPUTY OMBUDSMAN FOR THE MILITARY HAD ALREADY
DISMISSED THE CASE AFTER IT TOOK COGNIZANCE OF THE SAME, THE PETITIONER BEING A POLICE
OFFICER.
III
THE COURT OF APPEALS ERRED IN NOT HOLDING THAT THERE WAS NO GRAVE THREATS BECAUSE THE
ALLEGATIONS IN THE COMPLAINT ARE MERELYHEARSAY.7 The petition is bereft of merit.
It should be borne in mind that for a claim of double jeopardy to prosper, petitioner has to prove that a first jeopardy
has attached prior to the second. As stated in Braza v. Sandiganbayan, 8 "[t]he first jeopardy attaches only (a) after a
valid indictment; (b) before a competent court; ( c ) after arraignment; (d) when a valid plea has been entered; and (
e) when the accused was acquitted or convicted, or the case was dismissed or otherwise terminated without his
express consent."9 In this case, the complaint before the Office of the Deputy Ombudsman for the Military was
dismissed as early as the preliminary investigation stage, thus, there was as yet, no indictment to speak of. No
complaint or Information has been brought before a competent court. Hence, none of the aforementioned events has
transpired for the first jeopardy to have attached.
In Vincoy v. Court of Appeals,10 which is closely analogous to the present case, the private complainant therein
initially filed a complaint with the Office of the City Prosecutor of Pasay City, but said office dismissed the complaint.
Private complainant then re-filed the complaint with the Office of the City Prosecutor of Pasig City. The Office of the
Prosecutor of Pasig City found probable cause and filed the Information against the accused therein. In said case, the
Court categorically held that:
The dismissal of a similar complaint x x x filed by [private complainant] before the City Prosecutor's Office of Pasay
City will not exculpate the petitioner. The case cannot bar petitioner's prosecution. It is settled that the dismissal of a
case during its preliminary investigation does not constitute double jeopardy since a preliminary investigation is not
part of the trial and is not the occasion for the full and exhaustive display of the parties' evidence but only such as
may engender a well-grounded belief that an offense has been committed and accused is probably guilty thereof. For
this reason, it cannot be considered equivalent to a judicial pronouncement of acquital. 11

the Court has

The fore going ruling was reiterated in Trinidad v. Office of the Ombudsman, 12 where

categorically ruled that since the preliminary

investigation stage is not part of the trial, the
dismissal of a case during preliminary investigation
would not put the accused in danger of double
jeopardy in the event of a re-investigation or the filing
of a similar case. An investigating body is not bound
by the findings or resolution of another such office,
tribunal or agency which may have had before it a
different or incomplete set of evidence than what had
been presented during the previous
investigation.13 Therefore, petitioner's indictment
pursuant to the findings of the Office of the City
Prosecutor, and his eventual conviction for the crime
of grave threats, has not placed him in double
jeopardy.
As to petitioner's argument that the information filed by the Office of the City Prosecutor is null and void for lack of
jurisdiction as the Office of the Deputy Ombudsman for the Military had already dismissed the case, the same is
likewise tenuous. In Flores v. Montemayor,14 the Court clarified that the Ombudsman's jurisdiction to investigate
public officers and employees as defined under Section 15 of R.A. No. 6770 is not exclusive, and explained, thus:
This power of investigation granted to the Ombudsman by the 1987 Constitution and The Ombudsman Act is not
exclusive but is shared with other similarly authorized government agencies, such as the PCGG and judges of
municipal trial courts and municipal circuit trial courts. The power to conduct preliminary investigation on charges
against public employees and officials is likewise concurrently shared with the Department of Justice. Despite the
passage of the Local Government Code in 1991, the Ombudsman retains concurrent jurisdiction with the Office of the
President and the local Sanggunians to investigate complaints against local elective officials. 15
Petitioner's argument that the CA should have dismissed the petition outright because private complainant committed
forum shopping by filing similar complaints with the Office of the Ombudsman for the Military and the Office of the
City Prosecutor, should not be given consideration. The Court stated in De Guzman v. Ochoa, 16 that failure to comply
with the requirements on the rule against forum shopping is not a ground for the motu proprio dismissal of the
complaint because the rules are clear that said issue shall cause the dismissal of the case only upon motion and after
hearing.17 More importantly, as the Court held in S. C. Megaworld Construction and Development Corporation v.
Parada,18 to wit:
It is well-settled that no question will be ente1iaincd on appeal unless it has been raised in the proceedings below.
Points of law, theories, issues and arguments not brought to the attention of the lower court, administrative agency or
quasi-judicial body, need not be considered by a reviewing court, as they cannot be raised for the first time at that late
stage. Basic considerations of fairness and due process impel this rule. Any issue raised for the first time on appeal is
barred by estoppel.
xxxx
In Young v. John Keng Seng, it was also held that the question of forum shopping cannot be raised in the CA and in
the Supreme Court, since such an issue must be raised at the earliest opportunity in a motion to dismiss or a similar
pleading. The high court even warned that "[i]nvoking it in the later stages of the proceedings or on appeal may result
in the dismissal of the action x x x.19
With regard to the sufficiency of the evidence presented by the prosecution, the Court has time and again abided by
the principle that factual findings of the trial court, its assessment of the credibility of witnesses and the probative
weight of their testimonies, and the conclusions based on these factual findings are to be given the highest respect.
Thus, generally, the Court will not recalibrate and reexamine evidence that had been analyzed and ruled upon by the
trial court and affirmed by the CA. Moreover, the supposed inconsistencies of witnesses in recounting the wordings of
the threats uttered by petitioner, are much too trivial and inconsequential to put a dent on said witnesses' credibility.
As ruled in People v. Cabtalan,20 "[m]inor inconsistencies and discrepancies pertaining to trivial matters do not affect
the credibility of witnesses, as well as their positive identification of the accused as the perpetrators of the
crime."21 Both the trial court and the CA found the prosecution witnesses' candid and straightforward testimony to be
worthy of belief and this Court sees no reason why it should not conform to the principle reiterated in Medina, Jr. v.
People22 that:
Time and again, this Court has deferred to the trial court's factual findings and evaluation of the credibility of
witnesses, especially when affirmed by the CA, in the absence of any clear showing that the trial court overlooked or
misconstrued cogent facts and circumstances that would justify altering or revising such findings and evaluation. This
is because the trial court's determination proceeds from its first-hand opportunity to observe the demeanor of the
witnesses, their conduct and attitude under grilling examination, thereby placing the trial court in the unique position
to assess the witnesses' credibility and to appreciate their truthfulness, honesty and candor. 23 The records of this
case, particularly the testimonies of the witnesses, reveal no outstanding or exceptional circumstance to justify a
deviation from such long-standing principle. There is no cogent reason to overturn the courts' ruling that the
prosecution evidence, is worthy of belief. Thus, prosecution evidence established beyond any reasonable doubt that
petitioner is indeed guilty of grave threats.
WHEREFORE, the petition is DENIED, and the Decision of the Court of Appeals dated May 26, 2004 and the
Resolution dated June 19, 2008 in CA-GR. CR No. 23887 are AFFIRMED.
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice
WE CONCUR:
PRESBITERO J. VELASCO, JR.
Associate Justice
Chairperson
MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ*
Associate Justice Associate Justice
FRANCIS H. JARDELEZA
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to
the writer of the opinion of the Court's Division.
PRESBITERO J. VELASCO, JR.
Associate Justice
Chairperson, Third Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I ce1iify that the
conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the
opinion of the Court's Division.
ANTONIO T. CARPIO
Acting Chief Justice

WHAT IS A CONTENT-NEUTRAL REGULATION?

Justice Carpio and Justice Perlas-Bernabe suggest that
the provisions imposing a size limit for tarpaulins
are content-neutral regulations as these "restrict the
manner by which speech is relayed but not the content of
what is conveyed."248
If we apply the test for content-neutral regulation, the
questioned acts of COMELEC will not pass the three
requirements for evaluating such restraints on freedom of
speech.249 "When the speech restraints take the form
of a content-neutral regulation, only a substantial
governmental interest is required for its
validity,"250 and it is subject only to the intermediate
approach.251
This intermediate approach is based on the test that we
have prescribed in several cases.252
A content-neutral government regulation is sufficiently
justified:
[1] if it is within the constitutional power of the
Government; [2] if it furthers an important or
substantial governmental interest;
[3] if the governmental interest is unrelated to the
suppression of free expression; and
 [4] if the incident restriction on alleged [freedom of
speech & expression] is no greater than is essential to
the furtherance of that interest.253
On the first requisite, it is not within the constitutional
powers of the COMELEC to regulate the tarpaulin. As
discussed earlier, this is protected speech by petitioners
who are non-candidates. On the second requirement, not
only must the governmental interest be important or
substantial, it must also be compelling as to justify the
restrictions made.
Compelling governmental interest would include
constitutionally declared principles. We have held, for
example, that "the welfare of children and the State’s
mandate to protect and care for them, as parens
patriae,254 constitute a substantial and compelling
government interest in regulating . . . utterances in TV
broadcast."255

Courts martial are agencies of executive character, and one of the

authorities "for the ordering of courts martial has been held to be
attached to the constitutional functions of the President as
Commander in Chief, independently of legislation." (Winthrop's
Military Law and Precedents, 2d Edition, p. 49.) Unlike courts of
law, they are not a portion of the judiciary. "The Supreme Court of
the United States referring to the provisions of the Constitution
authorizing Congress to provide for the government of the army,
excepting military offenses from the civil jurisdiction, and making
the President Commander in Chief, observes as follows: "These
provisions show that Congress has the power to provide for the
trial and punishment of military and naval offenses in the manner
then and now practiced by civilized nations, and that the power to
do so is given without any connection between it and the 3d Article
of the United States; indeed that the two powers are entirely
independent of each other." "Not belonging to the judicial branch
of the government, it follows that courts-martial must pertain to the
executive department; and they are in fact simply instrumentalities
of the executive power, provided by Congress for the President as
Commander in Chief, to aid him in properly commanding the army
and navy and enforcing discipline therein, and utilized under his
orders or those of his authorized military representatives."
(Winthrop's Military Law and Precedents, 2d Edition, p. 49.) Of
equal interest Clode, 2 M. F., 361, says of these courts in the British
law: "It must never be lost sight of that the only legitimate object of
military tribunals is to aid the Crown to maintain the discipline and
government of the Army." (Footnote No. 24, p. 49, Winthrop's
Military Law and Precedents, 2d Edition.)
EN BANC
G.R. No. L-533 August 20, 1946
RAMON RUFFY, ET AL., petitioners,
vs.
THE CHIEF OF STAFF, PHILIPPINE ARMY, ET AL., respondents.
Placido C. Ramos for petitioners.
Lt. Col. Fred Ruiz Castro and Capt. Ramon V. Diaz, JAGS, PA., for respondents.
TUASON, J.:
This was a petition for prohibition, praying that the respondents, the Chief of Staff and the General Court
Martial of the Philippine Army, be commanded to desist from further proceedings in the trial of petitioners
before that body. Preliminary injunction having been denied by us and the General Court Martial having gone
ahead with the trial, which eventually resulted in the acquittal of one of the defendants, Ramon Ruffy, the
dismissal of the case as to another, Victoriano Dinglasan, and the conviction of Jose L. Garcia, Prudente M.
Francisco, Dominador Adeva and Andres Fortus, the last-named four petitioners now seek in their
memorandum to convert the petition into one for certiorari, with the prayer that the records of the proceedings
before the General Court Martial be ordered certified to this court for review.
The ground of the petition was that the petitioners were not subject to military law at the time the offense for
which they had been placed on trial was committed. In their memorandum they have raised an additional
question of law — that the 93d Article of War is unconstitutional.
An outline of the petitioner's previous connection with the Philippine Army, the Philippine Constabulary, and/or
with guerrilla organizations will presently be made. This outline is based on allegations in the petition and the
answer, and on exhibits attached thereto and to the parties' memoranda, exhibits which were offered in the
course of the oral argument and admitted without objection. The said exhibits are public documents certified by
the officials who had them in custody in their official capacity. They are presumed to be authentic, as we have
no doubt they are.
It appears that at the outbreak of war on December 8, 1941, Ramon Ruffy was the Provincial Commander,
Prudente M. Francisco, a junior officer, and Andres Fortus, a corporal, all of the Philippine Constabulary
garrison stationed in Mindoro. When, on February 27, 1942, the Japanese forces landed in Mindoro, Major
Ruffy retreated to the mountains instead of surrendering to the enemy, disbanded his company, and organized
and led a guerrilla outfit known as Bolo Combat team of Bolo Area. Lieutenant Francisco, Corporal Fortus and
Jose L. Garcia, the last then a civilian joined Major Ruffy's organization towards the latter part of 1942, while
Dominador Adeva and Victoriano Dinglasan, then likewise civilians, became its members some time in 1943..
Meanwhile, Brigadier General Macario Peralta, Jr., then a lieutenant colonel of the Philippine Army, also took to
the hills of Panay and led the operation of the 6th Military District, one of the districts into which the Philippine
Army had been divided before the war. About November, 1942, Colonel Peralta succeeded in contacting the
General Headquarters of General MacArthur in Australia as the result of which on February 13, 1943, the 6th
Military District was recognized by the Headquarters of the Southwest Pacific Area as a military unit and part of
its command.
Even before General MacArthur's recognition of the 6th Military District Colonel Peralta had extended its
sphere of operation to comprise Mindoro and Marinduque, and had, on January 2, 1943, named Major Ruffy as
Acting Commander for those two provinces and Commanding Officer of the 3rd Battalion, 66 Infantry 61st
Division, Philippine Corps. After the recognition, 2d Lieut. Prudente M. Francisco, by virtue of Special Orders
No. 99, dated November 2, 1943, and signed by Enrique L. Jurado, Major, OSE, Commanding, was assigned
as S-3 in the Bolo Area. Major, later Lieut. Col., Jurado, it should be noted, had been dispatched by the 6th
Military District to Mindoro to assume operational control supervision over the Bolo Area unit and to make and
direct the necessary report to the Headquarters, 6th Military District, in Panay. On April 26, 1944, by General
Orders No. 40 of the 6th Military District, 2d Lieutenant Francisco was promoted to the rank of 1st Lieutenant
(Brevet), effective April 15, 1944, subject to approval by the President of the Philippines, and was re-assigned
to the Bolo Area. As to Andres Fortus he was assigned to the same Bolo Area as probationary 3d lieutenant for
two-month probationary training, by the Headquarters of the 6th Military District, as per Special Orders No. 70,
dated May 15, 1944.
According to a memorandum of the Chief of Staff, 6th Military District, dated January 1943, and signed by L.R.
Relunia, Lieut. Col., CE, Chief of Staff, Jose L. Garcia and Dominador Adeva were appointed 3d lieutenants,
infantry as of December 31, 1942. Garcia later was promoted to the rank of captain, effective March 15, 1943,
as per Special Orders No. 82, issued in the field, 6th Military District, and dated August 28, 1943. On May 24,
1943, Jose L. Garcia took his oath before Captain Esteban P. Beloncio, then Acting Commanding Officer, 3d
Battalion, 66th Infantry Regiment, 61st Division, 6th Military District.
As has been said, the 6th Military District sent Lieut. Col. Enrique L. Jurado to be Commanding Officer of the
Bolo Combat Team in Mindoro and to undertake other missions of Military character. Pursuant to instructions,
Colonel Jurado on November 2, 1943, assigned Major Ruffy as Commanding Officer of the Bolo Area with 3d
Lieut. Dominador Adeva and 2d Lieut. Prudente M. Francisco as members of his staff and Victoriano Dinglasan
as Finance Officer, as per Special Orders No. 99 dated November 2, 1943. In a memorandum of Colonel
Jurado for Major Ruffy bearing date 25 June, 1944, it was stated that Captain Garcia had been given P5,000
for palay and Lieut. Francisco P9,000, P5,000 for palay and P4,000 for salary of the personnel B. Company.
A change in the command of the Bolo Area was effected by Colonel Jurado on June 8, 1944: Major Ruffy was
relieved of his assignment as Commanding Officer, Bolo Battalion, and Capt. Esteban P. Beloncio was put in
Ruffy's place. On October 19, 1944, Lieut. Col. Jurado was slain allegedly by the petitioners. After the
commission of this crime, the petitioners, it is alleged, seceded from the 6th Military District. It was this murder
which gave rise to petitioner's trial, the legality of which is now being contested.
On July 26, 1941, the President of the Untied States issued a military order the pertinent paragraph of which
stated: ". . . as Commander in Chief of the Army and Navy of the United States, I hereby call and order into the
service of the armed forces of the United States Army, for the period of the existing emergency, and place
under the command of the general officer, United States Army, to be designated by the Secretary of War, from
time to time, all of the organized military forces of the Government of the Commonwealth." Following the
issuance of President Roosevelt's order General Douglas MacArthur was appointed Commanding General of
the United States Armed Forces in the Far East.
It is contended, in behalf of Captain Francisco and Lieutenant Fortus, that "by the enemy occupation of the
Philippines, the National Defense Act and all laws and regulations creating and governing the existence of the
Philippine Army including the Articles of War, were suspended and in abeyance during such belligerent
occupation."
The paragraph quoted in the petitioner's memorandum from Winthrop's Military Law and Precedents and the
subsequent paragraph which has been omitted furnish a complete answer to petitioner's contention of the
Philippines by Japanese forces, the officers and men of the Philippine Army did not cease to be fully in the
service, though in a measure,' only in a measure, they were not subject to the military jurisdiction, if they were
not active duty. In the latter case, like officers and soldiers on leave of absence or held as prisoners of war,
they could not be held guilty of a breach of the discipline of the command or of a neglect of duty, or
disobedience of orders, or mutiny, or subject to a military trial therefor; but for an act unbecoming an officer and
a gentleman, or an act which constitutes an offense of the class specified in the 95th Article of War, they may in
general be legally held subject to military jurisdiction and trial. "So a prisoner of war, though not subject, while
held by the enemy, to the discipline of his own army, would, when exchanged of paroled, be not exempt from
liability for such offenses as criminal acts or injuriuos conduct committed during his captivity against other
officers or soldiers in the same status." (Winthrop's Military Law and Precedents, 2d Edition, pp. 91, 92.)
The rule invoked by counsel, namely, that laws of political nature or affecting political relations are considered
superseded or in abeyance during the military occupation, is intended for the governing of the civil inhabitants
of the occupied territory. It is not intended for and does not bind the enemies in arms. This is self-evident from
the very nature of things. The paradox of a contrary ruling should readily manifest itself. Under the petitioner's
theory the forces of resistance operating in an occupied territory would have to abide by the outlawing of their
own existence. They would be stripped of the very life-blood of an army, the right and the ability to maintain
order and discipline within the organization and to try the men guilty of breach thereof.
The surrender by General Wainright of the Fil-American Forces does not profit the petitioner's who were former
members of the Philippine Constabulary any more than does the rule of war or international law they cite. The
fall of Bataan and Corregidor did not end the war. It did not, legally or otherwise, keep the United States and
the Commonwealth of the Philippines from organizing a new army, regular or irregular, out of new men and
men in the old service who had refused to surrender or who having surrendered, had decided to carry on the
fight through other diverse means and methods. The fall of Corregidor and Bataan just marked the beginning of
the gigantic preparation for the gigantic drive that was to fight its way to and beyond the Philippines in
fulfillment of General MacArthur's classic promise, "I shall return." The heroic role which the guerrillas played in
that preparation and in the subsequent liberation of the Philippines is now history.
Independently of their previous connection with the Philippine Army and the Philippine Constabulary, Captain
Francisco and Lieutenant Fortus as well as Major Garcia and Lieutenant Adeva were subject to military
jurisdiction.
The 2d Article of War defines and enumerates the persons subject to military law as follows:
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, members of the Nurse Corps and soldiers belonging to the Regular Force of the
Philippine Army; all reservists, 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 order to
obey the same;
(b) Cadets, flying cadets, and probationary third lieutenants;
(c) All retainers to the camp and all persons accompanying or serving with the Army 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 sentences adjudged by courts-martial.
It is our opinion that the petitioners come within the general application of the clause in sub-paragraph (a); "and
all other persons lawfully called, drafted, or ordered into, or to duty 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." By their acceptance of
appointments as officers in the Bolo Area from the General Headquarters of the 6th Military District, they
became members of the Philippine Army amendable to the Articles of War. The Bolo Area, as has been seen,
was a contigent of the 6th Military District which, as has also been pointed out, had been recognized by and
placed under the operational control of the United States Army in the Southwest Pacific. The Bolo Area
received supplies and funds for the salaries of its officers and men from the Southwest Pacific Command. As
officers in the Bolo Area and the 6th Military District, the petitioners operated under the orders of duly
established and duly appointed commanders of the United States Army.
The attitude of the enemy toward underground movements did not affect the military status of guerrillas who
had been called into the service of the Philippine Army. If the invaders refused to look upon guerrillas, without
distinctions, as legitimate troops, that did not stop the guerillas who had been inducted into the service of the
Philippine Army from being component parts thereof, bound to obey military status of guerrillas was to be
judged not by the concept of the army of the country for which they fought.
The constitutionality of the 93d Article of War is assailed. This article ordains "that any person subject to
military law who commits murder in time of was shall suffer death or imprisonment for life, as the court martial
may direct." It is argued that since "no review is provided by that law to be made by the Supreme Court,
irrespective of whether the punishment is for life imprisonment or death", it violates Article VIII, section 2,
paragraph 4, of the Constitution of the Philippines which provides that "the National Assembly may not deprive
the Supreme Court of its original jurisdiction over all criminal cases in which the penalty imposed is death or life
imprisonment."
We think the petitioners are in error. This error arose from failure to perceive the nature of courts martial and
the sources of the authority for their creation.
Courts martial are agencies of executive character,
and one of the authorities "for the ordering of courts
martial has been held to be attached to the
constitutional functions of the President as
Commander in Chief, independently of legislation."
(Winthrop's Military Law and Precedents, 2d Edition,
p. 49.) Unlike courts of law, they are not a portion of
the judiciary. "The Supreme Court of the United States
referring to the provisions of the Constitution
authorizing Congress to provide for the government
of the army, excepting military offenses from the civil
jurisdiction, and making the President Commander in
Chief, observes as follows: "These provisions show
that Congress has the power to provide for the trial
and punishment of military and naval offenses in the
manner then and now practiced by civilized nations,
and that the power to do so is given without any
connection between it and the 3d Article of the United
States; indeed that the two powers are entirely
independent of each other."
"Not belonging to the judicial branch of the
government, it follows that courts-martial must pertain
to the executive department; and they are in fact
simply instrumentalities of the executive power,
provided by Congress for the President as
Commander in Chief, to aid him in properly
commanding the army and navy and enforcing
discipline therein, and utilized under his orders or
those of his authorized military representatives."
(Winthrop's Military Law and Precedents, 2d Edition,
p. 49.) Of equal interest Clode, 2 M. F., 361, says of
these courts in the British law: "It must never be lost
sight of that the only legitimate object of military
tribunals is to aid the Crown to maintain the discipline
and government of the Army." (Footnote No. 24, p. 49,
Winthrop's Military Law and Precedents, 2d Edition.)
Our conclusion, therefore, is that the petition has no merit and that it should be dismissed with costs. It is so
ordered.
Moran, C.J., Paras, Feria, Pablo, Hilado, Bengzon, Briones and Padilla, JJ., concur.

Separate Opinions
PERFECTO, J., dissenting:
We agree with the rule that laws of political nature or affecting political relations are considered in abeyance
during enemy military occupation, although we maintain that the rule must be restricted to laws which are
exclusively political in nature. We agree with the theory that the rule is not intended for and does not bind the
enemies in arms, but we do not agree with the theory that the rule is intended for the civil inhabitants of the
occupied territory without exception. We are of opinion that the rule does not apply to civil government of the
occupied territory. Enemy occupation does not relieve them from their sworn official duties. Government
officers wield powers and enjoy privileges denied to private citizens. The wielding of powers and enjoyment of
privileges impose corresponding responsibilities, and even dangers that must be faced during emergency.
The petitioners assailed the constitutionally of the 93rd Article of War, providing that "any person subject to
military law who commits murder in time of war shall suffer death or imprisonment for life, as the court-martial
may direct," because no review is provided by said law to be made by the Supreme Court, irrespective of
whether the punishment is for life imprisonment or death, such omission being a violation of section 2 (4) ,
Article VIII, of the Constitution of the Philippines.
Petitioners are mistaken. The silence of the law as to the power of the Supreme Court to review the decisions
and proceedings of courts-martial, especially when the penalty imposed is death or life imprisonment, should
not be understood as negating such power, much more when it is recognized and guaranteed by specific
provisions of the fundamental law. At any rate, any doubt in interpreting the silence of the law must be resolved
in favor of a construction that will make the law constitutional.
Furthermore, it may not be amiss to recall the fact that the National Assembly, in approving the Articles of War
(Commonwealth Act No. 408), had never intended to deny or diminish the power of the Supreme Court to
review, revise, reverse or modify final judgments and decrees of courts martial created and organized under
the Articles of War. On the contrary, it was clearly understood that the decrees and the decisions of said courts-
martial are subject to review by the Supreme Court. The last Committee report on the Articles of War was
rendered to the National Assembly by its Committee on Third Reading, commonly known as the "Little Senate,"
which submitted the bill printed in final form. As chairman of the committee and in behalf of the same, we
submitted the report recommending the approval of the bill on third reading with the express statement and
understanding that it would not deprive the Supreme Court of its constitutional revisionary power on final
judgments and decrees of courts-martial proposed to be created, which were and are to be considered as part
of the judicial system, being included in the denomination of inferior courts mentioned in section 1, Article VIII,
of the constitution. With the said statement and understanding, the National Assembly, without any dissenting
vote, approved the Articles of War as recommended by the Committee on third Reading.
Consequently, petitioners' contention is untenable, the premise upon which they assailed the constitutionality of
the 93rd Article of War being groundless in view of the actuation of the national Assembly.
The majority appear to concur in petitioners' premise that, by the silence of the Articles of War, the Supreme
Court is deprived of its constitutional power to review final decisions of courts-martial. The majority even go as
far as to justify the constitutionality of such deprivation on the theory that courts martial belong, not to the
judicial branch of the government, but to the executive department, citing as authority therefor Winthrop's
Military Law and Precedents. The majority are in error.
In our opinion in Yamashita vs. Styer (L-129, 42 Off. Gaz., 664) and in Homma vs. Styer (L-244), we have
shown that this Supreme Court enjoys the power to revise the actuations and decisions of military
commissions, especially if they act without jurisdiction or violate the law, military commissions being included
within the denomination of inferior courts under the provisions of our Constitution. Courts-martial are, likely
military commissions, inferior courts. The fact that they are military tribunals does not change their essence as
veritable tribunals or courts of justice, as agencies of the government in the administration of justice. Their
functions are essentially judicial. Except in cases where judicial functions are specifically entrusted by the
Constitution to other agencies — such as impeachment to Congress, legislative electoral contests to the
Electoral Tribunals — all judicial functions are vested in the Supreme Court and in such inferior courts as may
be established by law. Courts-martial are inferior courts established by law.
The majority's theory is based on an authority which has no bearing or application under the Constitution of the
Philippines. Winthrop's Military Law and Precedents has in mind the Constitution of the United States of
America, the provisions of which regarding the judicial department are essentially different from those
contained in our own Constitution.
Article III of the Constitution of the United States of America is as follows:
 SECTION 1. The Judicial Power of the United States, shall be vested in one Supreme Court, and in
such inferior courts as the Congress may from time to time ordain and establish. The Judges, both of
the Supreme Court and Inferior Courts, shall hold their offices during good behavior, and shall at
stated times, received for their services, a compensation, which shall not be diminished during their
continuance in office.
SEC. 2. The Judicial Power shall extend to all cases, in Law and Equity, arising under this
Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their
authority; — to all cases affecting Ambassadors, other public Ministers and Consuls; — to all cases of
admirality and maritime jurisdiction; — to controversies to which the United States shall be a party; —
to controversies between two or more States; — between a States and citizens of another State; —
between citizens of another State; — between citizens of different States, — between citizens of the
same State claiming lands under grants of different States, and between a State, or the citizens
thereof, and foreign States, citizens or subjects.
In all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State
shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before
mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such
exceptions, and under such regulations as the Congress shall make.
The trial of all crimes, except in cases of impeachment, shall be jury; and such trial shall be held in the
State where the said crimes shall have been committed; but when not committed within any State, the
trial shall be at such place or places as the Congress may by law have directed.
SEC. 3. Treason against the United States, shall consist only in levying war against them, or in
adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless
on the testimony of two witnesses to the same overt act, or on confession in open court.
The Congress shall have power to declare the punishment of treason, but no attainder of treason shall
work corruption of blood, or forfeiture except during the life of the person attached.
A comparison of the above provision with that of the Constitution of the Philippines will readily show that the
former does not have the negative provision contained in the latter to the effect that our Supreme Court may
not be deprived of certain specific judicial functions.
Section 2 of Articles VIII of our Constitution is as follows:
SEC. 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 original jurisdiction over cases affecting
ambassadors, other public ministers, and consuls, nor of its jurisdiction to review, revise, reverse,
modify of affirm on appeal, certiorari, or writ of error, as the law or the rules of court may provide, final
judgments and decrees of inferior courts in —
(1) All cases in which the constitutionality or validity of any treaty, law, ordinance, or executive order or
regulations is in question.
(2) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in
relation thereto.
(3) All cases in which the jurisdiction of any trial courts is in issue.
(4) All criminal cases in which the penalty imposed is death or life imprisonment.
(5) All cases in which an error or question of law is involved.
It is our considered opinion that the theory maintained in Winthrop's Military Law and Precedents and in the
decisions of the Supreme Court of the United States cited therein to the effect that the trial and punishment of
military and naval offenses by courts-martial are executive functions because the only legitimate object of
military tribunals "is to aid the Crown to maintain the discipline and government of the Army," as applied in the
Philippine, is basically wrong, being rooted in the English monarchial ideology.
Military tribunals are tribunals whose functions are judicial in character and in nature. No amount of
logodaedaly may change the nature of such functions. The trial and punishment of offenses, whether civil or
military naval or aerial, since time immemorial, have always been considered as judicial functions. The fact that
such trial and punishment are entrusted to "tribunals or courts-martial" shows the nuclear idea of the nature of
the function. Tribunals and courts are the agencies employed by government to administer justice.
The very fact that in this case the Supreme Court has given due course to the petition, required respondents to
answer, set the case for hearing and, in fact, heard it, instead of ordering the outright dismissal of the petition
as soon as it was filed, thus following the same procedure in Reyes vs. Crisologo, (L-54, 41 Off. Gaz., 1096)
and in Yamashita vs. Styer (supra), is a conclusive evidence of the fact of that this Supreme Court has the
jurisdiction and power to review the proceedings and decision of military tribunals, such as courts-martials,
military commissions, and other similar bodies exercising judicial functions limited to military personnel.
It appearing that petitioners impugning the jurisdiction of the court-martial which has tried and convicted them,
we are of opinion that the petition must be granted in the sense that the records of the court-martial in question
should, be elevated to the Supreme Court for revision, so that we may decide the question on the court-
martial's jurisdiction and give petitioners the justice they are claiming for.

SOFT LAW V. HARD LAW

Hard law refers to actual binding legal instruments
and laws. In contrast with soft law, hard law gives States
and international actors actual binding responsibilities as
well as rights. ... In international law, hard law includes
self-executing treaties or international agreements, as well
as customary laws.

The term soft law is used to denote agreements,

principles and declarations that are not legally binding.
... Hard law refers generally to legal obligations that are
binding on the parties involved and which can be legally
enforced before a court.

Soft law was perceived as a way to establish a consensus

of norms between members of an agreement that could
later be codified through binding law. ... In the
environment area, soft law is usually subsequent to
treaties, and is used as a way to flesh out less clearly
defined principles in the treaty text.

The term "soft law" refers to quasi-legal instruments

which do not have any legally binding force, or whose
binding force is somewhat weaker than the binding force
of traditional law, often contrasted with soft law by being
referred to as "hard law".[1] Traditionally, the term "soft law"
is associated with international law, although more
recently it has been transferred to other branches of
domestic law as well.
In the context of international law, the term "soft law"
covers such elements as:
 Most Resolutions and Declarations of the UN General
Assembly
 Elements such as statements, principles, code of

practice etc.; often found as part of framework treaties;

 Action plans (for example, Agenda 21, Financial
Action Task Force Recommendations);
 Other non-treaty obligations

European Union and the Council of Europe

The term "soft law" is also often used to describe various
kinds of quasi-legal instruments of the European Union:
"codes of conduct", "guidelines", "communications" etc. In
the area of law of the European Union, soft law
instruments are often used to indicate how the European
Commission intends to use its powers and perform its
tasks within its area of competence. The resolutions and
recommendations of the Council of Europe are also soft
law. These represent the views of the Parliamentary
Assembly of the Council of Europe, but are not legally
binding for the 47 member states.
By contrast, the European Union directives are legally
binding. The conventions of the Council of Europe are also
legally binding for those countries which choose to ratify
them, but countries are not forced to ratify them.
we held that the reinstatement of criminal cases against the
accused did not violate his right against double jeopardy since the
dismissal of the information by the trial court had been effected at
his own instance when the accused filed a motion to dismiss on the
grounds that the facts charged do not constitute an offense and
that the RTC had no jurisdiction over the case. In this case,
considering that since the dismissal of the previous criminal case
against petitioner was by reason of his motion for the quashal of
the information, petitioner is thus deemed to have expressly given
his consent to such dismissal. There could then be no double
jeopardy in this case since one of the requisites therefore, i.e., that
the dismissal be without accused’s express consent, is not
present.
SECOND DIVISION
G.R. No. 136264 May 28, 2004
ATTY. REYNALDO P. DIMAYACYAC, petitioner,
vs.
HON. COURT OF APPEALS, HON. VICENTE Q. ROXAS, IRENE AGBADA-CRUZ, SIXTO AGBADA CRUZ,
MERCEDES ARISTORENAS and ROMEO GOMEZ and PEOPLE OF THE PHILIPPINES, respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
Before us is a petition for review on certiorari assailing the Decision 1 of the Court of Appeals (CA for brevity)
dated November 13, 1998 in CA-G.R. SP No. 43884, denying Atty. Reynaldo P. Dimayacyac’s petition for
certiorari and ruling that the Regional Trial Court (Branch 227) of Quezon City (RTC for brevity) was correct in
denying petitioner’s motion to quash the information charging petitioner with falsification of public documents,
docketed as Criminal Case No. Q-93-49988.
The antecedent facts as borne out by the records of the case are accurately narrated in the CA Decision dated
November 13, 1998, thus:
An information for falsification of public documents docketed as Criminal Case No. Q-91-18037 at the
RTC of Quezon City was filed against petitioner along with some others. That information reads:
The undersigned Assistant City Prosecutor accuses LOURDES ANGELES, ESTRELLA
MAPA, ATTY. PONCIANO R. GUPIT, and ATTY. REYNALDO P. DIMAYACYAC of the crime
of FALSIFICATION OF PUBLIC DOCUMENT (under Article 172, first and last paragraph in
relation to Article 171 paragraph 2 of the Revised Penal Code), committed as follows:
That on or about the 5th day of 1986, in Quezon City, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, all private individuals,
conspiring together, confederating with and mutually helping one another, did then
and there willfully, unlawfully and feloniously commit the act of falsification of public
documents, by then and there falsifying or causing the falsification of the following
documents, to wit:
 (a) Certification dated March 10, 1986 purportedly signed by a certain
Fernando Dizon, Record Management Analyst of the Bureau of Land,
Central Office, Manila;
(b) Report dated May 5, 1986 purportedly signed by a certain Jose Mariano,
Chief Record Management Division of Bureau of Land, Central Office,
Manila; and
(c) Sales Certificate and Deed of Assignment allegedly issued by the Bureau
of Land in favor of Lourdes Angeles; that despite the fact that said accused
knew all the time that said documents are fake and spurious used the same
in the Petition for Reconstitution of Records of the technical description of
Lots Nos. 755, 777, 778 and 783 of the Piedad Estate covered by TCT No.
14, Decree No. 667, GLRO Record No. 5975 and the issuance of Title
thereto filed by Estrella Mapa over and involving the aforesaid lots in Land
Registration Case docketed as LRC Case No. 3369 (86) before Branch 99,
Regional Trial Court, Quezon City and that by virtue of said falsification and
the use of the same as evidence in Court Honorable Presiding Judge
Godofredo Asuncion issued an order dated June 30, 1986 granting said
petition, and pursuant thereto the Register of Deeds of Quezon City issued
Transfer Certificates of Titles Nos. 348156, 348291 and 348292 in the name
of Estrella Mapa thereby embracing and/or encroaching the portions of the
properties belonging to Romeo D. Gomez, Sixto Agbada, Irene Agbada-Cruz
and Mercedes Aristorenas whose properties were embraced and included in
the said Transfer Certificates of Titles and in such amount as may be
awarded under the provisions of the Civil Code.
CONTRARY TO LAW.
Before his arraignment, petitioner moved to quash the information on two (2) grounds. First, that the
officer who filed the information had no legal authority to do so, and second, that more than one
offense was charged in the information.
Pending resolution of the motion to quash, petitioner was arraigned.
By Order of August 23, 1991, Judge Benigno T. Dayaw of Branch 80 of the Regional Trial Court of
Quezon City to whose sala Criminal Case No. Q-91-18037 was raffled, holding that the "grant or denial
of Motion to Dismiss whether the accused is arraigned or not is discretionary on the part of the Court,"
it citing People vs. IAC, L-66939-41, January 10, 1987, granted the petitioner’s motion to quash upon
the second ground. Accordingly, the information was quashed.
More than two (2) years after the quashal of the information in Criminal Case No. Q-91-18037 or on
October 19, 1993, the Quezon City Prosecutor filed against the same accused including petitioner two
(2) informations for falsification of public documents docketed at the Quezon City RTC as Criminal
Case Nos. Q-93-49988 and 49989. The Informations arose from the questioned acts of falsification
subject of the earlier quashed information in Criminal Case No. Q-91-18037.
Petitioner later filed with Branch 103 of the RTC of Quezon City to which the informations were raffled
a motion for the quashal thereof on the ground of double jeopardy, citing Section 3(h) of Rule 117 of
the Revised Rules of Court.
Petitioner argued at the court a quo that he would be placed in double jeopardy as he was indicted
before for the same offenses and the case was dismissed or otherwise terminated without his express
consent.
By the assailed Order of December 18, 1996, public respondent, Judge Vicente Q. Roxas of Branch
227 of the RTC of Quezon City to which the two (2) informations against petitioner, et al, were
eventually lodged, held that the information in Criminal Case No. Q-93-49988 involved a different
document as that involved in Criminal Case No. Q-91-18037 which had already been quashed.
Resolution of the motion to quash the information in Criminal Case No. Q-93-49989 was stayed
pending the submission by petitioner of the documents required by the court a quo. Public respondent
thus denied the motion to quash the information in Criminal Case No. Q-93-49988 and ordered
petitioner’s arraignment, he holding that said case did not place petitioner in double jeopardy. 2
Herein petitioner then filed a petition for certiorari before the CA which denied his petition stating in its Decision
that since the Information in Criminal Case No. Q-91-18037, on petitioner’s motion, was quashed on the ground
that more than one offense was charged pursuant to Sec. 3 (e) of Rule 117 of the Revised Rules of Court, 3 he
is not placed in double jeopardy by the filing of another Information for an offense included in the charge
subject of the Information in Criminal Case No. Q-91-18037.4
Hence, herein petition for review on certiorari assigning the following errors of the CA, to wit:
 I. That the Honorable Court of Appeals ERRED in disregarding the legal doctrine that THERE IS
DOUBLE JEOPARDY, in the case now pending before Respondent Judge Vicente Q. Roxas;
II. That the Honorable Court of Appeals ERRED in not adhering to the decisions of this Honorable
Supreme Court, as well as to applicable jurisprudence on the matter;
III. That the Honorable Court of Appeals ERRED in not taking into account that based on the
"Manifestation and Motion (To Grant Petition) In Lieu of Comment" filed by the Office of the Solicitor
General, the ORDER of dismissal of Honorable Judge Benigno T. Dayaw in Criminal Case No. Q-91-
18037 on August 23, 1991 has become final and executory; and
IV. That the Honorable Respondent Court of Appeals ERRED in concluding that an ORDER sustaining
the motion to quash is not a bar to another prosecution for the same offense, as it has no legal basis.5
On the other hand, the Office of the Solicitor General (OSG) contends that petitioner, by filing the motion to
quash and refusing to withdraw it after he was arraigned, is deemed to have waived his right against double
jeopardy, as his motion to quash constituted his express consent for the dismissal of the information. However,
the OSG advances the view that the criminal case against herein petitioner may be dismissed for the inordinate
delay in the conduct of preliminary investigation for the purpose of filing the proper information, which is a
violation of the accused’s constitutional right to due process of law and to speedy disposition of cases.
Private respondent complainant Irene Agbada-Cruz, in turn, submits that the Court of Appeals committed no
error since the dismissal or quashal of an information is not a bar to another prosecution except when the
motion to quash is based on the ground that (1) the criminal action or liability has been extinguished or that (2)
the accused has previously been convicted or in jeopardy of being convicted or acquitted of the offense
charged, pursuant to Section 6 in relation to Section 3, Rule 117 of the Rules of Court, to wit:
Section 6. Order sustaining the motion to quash not a bar to another prosecution; exception. - An order
sustaining the motion to quash is not a bar to another prosecution for the same offense unless the
motion was based on the grounds specified in Section 3, sub-sections (f) and (h) of this Rule.
Section 3. Grounds. – The accused may move to quash the complaint or information on any of the
following grounds:
(a) That the facts charged do not constitute an offense;
(b) That the court trying the case has no jurisdiction over the offense charged or the person of
the accused;
(c) That the officer who filed the information had no authority to do so;
(d) That it does not conform substantially to the prescribed form;
(e) That more than one offense is charged except in those cases in which existing laws
prescribe a single punishment for various offenses;
(f) That the criminal action or liability has been extinguished;
(g) That it contains averments which, if true, would constitute a legal excuse or justification;
and
(h) That the accused has been previously convicted or in jeopardy of being convicted,
or acquitted of the offense charged. (Emphasis supplied)
Thus, private respondent Cruz argues that since the previous information was quashed on the ground of
duplicity of offenses charged, the subsequent filing of a proper information is, therefore, not barred.
In their Memorandum, private respondents-complainants Romeo Gomez and Mercedes Aristorenas contend
that (1) jeopardy does not attach where the dismissal of the information was effected at the instance of the
accused; and (2) there was no violation of petitioner’s right to a speedy disposition of his case since he never
raised this issue in the trial court nor in the appellate court, hence, his silence should be interpreted as a waiver
of said right to a speedy trial.
The issues boil down to (1) whether or not the prosecution of petitioner under the Information docketed as
Criminal Case No. Q-93-49988 would constitute double jeopardy, considering that when the Information in
Criminal Case No. Q-91-18037 was previously quashed, he had already been arraigned, and (2) whether or not
petitioner’s constitutional right to a speedy disposition of his case has been violated.
With regard to the first issue, we are in accord with the ruling of the CA that not all the elements for double
jeopardy exist in the case at bench. In People vs. Tac-An,6 we enumerated the elements that must exist for
double jeopardy to be invoked, to wit:
Thus, apparently, to raise the defense of double jeopardy, three requisites must be present: (1) a first
jeopardy must have attached prior to the second; (2) the first jeopardy must have been validly
terminated; and (3) the second jeopardy must be for the same offense as that in the first.
Legal jeopardy attaches only (a) upon a valid indictment, (b) before a competent court, (c) after arraignment,
(d) a valid plea having been entered; and (e) the case was dismissed or otherwise terminated without the
express consent of the accused (People vs. Ylagan, 58 Phil. 851).
Was the duplicitous information a valid indictment? We answer in the affirmative. In People vs. Bugayong,7 we
ruled that when an appellant fails to file a motion to quash within the time prescribed under Section 1, Rule 117
of the Rules of Court, he is thus deemed to have waived the defect in the Information. In People vs.
Manalili,8 we held that an accused, who fails to object prior to arraignment to a duplicitous information, may be
found guilty of any or all of the crimes alleged therein and duly proven during the trial, for the allegation of the
elements of such component crimes in the said information has satisfied the constitutional guarantee that an
accused be informed of the nature of the offense with which he or she is being charged. Verily, a duplicitous
information is valid since such defect may be waived and the accused, because of such waiver, could be
convicted of as many offenses as those charged in the information and proved during trial.
The validity of the information having been
established, we go on to examine whether the other
requisites for double jeopardy to attach are present. In
the present case, although there was a valid
indictment before a competent court and petitioner, as
the accused, had already been arraigned therein,
entering a valid plea of not guilty, the last requisite
that the case was dismissed or otherwise terminated
without his express consent, is not present.
It should be noted that the termination of Criminal
Case No. Q-91-18037 was upon motion of petitioner
who, on April 1, 1991, filed with the court an Urgent
Motion to Quash which was granted by Resolution
dated August 23, 1991. In Sta. Rita vs. Court of
Appeals,9 we held that the reinstatement of criminal
cases against the accused did not violate his right
against double jeopardy since the dismissal of the
information by the trial court had been effected at his
own instance when the accused filed a motion to
dismiss on the grounds that the facts charged do not
constitute an offense and that the RTC had no
jurisdiction over the case. In this case, considering
that since the dismissal of the previous criminal case
against petitioner was by reason of his motion for the
quashal of the information, petitioner is thus deemed
to have expressly given his consent to such
dismissal. There could then be no double jeopardy in
this case since one of the requisites therefore, i.e.,
that the dismissal be without accused’s express
consent, is not present.
As to whether the subsequent filing of the two informations docketed as Q-93-49988 and Q-93-49989
constitutes a violation of petitioner’s constitutional right to a speedy disposition of cases, 10 we rule in the
negative. We are not convinced by the OSG’s assertion that the cases of Tatad vs.
Sandiganbayan11 or Angchangco, Jr. vs. Ombudsman,12 are applicable to the case before us. We see
differently. There is no factual similarity between this case before us and the cases of Tatad and Angchangco.
In the Tatad case, there was a hiatus in the proceedings between the termination of the proceedings before the
investigating fiscal on October 25, 1982 and its resolution on April 17, 1985. The Court found that "political
motivations played a vital role in activating and propelling the prosecutorial process"13 against then Secretary
Francisco S. Tatad. In the Angchangco case, the criminal complaints remained pending in the Office of the
Ombudsman for more than six years despite the respondent’s numerous motions for early resolution and the
respondent, who had been retired, was being unreasonably deprived of the fruits of his retirement because of
the still unresolved criminal complaints against him. In both cases, we ruled that the period of time that elapsed
for the resolution of the cases against the petitioners therein was deemed a violation of the accused’s right to a
speedy disposition of cases against them.
In the present case, no proof was presented to show any persecution of the accused, political or otherwise,
unlike in the Tatad case. There is no showing that petitioner was made to endure any vexatious process during
the two-year period before the filing of the proper informations, unlike in the Angchangco case where petitioner
therein was deprived of his retirement benefits for an unreasonably long time. Thus, the circumstances present
in the Tatad and Angchangco cases justifying the "radical relief" granted by us in said cases are not existent in
the present case.
We emphasize our ruling in Ty-Dazo vs. Sandiganbayan14 where we held that:
The right to a speedy disposition of cases, like the right to a speedy trial, is deemed violated only when
the proceedings is attended by vexatious, capricious, and oppressive delays; or when unjustified
postponements of the trial are asked for and secured, or when without cause or unjustifiable motive, a
long period of time is allowed to elapse without the party having his case tried. In the determination of
whether or not that right has been violated, the factors that may be considered and balanced are: the
length of the delay the reasons for such delay, the assertion or failure to assert such right by the
accused, and the prejudice caused by the delay.
A mere mathematical reckoning of the time involved, therefore, would not be sufficient. In the
application of the constitutional guarantee of the right to speedy disposition of cases, particular regard
must also be taken of the facts and circumstances peculiar to each case. (Emphasis supplied)
Thus, we shall examine how such aforementioned factors affected herein petitioner’s right.
As to the length of delay, it is established that the prosecution did not take any action on petitioner’s case for
two years. From the time that Criminal Case No. Q-91-18037 was dismissed on August 23, 1991, the
prosecution failed to effect the very simple remedy of filing two separate informations against petitioner until
October of 1993. Indeed, there was a delay in the refiling of the proper informations. However, the prosecution
was never given the opportunity to explain the circumstances that may have caused such delay precisely
because petitioner never raised the issue of the length of time it took the prosecution to revive the case. There
is nothing on record to show what happened during the two-year lull before the filing of the proper informations.
Hence, it could not be ascertained that peculiar situations existed to prove that the delay was vexatious,
capricious and oppressive, and therefore, a violation of petitioner’s constitutional right to speedy disposition of
cases.
What the records clearly show is that petitioner never asserted his right to a speedy disposition of his case. The
only ground he raised in assailing the subsequent filing of the two informations is that he will be subjected to
double jeopardy. It was only the OSG that brought to light the issue on petitioner’s right to a speedy disposition
of his case, and only when the case was brought to the appellate court on certiorari. Even in this petition before
us, petitioner did not raise the issue of his right to a speedy disposition of his case. Again, it was only the OSG
that presented such issue to us in the Brief for the State which was only then adopted by petitioner through a
Manifestation dated August 3, 1999. We are not convinced that the filing of the informations against petitioner
after two years was an unreasonable delay. Petitioner himself did not really believe that there was any violation
of his right to a speedy disposition of the case against him.
The case which is more in point with the present one before us is Dela Peña vs. Sandiganbayan15 where we
ruled that petitioner therein, for failing to assert their right to a speedy disposition of their cases, was deemed to
have waived such right and thus, not entitled to the "radical relief" granted by the Court in the cases
of Tatad and Angchangco. The factual circumstances surrounding herein petitioner’s case do not demonstrate
that there was any violation of petitioner’s right to a speedy disposition of his case.
WHEREFORE, the petition is hereby DENIED for lack of merit. The temporary restraining order issued
pursuant to our Resolution dated January 17, 2000 is hereby LIFTED and the Regional Trial Court of Quezon
City (Branch 227) is hereby ORDERED to proceed with dispatch with petitioner’s arraignment in Criminal Case
No. Q-93-49988.
SO ORDERED.
Puno*, Quisumbing**, Callejo, Sr., and Tinga, JJ., concur.
Footnotes

the Court has categorically ruled that since the preliminary

investigation stage is not part of the trial, the dismissal of a case
during preliminary investigation would not put the accused in
danger of double jeopardy in the event of a re-investigation or the
filing of a similar case. An investigating body is not bound by the
findings or resolution of another such office, tribunal or agency
which may have had before it a different or incomplete set of
evidence than what had been presented during the previous
investigation.13 Therefore, petitioner's indictment pursuant to the
findings of the Office of the City Prosecutor, and his eventual
conviction for the crime of grave threats, has not placed him in
double jeopardy.
THIRD DIVISION
G.R. No. 183681 July 27, 2015
SPO2 ROLANDO JAMACA, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
PERALTA, J.:
This resolves the petition for review on certiorari seeking the reversal of the Decision 1 of the Court of Appeals (CA)
promulgated on May 26, 2004 and the Resolution2 dated June 19, 2008 in CA G.R. CR No. 23887. The CA affirmed
the judgment of the Regional Trial Court of Cagayan de Oro City (RTC), finding petitioner SP02 Ro1ando Jamaca
guilty beyond reasonable doubt of Grave Threats in Criminal Case No. 97-1598.
The antecedent facts are as follows:
Private complainant Atty. Emilie Bangot filed a complaint for Grave Threats against petitioner with the Office of the
Deputy Ombudsman for the Military, docketed as OMB-MIL-CRIM-97-0754. He likewise filed a similar complaint
before the Office of the City Prosecutor of Cagayan de Oro City.
In a Resolution3 dated January 26, 1998, the Office of the Deputy Ombudsman for the Military dismissed the
complaint on the ground that the accusation against petitioner was unfounded, based solely on the statement of one
Rustom Roxas that there were no threatening words uttered by petitioner. A petition for certiorari was filed with this
Court to assail said ruling of the Office of the Deputy Ombudsman for the Military, but the same was dismissed in a
Resolution dated July 29, 1998, which read, thus:
The petition [or] for certiorari is dismissed for utter lack of merit, having failed to comply with well nigh all the relevant
requisites laid down by law, prescinding from the obvious proposition that the Supreme Court does not review
findings and conclusions of investigators conducting a preliminary inquiry or investigation into charges of a crime.4
On the other hand, private complainant's complaint before the Office of the City Prosecutor prospered and led to the
filing of an Information against petitioner. He was charged with grave threats defined and penalized under paragraph l
of Article 282 of the Revised Penal Code allegedly committed as follows:
That on [or] about July 22 1997 in the evening, at Kalambaguhan/Burgos Streets, Cagayan de Oro City, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill and moved by
personal resentment which he entertained against Atty. Emelie P. Bangot, Jr., did then and there willfully, unlawfully
and feloniously threaten the latter with the infliction upon him of a wrong amounting to a crime subject to a condition,
by threatening to kill the offended party thus uttering or shouting words in the presence of: and within the hearing
distance of Jay Jay R. Bangot (son of offended party) as follows, to wit:
KUNG MATANGTANG AKO SA TRABAHO,
BUAKON KO ANG ULO NI ATTY. BAN GOT ...
which means in English: "If I will loss my work I will break the head of Atty. Ban got ... ", or words of similar import,
directed to the said offended party, Atty. Emelie P. Bangot, Jr., without however attaining accused's purpose, thereby
casting fear upon offended party's person and endangering his life.
Contrary to and in violation of Art. 282, paragraph 1, of the Revised Penal Code. 5
Upon arraignment, petitioner pleaded not guilty and trial then ensued. The prosecution presented three witnesses,
including the son of private complainant, who all testified that while petitioner was at the house of Rustom Roxas,
they all heard petitioner utter words threatening to cause private complainant Atty. Bangot grave bodily harm. On the
other hand, petitioner insisted that he went to the house of Rustom Roxas, a relative by affinity of Atty. Bangot, to ask
Rustom Roxas to mediate and reconcile him (petitioner) with Atty. Bangot. Petitioner denied that he ever mentioned
any threatening words against Atty. Bangot. Elisea Jamaca, petitioner's wife, corroborated petitioner's testimony. The
prosecution then presented Phoebe Roxas, the wife of Rustom Roxas, as rebuttal witness. She testified that she was
in the very same room and clearly heard petitioner utter words to the effect that if he (petitioner) loses his job, he will
break the head of Atty. Bangot. She also said that Jay Bangot, the son of private complainant, was also there in their
house, sitting only about two and a half meters away from petitioner, when petitioner made the threats against Atty.
Bangot.
The trial court, ascribing greater credibility to the testimony of each of the prosecution witnesses, ruled that the
evidence clearly established the guilt of petitioner. The dispositive portion of the RTC Decision reads as follows:
WHEREFORE, premises considered, judgment is hereby rendered finding accused SP02 Rolando Jamaca guilty
beyond reasonable doubt as principal of the offense of GRAVE THREATS defined and punishable under paragraph 2
of Art. 282 of the Revised Penal Code without attendance of any aggravating or mitigating circumstances.
Consequently, pursuant to said law, he is hereby sentenced with the accessories of the law as provided by Art. 44 of
the Revised Penal Code, to an imprisonment of two (2) months and one (1) day to be served at the City Jail,
Cagayan de Oro City and to pay a fine in the sum of Five Hundred Pesos (₱500.00) with subsidiary imprisonment in
case of insolvency computed at the rate of one (1) day for each eight pesos but in no case will it exceed one-third of
the term of the sentence.
No pronouncement as to the credit of preventive imprisonment since accused immediately put up a bond for his
temporary liberty without waiting for his arrest.
SO ORDERED.6
The trial court's Decision was appealed to the CA and, on May 26, 2004, the CA promulgated a Decision affirming in
toto petitioner's conviction for the crime of Grave Threats. Petitioner's motion for reconsideration was denied by the
CA per Resolution dated June 19, 2008.
Petitioner then filed his Petition for Review on Certiorari and a Supplemental Petition for Review on Certiorari with this
Court. The only issue presented in the original petition is whether the CA should have dismissed the petition outright
and ruled that the RTC had no jurisdiction to take cognizance of the case because private complainant was guilty of
forum shopping, having filed similar complaints before both the Office of the Deputy Ombudsman and the Office of
the City Prosecutor. Subsequently, in his Supplemental Petition, petitioner raised additional issues, to wit:
I
RESPONDENT COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN NOT APPLYING THE DOCTRINE
OF RES JUDICATA AS THE CONVICTION OF THE ACCUSED PETITIONER FOR THE CRIME OF GRAVE
THREATS BY THE TRIAL COURT HAD LONG BEEN DISMISSED BY THE OMBUDSMAN FOR THE MILITARY IN
ITS RESOLUTION OF JANUARY 26, 1998 FOR EXACTLY THE SAME CRIME, WHICH WAS UPHELD BY THIS
HONORABLE COURT IN G.R. NO. 134664 WHEN IT DISMISSED A PETITION FOR CERTIORARI OF SUCH
DISMISSAL AND THAT ENTRY OF JUDGMENT HAD BEEN MADE ON DECEMBER 1, 1998, HENCE, IF THIS
ERRONEOUS CONVICTION IS NOT REVERSED IN THIS PETITION FOR REVIEW THE SAME WOULD [BE]
TANTAMOUNT TO VIOLATING THE CONSTITUTIONAL RIGHTS OF THE ACCUSED AGAINST DOUBLE
JEOPARDY.
II
THE COURT OF APPEALS ERRED IN NOT HOLDING THAT THE INFORMATION FILED BY THE OFFICE OF THE
CITY PROSECUTOR OF CAGAYAN DE ORO IS NULL AND VOID FROM THE VERY BEGINNING FOR LACK OF
JURISDICTION AS THE OFFICE OF THE DEPUTY OMBUDSMAN FOR THE MILITARY HAD ALREADY
DISMISSED THE CASE AFTER IT TOOK COGNIZANCE OF THE SAME, THE PETITIONER BEING A POLICE
OFFICER.
III
THE COURT OF APPEALS ERRED IN NOT HOLDING THAT THERE WAS NO GRAVE THREATS BECAUSE THE
ALLEGATIONS IN THE COMPLAINT ARE MERELYHEARSAY.7 The petition is bereft of merit.
It should be borne in mind that for a claim of double jeopardy to prosper, petitioner has to prove that a first jeopardy
has attached prior to the second. As stated in Braza v. Sandiganbayan, 8 "[t]he first jeopardy attaches only (a) after a
valid indictment; (b) before a competent court; ( c ) after arraignment; (d) when a valid plea has been entered; and (
e) when the accused was acquitted or convicted, or the case was dismissed or otherwise terminated without his
express consent."9 In this case, the complaint before the Office of the Deputy Ombudsman for the Military was
dismissed as early as the preliminary investigation stage, thus, there was as yet, no indictment to speak of. No
complaint or Information has been brought before a competent court. Hence, none of the aforementioned events has
transpired for the first jeopardy to have attached.
In Vincoy v. Court of Appeals,10 which is closely analogous to the present case, the private complainant therein
initially filed a complaint with the Office of the City Prosecutor of Pasay City, but said office dismissed the complaint.
Private complainant then re-filed the complaint with the Office of the City Prosecutor of Pasig City. The Office of the
Prosecutor of Pasig City found probable cause and filed the Information against the accused therein. In said case, the
Court categorically held that:
The dismissal of a similar complaint x x x filed by [private complainant] before the City Prosecutor's Office of Pasay
City will not exculpate the petitioner. The case cannot bar petitioner's prosecution. It is settled that the dismissal of a
case during its preliminary investigation does not constitute double jeopardy since a preliminary investigation is not
part of the trial and is not the occasion for the full and exhaustive display of the parties' evidence but only such as
may engender a well-grounded belief that an offense has been committed and accused is probably guilty thereof. For
this reason, it cannot be considered equivalent to a judicial pronouncement of acquital. 11

the Court has

The fore going ruling was reiterated in Trinidad v. Office of the Ombudsman, 12 where

categorically ruled that since the preliminary

investigation stage is not part of the trial, the
dismissal of a case during preliminary investigation
would not put the accused in danger of double
jeopardy in the event of a re-investigation or the filing
of a similar case. An investigating body is not bound
by the findings or resolution of another such office,
tribunal or agency which may have had before it a
different or incomplete set of evidence than what had
been presented during the previous
investigation.13 Therefore, petitioner's indictment
pursuant to the findings of the Office of the City
Prosecutor, and his eventual conviction for the crime
of grave threats, has not placed him in double
jeopardy.
As to petitioner's argument that the information filed by the Office of the City Prosecutor is null and void for lack of
jurisdiction as the Office of the Deputy Ombudsman for the Military had already dismissed the case, the same is
likewise tenuous. In Flores v. Montemayor,14 the Court clarified that the Ombudsman's jurisdiction to investigate
public officers and employees as defined under Section 15 of R.A. No. 6770 is not exclusive, and explained, thus:
This power of investigation granted to the Ombudsman by the 1987 Constitution and The Ombudsman Act is not
exclusive but is shared with other similarly authorized government agencies, such as the PCGG and judges of
municipal trial courts and municipal circuit trial courts. The power to conduct preliminary investigation on charges
against public employees and officials is likewise concurrently shared with the Department of Justice. Despite the
passage of the Local Government Code in 1991, the Ombudsman retains concurrent jurisdiction with the Office of the
President and the local Sanggunians to investigate complaints against local elective officials. 15
Petitioner's argument that the CA should have dismissed the petition outright because private complainant committed
forum shopping by filing similar complaints with the Office of the Ombudsman for the Military and the Office of the
City Prosecutor, should not be given consideration. The Court stated in De Guzman v. Ochoa, 16 that failure to comply
with the requirements on the rule against forum shopping is not a ground for the motu proprio dismissal of the
complaint because the rules are clear that said issue shall cause the dismissal of the case only upon motion and after
hearing.17 More importantly, as the Court held in S. C. Megaworld Construction and Development Corporation v.
Parada,18 to wit:
It is well-settled that no question will be ente1iaincd on appeal unless it has been raised in the proceedings below.
Points of law, theories, issues and arguments not brought to the attention of the lower court, administrative agency or
quasi-judicial body, need not be considered by a reviewing court, as they cannot be raised for the first time at that late
stage. Basic considerations of fairness and due process impel this rule. Any issue raised for the first time on appeal is
barred by estoppel.
xxxx
In Young v. John Keng Seng, it was also held that the question of forum shopping cannot be raised in the CA and in
the Supreme Court, since such an issue must be raised at the earliest opportunity in a motion to dismiss or a similar
pleading. The high court even warned that "[i]nvoking it in the later stages of the proceedings or on appeal may result
in the dismissal of the action x x x.19
With regard to the sufficiency of the evidence presented by the prosecution, the Court has time and again abided by
the principle that factual findings of the trial court, its assessment of the credibility of witnesses and the probative
weight of their testimonies, and the conclusions based on these factual findings are to be given the highest respect.
Thus, generally, the Court will not recalibrate and reexamine evidence that had been analyzed and ruled upon by the
trial court and affirmed by the CA. Moreover, the supposed inconsistencies of witnesses in recounting the wordings of
the threats uttered by petitioner, are much too trivial and inconsequential to put a dent on said witnesses' credibility.
As ruled in People v. Cabtalan,20 "[m]inor inconsistencies and discrepancies pertaining to trivial matters do not affect
the credibility of witnesses, as well as their positive identification of the accused as the perpetrators of the
crime."21 Both the trial court and the CA found the prosecution witnesses' candid and straightforward testimony to be
worthy of belief and this Court sees no reason why it should not conform to the principle reiterated in Medina, Jr. v.
People22 that:
Time and again, this Court has deferred to the trial court's factual findings and evaluation of the credibility of
witnesses, especially when affirmed by the CA, in the absence of any clear showing that the trial court overlooked or
misconstrued cogent facts and circumstances that would justify altering or revising such findings and evaluation. This
is because the trial court's determination proceeds from its first-hand opportunity to observe the demeanor of the
witnesses, their conduct and attitude under grilling examination, thereby placing the trial court in the unique position
to assess the witnesses' credibility and to appreciate their truthfulness, honesty and candor. 23 The records of this
case, particularly the testimonies of the witnesses, reveal no outstanding or exceptional circumstance to justify a
deviation from such long-standing principle. There is no cogent reason to overturn the courts' ruling that the
prosecution evidence, is worthy of belief. Thus, prosecution evidence established beyond any reasonable doubt that
petitioner is indeed guilty of grave threats.
WHEREFORE, the petition is DENIED, and the Decision of the Court of Appeals dated May 26, 2004 and the
Resolution dated June 19, 2008 in CA-GR. CR No. 23887 are AFFIRMED.
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice
WE CONCUR:

the political theory on "deliberative democracy"

Proponents of the political theory on "deliberative
democracy" submit that "substantial, open, [and]
ethical dialogue is a critical, and indeed defining,
feature of a good polity."159 This theory may be
considered broad, but it definitely "includes [a]
collective decision making with the participation of all
who will be affected by the decision."160 It anchors on
the principle that the cornerstone of every democracy
is that sovereignty resides in the people.161 To ensure
order in running the state’s affairs, sovereign powers
were delegated and individuals would be elected or
nominated in key government positions to represent
the people. On this note, the theory on deliberative
democracy may evolve to the right of the people to
make government accountable. Necessarily, this
includes the right of the people to criticize acts made
pursuant to governmental functions.
Speech that promotes dialogue on public affairs, or
airs out grievances and political discontent, should
thus be protected and encouraged.
Borrowing the words of Justice Brandeis, "it is
hazardous to discourage thought, hope and
imagination; that fear breeds repression; that
repression breeds hate; that hate menaces stable
government; that the path of safety lies in the
opportunity to discuss freely supposed grievances
and proposed remedies."162
In this jurisdiction, this court held that "[t]he interest
of society and the maintenance of good government
demand a full discussion of public affairs."163 This
court has, thus, adopted the principle that "debate on
public issues should be uninhibited, robust,and wide
open . . . [including even] unpleasantly sharp attacks
on government and public officials."164
Second, free speech should be encouraged under the
concept of a market place of ideas. This theory was
articulated by Justice Holmes in that "the ultimate
good desired is better reached by [the] free trade in
ideas:

The rule of double jeopardy had a settled meaning in this

jurisdiction at the time our Constitution was promulgated. It meant
that when a person is charged with an offense and the case is
terminated either by acquittal or conviction or in any other manner
without the consent of the accused, the latter cannot again be
charged with the same or identical offense. This principle is
founded upon the law of reason, justice and conscience. It is
embodied in the maxim of the civil law non bis in idem, in the
common law of England, and undoubtedly in every system of
jurisprudence, and instead of having specific origin it simply
always existed. It found expression in the Spanish Law and in the
Constitution of the United States and is now embodied in our own
Constitution as one of the fundamental rights of the citizen.
EN BANC
G.R. No. L-3580 March 22, 1950
CONRADO CARMELO, petitioner-appellant,
vs.
THE PEOPLE OF THE PHILIPPINES and THE COURT OF FIRST INSTANCE OF RIZAL, respondent-appellees.
Jose A. Fojas for petitioner.
First Assistant Solicitor General Roberto A. Gianzon and Solicitor Martiniano P. Vivo for respondents.
MORAN, C.J.:
Petitioner Conrado Melo was charged in the Court of First Instance of Rizal, on December 27, 1949, with frustrated
homicide, for having allegedly inflicted upon Benjamin Obillo, with a kitchen knife and with intent to kill, several
serious wounds on different parts of the body, requiring medical attendance for a period of more than 30 days, and
incapacitating him from performing his habitual labor for the same period of time. On December 29, 1949, at eight
o'clock in the morning, the accused pleaded not guilty to the offense charged, and at 10:15 in the evening of the
same day Benjamin Obillo died from his wounds. Evidence of death was available to the prosecution only on January
3, 1950, and on the following day, January 4, 1950, an amended information was filed charging the accused with
consummated homicide. The accused filed a motion to quash the amended information alleging double jeopardy,
motion that was denied by the respondent court; hence, the instant petition for prohibition to enjoin the respondent
court from further entertaining the amended information.
Brushing aside technicalities of procedure and going into the substance of the issues raised, it may readily be stated
that amended information was rightly allowed to stand. Rule 106, section 13, 2d paragraph, is as follows:
If it appears at may time before the judgment that a mistake has been made in charging the proper offense,
the court may dismiss the original complaint or information and order the filing of a new one charging the
proper offense, provided the defendant would not be placed thereby in double jeopardy, and may also
require the witnesses to give bail for their appearance at the trial.
Under this provision, it was proper for the court to dismiss the first information and order the filing of a new one for the
treason that the proper offense was not charged in the former and the latter did not place the accused in a second
jeopardy for the same or identical offense.
"No person shall be twice put in jeopardy of punishment for the same offense," according to article III, section 1 (20)

The rule of double jeopardy had a settled

of our constitution.

meaning in this jurisdiction at the time our

Constitution was promulgated. It meant that when a
person is charged with an offense and the case is
terminated either by acquittal or conviction or in any
other manner without the consent of the accused, the
latter cannot again be charged with the same or
identical offense. This principle is founded upon the
law of reason, justice and conscience. It is embodied
in the maxim of the civil law non bis in idem, in the
common law of England, and undoubtedly in every
system of jurisprudence, and instead of having
specific origin it simply always existed. It found
expression in the Spanish Law and in the Constitution
of the United States and is now embodied in our own
Constitution as one of the fundamental rights of the
citizen.
It must be noticed that the protection of the Constitution inhibition is against a second jeopardy for the same offense,
the only exception being, as stated in the same Constitution, that "if an act is punished by a law and an ordinance,
conviction or acquittal under either shall constitute a bar to another prosecution for the same act." The phrase same
offense, under the general rule, has always been construed to mean not only the second offense charged is exactly
the same as the one alleged in the first information, but also that the two offenses are identical. There is identity
between the two offenses when the evidence to support a conviction for one offense would be sufficient to warrant a
conviction for the other. This so called "same-evidence test" which was found to be vague and deficient, was restated
by the Rules of Court in a clearer and more accurate form. Under said Rules there is identity between two offenses
not only when the second offense is exactly the same as the first, but also when the second offense is an attempt to
commit the first or a frustration thereof, or when it necessary includes or is necessarily included in the offense
charged in the first information. (Rule 113, sec. 9; U.S. vs. Lim Suco, 11 Phil., 484; U. S. vs. Ledesma, 29 Phil., vs.
Martinez, 55 Phil., 6.) In this connection, an offense may be said to necessarily include another when some of the
essential ingredients of the former as alleged in the information constitute the latter. And vice-versa, an offense may
be said to be necessarily included in another when all the ingredients of the former constitute a part of the elements
constituting the latter (Rule 116, sec. 5.) In other words, on who has been charged with an offense cannot be again
charged with the same or identical offense though the latter be lesser or greater than the former. "As the Government
cannot be with the highest, and then go down step to step, bringing the man into jeopardy for every dereliction
included therein, neither can it begin with the lowest and ascend to the highest with precisely the same result."
(People vs. Cox, 107 Mich., 435, quoted with approval in U. S. vs. Lim Suco, 11 Phil., 484; see also U. S. vs.
Ledesma, 29 Phil., 431 and People vs. Martinez, 55 Phil., 6, 10.)
This rule of identity does not apply, however when the second offense was not in existence at the time of the first
prosecution, for the simple reason that in such case there is no possibility for the accused, during the first
prosecution, to be convicted for an offense that was then inexistent. Thus, where the accused was charged with
physical injuries and after conviction the injured person dies, the charge for homicide against the same accused does
not put him twice in jeopardy. This is the ruling laid down by the Supreme Court of the United States in the Philippines
case of Diaz vs. U. S., 223 U. S. 442, followed by this Court in People vs. Espino, G. R. No. 46123, 69 Phil., 471, and
these two cases are similar to the instant case. Stating it in another form, the rule is that "where after the first
prosecution a new fact supervenes for which the defendant is responsible, which changes the character of the
offense and, together with the fact existing at the time, constitutes a new and distinct offense" (15 Am. Jur., 66), the
accused cannot be said to be in second jeopardy if indicated for the new offense.
This is the meaning of "double jeopardy" as intended by our constitution for was the one prevailing in jurisdiction at
the time the Constitution was promulgated, and no other meaning could have been intended by our Rules of Court.
Accordingly, an offense may be said to necessarily include or to be necessarily included in another offense, for the
purpose of determining the existence of double jeopardy, when both offenses were in existence during the pendency
of the first prosecution, for otherwise, if the second offense was then inexistence, no jeopardy could attach therefor
during the first prosecution, and consequently a subsequent charge for the same cannot constitute second jeopardy.
By the very nature of things there can be no double jeopardy under such circumstance, and our Rules of Court
cannot be construed to recognize the existence of a condition where such condition in reality does not exist. General
terms of a statute or regulation should be so limited in their application as not to lead to injustice, oppression, or an
absurd consequence. It will always, therefore, be presumed that exceptions have been intended to their language
which would avoid results of this character. (In re Allen, 2 Phil., 641.)
When the Rules of Court were drafted, there was absolutely no intention of abandoning the ruling laid down in the
Diaz case, and the proof of this is that although the said Rules were approved on December 1939, yet on January 30,
1940, this Court decided the Espino case reiterating therein the Diaz doctrine. Had that doctrine been abandoned
deliberately by the Rules of Court as being unwise, unjust or obnoxious, logically it would have likewise been
repudiated in the Espino case by reason if consistency and as a matter of justice to the accused, who should in
consequence have been acquitted instead of being sentenced to a heavy penalty upon the basis of a doctrine that
had already been found to be wrong. There was absolutely no reason to preclude this Court from repealing the
doctrine in the Espino case, for as a mere doctrine it could be repealed at any time in the decision of any case where
it is invoked, is a clear proof that the mind of the Court, even after the approval of the Rules, was not against but in
favor of said doctrine.
For these reasons we expressly repeal the ruling laid down in People vs. Tarok, 73 Phil., 260, as followed in People
vs. Villasis, 46 Off. Gaz. (Supp. to No. 1), p. 268. Such ruling is not only contrary to the real meaning of "double
jeopardy" as intended by the Constitution and by the Rules of Court but is also obnoxious to the administration of
justice. If, in obedience to the mandate of the law, the prosecuting officer files an information within six hours after the
accused is arrested, and the accused claiming his constitutional right to a speedy trial is immediately arraigned, and
later on new fact supervenes which, together with the facts existing at the time, constitutes a more serious offense,
under the Tarok ruling, no way is open by which the accused may be penalized in proportion to the enormity of his
guilt. Furthermore, such a ruling may open the way to suspicions or charges of conclusion between the prosecuting
officers and the accused, to the grave detriment of public interest and confidence in the administration of justice,
which cannot happen under the Diaz ruling.
Before closing, it is well to observe that when a person who has already suffered his penalty for an offense, is
charged with a new and greater offense under the Diaz doctrine herein reiterated, said penalty may be credited to
him in case of conviction for the second offense.
For all the foregoing, the petition is denied, and the respondent court may proceed to the trial of the criminal case
under the amended information. Without costs.
Ozaeta, Pablo, Padilla, Tuason, Montemayor and Reyes, JJ., concur.

Separate Opinions
BENGZON, J., concurring and dissenting:
I agree that People vs. Tarok and People vs. Villasis should be overruled. But I submit that the effect of such
overruling should be prospective, in the sense that it should not affect the herein petitioner who has relied thereon in
presenting his case. (Moncado vs. Tribunal del Pueblo, 45 Off. Gaz., p. 2850.)

Courts are empowered, under the constitutional principle of judicial

review, to arbitrate disputes between the legislative and executive
branches of government on the proper constitutional parameters of
power.60 This is the fair and workable solution implicit in the
constitutional allocation of powers among the three branches of
government. The judicial filter helps assure that the particularities
of each case would ultimately govern, rather than any overarching
principle unduly inclined towards one branch of government at the
expense of the other. The procedure may not move as
expeditiously as some may desire, yet it ensures thorough
deliberation of all relevant and cognizable issues before one
branch is compelled to yield to the other. Moreover, judicial review
does not preclude the legislative and executive branches from
negotiating a mutually acceptable solution to the impasse. After all,
the two branches, exercising as they do functions and
responsibilities that are political in nature, are free to smooth over
the thorns in their relationship with a salve of their own choosing.
EN BANC
G.R. No. 170165 August 15, 2006
B/GEN. (RET.) FRANCISCO V. GUDANI AND LT. COL. ALEXANDER F. BALUTAN Petitioners,
vs.
LT./GEN. GENEROSO S. SENGA CORONA, AS CHIEF OF STAFF OF THE CARPIO-MORALES, ARMED
FORCES OF THE CALLEJO, SR., PHILIPPINES, COL. GILBERTO AZCUNA, JOSE C. ROA AS THE PRE-
TRIAL TINGA, INVESTIGATING OFFICER, THE CHICO-NAZARIO, PROVOST MARSHALL GENERAL
GARCIA, and OF THE ARMED FORCES OF THE PHILIPPINES AND THE GENERAL COURT-
MARTIAL, Respondents.
DECISION
TINGA, J.:
A most dangerous general proposition is foisted on the Court — that soldiers who defy orders of their superior
officers are exempt
from the strictures of military law and discipline if such defiance is predicated on an act otherwise valid under
civilian law. Obedience and deference to the military chain of command and the President as commander-in-
chief are the cornerstones of a professional military in the firm cusp of civilian control. These values of
obedience and deference expected of military officers are content-neutral, beyond the sway of the officer’s own
sense of what is prudent or rash, or more elementally, of right or wrong. A self-righteous military invites itself as
the scoundrel’s activist solution to the "ills" of participatory democracy.
Petitioners seek the annulment of a directive from President Gloria Macapagal-Arroyo1 enjoining them and
other military officers from testifying before Congress without the President’s consent. Petitioners also pray for
injunctive relief against a pending preliminary investigation against them, in preparation for possible court-
martial proceedings, initiated within the military justice system in connection with petitioners’ violation of the
aforementioned directive.
The Court is cognizant that petitioners, in their defense, invoke weighty constitutional principles that center on
fundamental freedoms enshrined in the Bill of Rights. Although these concerns will not be
addressed to the satisfaction of petitioners, the Court recognizes these values as of paramount importance to
our civil society, even if not determinative of the resolution of this petition. Had the relevant issue before us
been the right of the Senate to compel the testimony of petitioners, the constitutional questions raised by them
would have come to fore. Such a scenario could have very well been presented to the Court in such manner,
without the petitioners having had to violate a direct order from their commanding officer. Instead, the Court has
to resolve whether petitioners may be subjected to military discipline on account of their defiance of a direct
order of the AFP Chief of Staff.
The solicited writs of certiorari and prohibition do not avail; the petition must be denied.
I.
The petitioners are high-ranking officers of the Armed Forces of the Philippines (AFP). Both petitioners,
Brigadier General Francisco Gudani (Gen. Gudani) and Lieutenant Colonel Alexander Balutan (Col. Balutan),
belonged to the Philippine Marines. At the time of the subject incidents, both Gen. Gudani and Col. Balutan
were assigned to the Philippine Military Academy (PMA) in Baguio City, the former as the PMA Assistant
Superintendent, and the latter as the Assistant Commandant of Cadets.2
On 22 September 2005, Senator Rodolfo Biazon (Sen. Biazon) invited several senior officers of the AFP to
appear at a public hearing before the Senate Committee on National Defense and Security (Senate
Committee) scheduled on 28 September 2005. The hearing was scheduled after topics concerning the conduct
of the 2004 elections emerged in the public eye, particularly allegations of massive cheating and the surfacing
of copies of an audio excerpt purportedly of a phone conversation between President Gloria Macapagal Arroyo
and an official of the Commission on Elections (COMELEC) widely reputed as then COMELEC Commissioner
Virgilio Garcillano. At the time of the 2004 elections, Gen. Gudani had been designated as commander, and
Col. Balutan a member, of "Joint Task Force Ranao" by the AFP Southern Command. "Joint Task Force
Ranao" was tasked with the maintenance of peace and order during the 2004 elections in the provinces of
Lanao del Norte and Lanao del Sur.3 `
Gen. Gudani, Col. Balutan, and AFP Chief of Staff Lieutenant General Generoso Senga (Gen. Senga) were
among the several AFP officers who received a letter invitation from Sen. Biazon to attend the 28 September
2005 hearing. On 23 September 2005, Gen. Senga replied through a letter to Sen. Biazon that he would be
unable to attend the hearing due to a previous commitment in Brunei, but he nonetheless "directed other
officers from the AFP who were invited to attend the hearing."4
On 26 September 2005, the Office of the Chief of Staff of the AFP issued a Memorandum addressed to the
Superintendent of the PMA Gen. Cristolito P. Baloing (Gen. Baloing). It was signed by Lt. Col. Hernando DCA
Iriberri in behalf of Gen. Senga.5 Noting that Gen. Gudani and Col. Balutan had been invited to attend the
Senate Committee hearing on 28 September 2005, the Memorandum directed the two officers to attend the
hearing.6 Conformably, Gen. Gudani and Col. Balutan filed their respective requests for travel authority
addressed to the PMA Superintendent.
On 27 September 2005, Gen. Senga wrote a letter to Sen. Biazon, requesting the postponement of the hearing
scheduled for the following day, since the AFP Chief of Staff was himself unable to attend said hearing, and
that some of the invited officers also could not attend as they were "attending to other urgent operational
matters." By this time, both Gen. Gudani and Col. Balutan had already departed Baguio for Manila to attend the
hearing.
Then on the evening of 27 September 2005, at around 10:10 p.m., a message was transmitted to the PMA
Superintendent from the office of Gen. Senga, stating as follows:
PER INSTRUCTION OF HER EXCELLENCY PGMA, NO AFP PERSONNEL SHALL APPEAR
BEFORE ANY CONGRESSIONAL OR SENATE HEARING WITHOUT HER APPROVAL. INFORM
BGEN FRANCISCO F GUDANI AFP AND LTC ALEXANDER BALUTAN PA (GSC) ACCORDINGLY. 7
The following day, Gen. Senga sent another letter to Sen. Biazon, this time informing the senator that "no
approval has been granted by the President to any AFP officer to appear" before the hearing scheduled on that
day. Nonetheless, both Gen. Gudani and Col. Balutan were present as the hearing started, and they both
testified as to the conduct of the 2004 elections.
The Office of the Solicitor General (OSG), representing the respondents before this Court, has offered
additional information surrounding the testimony of Gen. Gudani and Col. Balutan. The OSG manifests that the
couriers of the AFP Command Center had attempted to deliver the radio message to Gen. Gudani’s residence
in a subdivision in Parañaque City late in the night of 27 September 2005, but they were not permitted entry by
the subdivision guards. The next day, 28 September 2005, shortly before the start of the hearing, a copy of
Gen. Senga’s letter to Sen. Biazon sent earlier that day was handed at the Senate by Commodore Amable B.
Tolentino of the AFP Office for Legislative Affairs to Gen. Gudani, who replied that he already had a copy.
Further, Gen. Senga called Commodore Tolentino on the latter’s cell phone and asked to talk to Gen. Gudani,
but Gen. Gudani refused. In response, Gen. Senga instructed Commodore Tolentino to inform Gen. Gudani
that "it was an order," yet Gen. Gudani still refused to take Gen. Senga’s call.8
A few hours after Gen. Gudani and Col. Balutan had concluded their testimony, the office of Gen. Senga issued
a statement which noted that the two had appeared before the Senate Committee "in spite of the fact that a
guidance has been given that a Presidential approval should be sought prior to such an appearance;" that such
directive was "in keeping with the time[-]honored principle of the Chain of Command;" and that the two officers
"disobeyed a legal order, in violation of A[rticles of] W[ar] 65 (Willfully Disobeying Superior Officer), hence they
will be subjected to General Court Martial proceedings x x x" Both Gen. Gudani and Col. Balutan were likewise
relieved of their assignments then.9
On the very day of the hearing, 28 September 2005, President Gloria-Macapagal-Arroyo issued Executive
Order No. 464 (E.O. 464). The OSG notes that the E.O. "enjoined officials of the executive department
including the military establishment from appearing in any legislative inquiry without her approval."10 This Court
subsequently ruled on the constitutionality of the said executive order in Senate v. Ermita.11 The relevance of
E.O. 464 and Senate to the present petition shall be discussed forthwith.
In the meantime, on 30 September 2005, petitioners were directed by General Senga, through Col. Henry A.
Galarpe of the AFP Provost Marshal General, to appear before the Office of the Provost Marshal General
(OPMG) on 3 October 2005 for investigation. During their appearance before Col. Galarpe, both petitioners
invoked their right to remain silent.12 The following day, Gen. Gudani was compulsorily retired from military
service, having reached the age of 56.13
In an Investigation Report dated 6 October 2005, the OPMG recommended that petitioners be charged with
violation of Article of War 65, on willfully disobeying a superior officer, in relation to Article of War 97, on
conduct prejudicial to the good order and military discipline.14 As recommended, the case was referred to a Pre-
Trial Investigation Officer (PTIO) preparatory to trial by the General Court Martial (GCM).15 Consequently, on 24
October 2005, petitioners were separately served with Orders respectively addressed to them and signed by
respondent Col. Gilbert Jose C. Roa, the Pre-Trial Investigating Officer of the PTIO. The Orders directed
petitioners to appear in person before Col. Roa at the Pre-Trial Investigation of the Charges for violation of
Articles 6516 and 9717 of Commonwealth Act No. 408,18 and to submit their counter-affidavits and affidavits of
witnesses at the Office of the Judge Advocate General.19 The Orders were accompanied by respective charge
sheets against petitioners, accusing them of violating Articles of War 65 and 97.
It was from these premises that the present petition for certiorari and prohibition was filed, particularly seeking
that (1) the order of President Arroyo coursed through Gen. Senga preventing petitioners from testifying before
Congress without her prior approval be declared unconstitutional; (2) the charges stated in the charge sheets
against petitioners be quashed; and (3) Gen. Senga, Col. Galarpe, Col. Roa, and their successors-in-interest or
persons acting for and on their behalf or orders, be permanently enjoined from proceeding against petitioners,
as a consequence of their having testified before the Senate on 28 September 2005.20
Petitioners characterize the directive from President Arroyo requiring her prior approval before any AFP
personnel appear before Congress as a "gag order," which violates the principle of separation of powers in
government as it interferes with the investigation of the Senate Committee conducted in aid of legislation. They
also equate the "gag order" with culpable violation of the Constitution, particularly in relation to the public’s
constitutional right to information and transparency in matters of public concern. Plaintively, petitioners claim
that "the Filipino people have every right to hear the [petitioners’] testimonies," and even if the "gag order" were
unconstitutional, it still was tantamount to "the crime of obstruction of justice." Petitioners further argue that
there was no law prohibiting them from testifying before the Senate, and in fact, they were appearing in
obeisance to the authority of Congress to conduct inquiries in aid of legislation.
Finally, it is stressed in the petition that Gen. Gudani was no longer subject to military jurisdiction on account of
his compulsory retirement on 4 October 2005. It is pointed out that Article 2, Title I of the Articles of War defines
persons subject to military law as "all officers and soldiers in the active service" of the AFP.
II.
We first proceed to define the proper litigable issues. Notably, the guilt or innocence of petitioners in violating
Articles 65 and 97 of the Articles of War is not an issue before this Court, especially considering that per
records, petitioners have not yet been subjected to court martial proceedings. Owing to the absence of such
proceedings, the correct inquiry should be limited to whether respondents could properly initiate such
proceedings preparatory to a formal court-martial, such as the aforementioned preliminary investigation, on the
basis of petitioners’ acts surrounding their testimony before the Senate on 28 September 2005. Yet this Court,
consistent with the principle that it is not a trier of facts at first instance, 21 is averse to making any authoritative
findings of fact, for that function is first for the court-martial court to fulfill.
Thus, we limit ourselves to those facts that are not controverted before the Court, having been commonly
alleged by petitioners and the OSG (for respondents). Petitioners were called by the Senate Committee to
testify in its 28 September 2005 hearing. Petitioners attended such hearing and testified before the Committee,
despite the fact that the day before, there was an order from Gen. Senga (which in turn was sourced "per
instruction" from President Arroyo) prohibiting them from testifying without the prior approval of the President.
Petitioners do not precisely admit before this Court that they had learned of such order prior to their testimony,
although the OSG asserts that at the very least, Gen. Gudani already knew of such order before he
testified.22 Yet while this fact may be ultimately material in the court-martial proceedings, it is not determinative
of this petition, which as stated earlier, does not proffer as an issue whether petitioners are guilty of violating
the Articles of War.
What the Court has to consider though is whether the violation of the aforementioned order of Gen. Senga,
which emanated from the President, could lead to any investigation for court-martial of petitioners. It has to be
acknowledged as a general principle23 that AFP personnel of whatever rank are liable under military law for
violating a direct order of an officer superior in rank. Whether petitioners did violate such an order is not for the
Court to decide, but it will be necessary to assume, for the purposes of this petition, that petitioners did so.
III.
Preliminarily, we must discuss the effect of E.O. 464 and the Court’s ruling in Senate on the present
petition. Notably, it is not alleged that petitioners were in any way called to task for violating E.O. 464,
but instead, they were charged for violating the direct order of Gen. Senga not to appear before the
Senate Committee, an order that stands independent of the executive order. Distinctions are called for,
since Section 2(b) of E.O. 464 listed "generals and flag officers of the Armed Forces of the Philippines and
such other officers who in the judgment of the Chief of Staff are covered by the executive privilege," as among
those public officials required in Section 3 of E.O. 464 "to secure prior consent of the President prior to
appearing before either House of Congress." The Court in Senate declared both Section 2(b) and Section 3
void,24 and the impression may have been left following Senate that it settled as doctrine, that the President is
prohibited from requiring military personnel from attending congressional hearings without having first secured
prior presidential consent. That impression is wrong.
Senate turned on the nature of executive privilege, a presidential prerogative which is encumbered by
significant limitations. Insofar as E.O. 464 compelled officials of the executive branch to seek prior presidential
approval before appearing before Congress, the notion of executive control also comes into
consideration.25 However, the ability of the President to require a military official to secure prior consent before
appearing before Congress pertains to a wholly different and independent specie of presidential authority—the
commander-in-chief powers of the President. By tradition and jurisprudence, the commander-in-chief powers of
the President are not encumbered by the same degree of restriction as that which may attach to executive
privilege or executive control.
During the deliberations in Senate, the Court was very well aware of the pendency of this petition as well as the
issues raised herein. The decision in Senate was rendered with the comfort that the nullification of portions of
E.O. 464 would bear no impact on the present petition since petitioners herein were not called to task for
violating the executive order. Moreover, the Court was then cognizant that Senate and this case would
ultimately hinge on disparate legal issues. Relevantly, Senate purposely did not touch upon or rule on the
faculty of the President, under the aegis of the commander-in-chief powers26 to require military officials from
securing prior consent before appearing before Congress. The pertinent factors in considering that question are
markedly outside of those which did become relevant in adjudicating the issues raised in Senate. It is in this
petition that those factors come into play.
At this point, we wish to dispose of another peripheral issue before we strike at the heart of the matter. General
Gudani argues that he can no longer fall within the jurisdiction of the court-martial, considering his retirement
last 4 October 2005. He cites Article 2, Title I of Commonwealth Act No. 408, which defines persons subject to
military law as, among others, "all officers and soldiers in the active service of the [AFP]," and points out that he
is no longer in the active service.
This point was settled against Gen. Gudani’s position in Abadilla v. Ramos,27 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.28
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 29
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, "[a]n 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"30 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.
IV.
We now turn to the central issues.
Petitioners wish to see annulled the "gag order" that required them to secure presidential consent prior to their
appearance before the Senate, claiming that it violates the constitutional right to information and transparency
in matters of public concern; or if not, is tantamount at least to the criminal acts of obstruction of justice and
grave coercion. However, the proper perspective from which to consider this issue entails the examination of
the basis and authority of the President to issue such an order in the first place to members of the AFP and the
determination of whether such an order is subject to any limitations.
The vitality of the tenet that the President is the commander-in-chief of the Armed Forces is most crucial to the
democratic way of life, to civilian supremacy over the military, and to the general stability of our representative
system of government. The Constitution reposes final authority, control and supervision of the AFP to the
President, a civilian who is not a member of the armed forces, and whose duties as commander-in-chief
represent only a part of the organic duties imposed upon the office, the other functions being clearly civil in
nature.31 Civilian supremacy over the military also countermands the notion that the military may bypass civilian
authorities, such as civil courts, on matters such as conducting warrantless searches and seizures.32
Pursuant to the maintenance of civilian supremacy over the military, the Constitution has allocated specific
roles to the legislative and executive branches of government in relation to military affairs. Military
appropriations, as with all other appropriations, are determined by Congress, as is the power to declare the
existence of a state of war.33 Congress is also empowered to revoke a proclamation of martial law or the
suspension of the writ of habeas corpus.34 The approval of the Commission on Appointments is also required
before the President can promote military officers from the rank of colonel or naval captain. 35 Otherwise, on the
particulars of civilian dominance and administration over the military, the Constitution is silent, except for the
commander-in-chief clause which is fertile in meaning and
implication as to whatever inherent martial authority the President may possess.36
The commander-in-chief provision in the Constitution is denominated as Section 18, Article VII, which begins
with the simple declaration that "[t]he President shall be the Commander-in-Chief of all armed forces of the
Philippines x x x"37 Outside explicit constitutional limitations, such as those found in Section 5, Article XVI, the
commander-in-chief clause vests on the President, as commander-in-chief, absolute authority over the persons
and actions of the members of the armed forces. Such authority includes the ability of the President to restrict
the travel, movement and speech of military officers, activities which may otherwise be sanctioned under
civilian law.
Reference to Kapunan, Jr. v. De Villa38 is useful in this regard. Lt. Col. Kapunan was ordered confined under
"house arrest" by then Chief of Staff (later President) Gen. Fidel Ramos. Kapunan was also ordered, as a
condition for his house arrest, that he may not issue any press statements or give any press conference during
his period of detention. The Court unanimously upheld such restrictions, noting:
[T]he Court is of the view that such is justified by the requirements of military discipline. It cannot be gainsaid
that certain liberties of persons in the military service, including the freedom of speech, may be
circumscribed by rules of military discipline. Thus, to a certain degree, individual rights may be
curtailed, because the effectiveness of the military in fulfilling its duties under the law depends to a
large extent on the maintenance of discipline within its ranks. Hence, lawful orders must be followed
without question and rules must be faithfully complied with, irrespective of a soldier's personal views
on the matter. It is from this viewpoint that the restrictions imposed on petitioner Kapunan, an officer in the
AFP, have to be considered.39
Any good soldier, or indeed any ROTC cadet, can attest to the fact that the military way of life circumscribes
several of the cherished freedoms of civilian life. It is part and parcel of the military package. Those who cannot
abide by these limitations normally do not pursue a military career and instead find satisfaction in other fields;
and in fact many of those discharged from the service are inspired in their later careers precisely by their
rebellion against the regimentation of military life. Inability or unwillingness to cope with military discipline is not
a stain on character, for the military mode is a highly idiosyncratic path which persons are not generally
conscripted into, but volunteer themselves to be part of. But for those who do make the choice to be a soldier,
significant concessions to personal freedoms are expected. After all, if need be, the men and women of the
armed forces may be commanded upon to die for country, even against their personal inclinations.
It may be so that military culture is a remnant of a less democratic era, yet it has been fully integrated into the
democratic system of governance. The constitutional role of the armed forces is as protector of the people and
of the State.40 Towards this end, the military must insist upon a respect for duty and a discipline without
counterpart in civilian life.41 The laws and traditions governing that discipline have a long history; but they are
founded on unique military exigencies as powerful now as in the past.42 In the end, it must be borne in mind that
the armed forces has a distinct subculture with unique needs, a specialized society separate from civilian
society. 43 In the elegant prose of the eminent British military historian, John Keegan:
[Warriors who fight wars have] values and skills [which] are not those of politicians and diplomats. They are
those of a world apart, a very ancient world, which exists in parallel with the everyday world but does not
belong to it. Both worlds change over time, and the warrior world adopts in step to the civilian. It follows it,
however, at a distance. The distance can never be closed, for the culture of the warrior can never be that of
civilization itself….44
Critical to military discipline is obeisance to the military chain of command. Willful disobedience of a superior
officer is punishable by court-martial under Article 65 of the Articles of War.45 "An individual soldier is not free to
ignore the lawful orders or duties assigned by his immediate superiors. For there would be an end of all
discipline if the seaman and marines on board a ship of war [or soldiers deployed in the field], on a distant
service, were permitted to act upon their own opinion of their rights [or their opinion of the
President’s intent], and to throw off the authority of the commander whenever they supposed it to be
unlawfully exercised."46
Further traditional restrictions on members of the armed forces are those imposed on free speech and
mobility. Kapunan is ample precedent in justifying that a soldier may be restrained by a superior officer from
1âwphi1

speaking out on certain matters. As a general rule, the discretion of a military officer to restrain the speech of a
soldier under his/her command will be accorded deference, with minimal regard if at all to the reason for such
restraint. It is integral to military discipline that the soldier’s speech be with the consent and approval of the
military commander.
The necessity of upholding the ability to restrain speech becomes even more imperative if the soldier desires to
speak freely on political matters. The Constitution requires that "[t]he armed forces shall be insulated from
partisan politics," and that ‘[n]o member of the military shall engage directly or indirectly in any partisan political
activity, except to vote."47 Certainly, no constitutional provision or military indoctrination will eliminate a soldier’s
ability to form a personal political opinion, yet it is vital that such opinions be kept out of the public eye. For one,
political belief is a potential source of discord among people, and a military torn by political strife is incapable of
fulfilling its constitutional function as protectors of the people and of the State. For another, it is ruinous to
military discipline to foment an atmosphere that promotes an active dislike of or dissent against the President,
the commander-in-chief of the armed forces. Soldiers are constitutionally obliged to obey a President they may
dislike or distrust. This fundamental principle averts the country from going the way of banana republics.
Parenthetically, it must be said that the Court is well aware that our country’s recent past is marked by regime
changes wherein active military dissent from the chain of command formed a key, though not exclusive,
element. The Court is not blind to history, yet it is a judge not of history but of the Constitution. The
Constitution, and indeed our modern democratic order, frown in no uncertain terms on a politicized military,
informed as they are on the trauma of absolute martial rule. Our history might imply that a political military is
part of the natural order, but this view cannot be affirmed by the legal order. The evolutionary path of our young
democracy necessitates a reorientation from this view, reliant as our socio-political culture has become on it. At
the same time, evolution mandates a similar demand that our system of governance be more responsive to the
needs and aspirations of the citizenry, so as to avoid an environment vulnerable to a military apparatus able at
will to exert an undue influence in our polity.
Of possibly less gravitas, but of equal importance, is the principle that mobility of travel is another necessary
restriction on members of the military. A soldier cannot leave his/her post without the consent of the
commanding officer. The reasons are self-evident. The commanding officer has to be aware at all times of the
location of the troops under command, so as to be able to appropriately respond to any exigencies. For the
same reason, commanding officers have to be able to restrict the movement or travel of their soldiers, if in their
judgment, their presence at place of call of duty is necessary. At times, this may lead to unsentimental, painful
consequences, such as a soldier being denied permission to witness the birth of his first-born, or to attend the
funeral of a parent. Yet again, military life calls for considerable personal sacrifices during the period of
conscription, wherein the higher duty is not to self but to country.
Indeed, the military practice is to require a soldier to obtain permission from the commanding officer before
he/she may leave his destination. A soldier who goes from the properly appointed place of duty or absents from
his/her command, guard, quarters, station, or camp without proper leave is subject to punishment by court-
martial.48 It is even clear from the record that petitioners had actually requested for travel authority from the
PMA in Baguio City to Manila, to attend the Senate Hearing.49 Even petitioners are well aware that it was
necessary for them to obtain permission from their superiors before they could travel to Manila to attend the
Senate Hearing.
It is clear that the basic position of petitioners impinges on these fundamental principles we have discussed.
They seek to be exempted from military justice for having traveled to the Senate to testify before the Senate
Committee against the express orders of Gen. Senga, the AFP Chief of Staff. If petitioners’ position is affirmed,
a considerable exception would be carved from the unimpeachable right of military officers to restrict the
speech and movement of their juniors. The ruinous consequences to the chain of command and military
discipline simply cannot warrant the Court’s imprimatur on petitioner’s position.
V.
Still, it would be highly myopic on our part to resolve the issue solely on generalities surrounding military
discipline. After all, petitioners seek to impress on us that their acts are justified as they were responding to an
invitation from the Philippine Senate, a component of the legislative branch of government. At the same time,
the order for them not to testify ultimately came from the President, the head of the executive branch of
government and the commander-in-chief of the armed forces.
Thus, we have to consider the question: may the President prevent a member of the armed forces from
testifying before a legislative inquiry? We hold that the President has constitutional authority to do so, by virtue
of her power as commander-in-chief, and that as a consequence a military officer who defies such injunction is
liable under military justice. At the same time, we also hold that any chamber of Congress which seeks the
appearance before it of a military officer against the consent of the President has adequate remedies under law
to compel such attendance. Any military official whom Congress summons to testify before it may be compelled
to do so by the President. If the President is not so inclined, the President may be commanded by judicial order
to compel the attendance of the military officer. Final judicial orders have the force of the law of the land which
the President has the duty to faithfully execute.50
Explication of these principles is in order.
As earlier noted, we ruled in Senate that the President may not issue a blanket requirement of prior consent on
executive officials summoned by the legislature to attend a congressional hearing. In doing so, the Court
recognized the considerable limitations on executive privilege, and affirmed that the privilege must be formally
invoked on specified grounds. However, the ability of the President to prevent military officers from
testifying before Congress does not turn on executive privilege, but on the Chief Executive’s power as
commander-in-chief to control the actions and speech of members of the armed forces. The
President’s prerogatives as commander-in-chief are not hampered by the same limitations as in
executive privilege.
Our ruling that the President could, as a general rule, require military officers to seek presidential approval
before appearing before Congress is based foremost on the notion that a contrary rule unduly diminishes the
prerogatives of the President as commander-in-chief. Congress holds significant control over the armed forces
in matters such as budget appropriations and the approval of higher-rank promotions,51 yet it is on the
President that the Constitution vests the title as commander-in-chief and all the prerogatives and functions
appertaining to the position. Again, the exigencies of military discipline and the chain of command mandate that
the President’s ability to control the individual members of the armed forces be accorded the utmost respect.
Where a military officer is torn between obeying the President and obeying the Senate, the Court will without
hesitation affirm that the officer has to choose the President. After all, the Constitution prescribes that it is the
President, and not the Senate, who is the commander-in-chief of the armed forces.52
At the same time, the refusal of the President to allow members of the military to appear before Congress is still
subject to judicial relief. The Constitution itself recognizes as one of the legislature’s functions is the conduct of
inquiries in aid of legislation.53 Inasmuch as it is ill-advised for Congress to interfere with the President’s power
as commander-in-chief, it is similarly detrimental for the President to unduly interfere with Congress’s right to
conduct legislative inquiries. The impasse did not come to pass in this petition, since petitioners testified
anyway despite the presidential prohibition. Yet the Court is aware that with its pronouncement today that the
President has the right to require prior consent from members of the armed forces, the clash may soon loom or
actualize.
We believe and hold that our constitutional and legal order sanctions a modality by which members of the
military may be compelled to attend legislative inquiries even if the President desires otherwise, a modality
which does not offend the Chief Executive’s prerogatives as commander-in-chief. The remedy lies with the
courts.
The fact that the executive branch is an equal, coordinate branch of government to the legislative creates a
wrinkle to any basic rule that persons summoned to testify before Congress must do so. There is considerable
interplay between the legislative and executive branches, informed by due deference and respect as to their
various constitutional functions. Reciprocal courtesy idealizes this relationship; hence, it is only as a last resort
that one branch seeks to compel the other to a particular mode of behavior. The judiciary, the third coordinate
branch of government, does not enjoy a similar dynamic with either the legislative or executive branches.
Whatever weakness inheres on judicial power due to its inability to originate national policies and legislation,
such is balanced by the fact that it is the branch empowered by the Constitution to compel obeisance to its
rulings by the other branches of government.
As evidenced by Arnault v. Nazareno54 and Bengzon v. Senate Blue Ribbon Committee,55 among others, the
Court has not shirked from reviewing the exercise by Congress of its power of legislative
inquiry.56 Arnault recognized that the legislative power of inquiry and the process to enforce it, "is an essential
and appropriate auxiliary to the legislative function."57 On the other hand, Bengzon acknowledged that the
power of both houses of Congress to conduct inquiries in aid of legislation is not "absolute or unlimited", and its
exercise is circumscribed by Section 21, Article VI of the Constitution. 58 From these premises, the Court
enjoined the Senate Blue Ribbon Committee from requiring the petitioners in Bengzon from testifying and
producing evidence before the committee, holding that the inquiry in question did not involve any intended
legislation.
Senate affirmed both the Arnault and Bengzon rulings. It elucidated on the constitutional scope and limitations
on the constitutional power of congressional inquiry. Thus:
As discussed in Arnault, the power of inquiry, "with process to enforce it," is grounded on the necessity of
information in the legislative process. If the information possessed by executive officials on the operation of
their offices is necessary for wise legislation on that subject, by parity of reasoning, Congress has the right to
that information and the power to compel the disclosure thereof.
As evidenced by the American experience during the so-called "McCarthy era", however, the right of Congress
to conduct inquirites in aid of legislation is, in theory, no less susceptible to abuse than executive or judicial
power. It may thus be subjected to judicial review pursuant to the Court’s certiorari powers under Section 1,
Article VIII of the Constitution.
For one, as noted in Bengzon v. Senate Blue Ribbon Committee, the inquiry itself might not properly be in aid
of legislation, and thus beyond the constitutional power of Congress. Such inquiry could not usurp judicial
functions. Parenthetically, one possible way for Congress to avoid such result as occurred in Bengzon is to
indicate in its invitations to the public officials concerned, or to any person for that matter, the possible needed
statute which prompted the need for the inquiry. Given such statement in its invitations, along with the usual
indication of the subject of inquiry and the questions relative to and in furtherance thereof, there would be less
room for speculation on the part of the person invited on whether the inquiry is in aid of legislation.
Section 21, Article VI likewise establishes critical safeguards that proscribe the legislative power of inquiry. The
provision requires that the inquiry be done in accordance with the Senate or House’s duly published rules of
procedure, necessarily implying the constitutional infirmity of an inquiry conducted without duly published rules
of procedure. Section 21 also mandates that the rights of persons appearing in or affected by such inquiries be
respected, an imposition that obligates Congress to adhere to the guarantees in the Bill of Rights.
These abuses are, of course, remediable before the courts, upon the proper suit filed by the persons affected,
even if they belong to the executive branch. Nonetheless, there may be exceptional circumstances… wherein a
clear pattern of abuse of the legislative power of inquiry might be established, resulting in palpable violations of
the rights guaranteed to members of the executive department under the Bill of Rights. In such instances,
depending on the particulars of each case, attempts by the Executive Branch to forestall these abuses may be
accorded judicial sanction59 .
In Senate, the Court ruled that the President could not impose a blanket prohibition barring executive officials
from testifying before Congress without the President’s consent notwithstanding the invocation of executive
privilege to justify such prohibition. The Court did not rule that the power to conduct legislative inquiry ipso facto
superseded the claim of executive privilege, acknowledging instead that the viability of executive privilege
stood on a case to case basis. Should neither branch yield to the other branch’s assertion, the constitutional
recourse is to the courts, as the final arbiter if the dispute. It is only the courts that can compel, with
conclusiveness, attendance or non-attendance in legislative inquiries.
Following these principles, it is clear that if the President or the Chief of Staff refuses to allow a member of the
AFP to appear before Congress, the legislative body seeking such testimony may seek judicial relief to compel
the attendance. Such judicial action should be directed at the heads of the executive branch or the armed
forces, the persons who wield authority and control over the actions of the officers concerned. The legislative
purpose of such testimony, as well as any defenses against the same — whether grounded on executive
privilege, national security or similar concerns — would be accorded due judicial evaluation. All the
constitutional considerations pertinent to either branch of government may be raised, assessed, and ultimately
weighed against each other. And once the courts speak with finality, both branches of government have no
option but to comply with the decision of the courts, whether the effect of the decision is to their liking or
disfavor.
Courts are empowered, under the constitutional principle of judicial review, to arbitrate disputes between the
legislative and executive branches of government on the proper constitutional parameters of power. 60 This is
the fair and workable solution implicit in the constitutional allocation of powers among the three branches of
government. The judicial filter helps assure that the particularities of each case would ultimately govern,
rather than any overarching principle unduly inclined towards one branch of government at the expense of
the other. The procedure may not move as expeditiously as some may desire, yet it ensures thorough
deliberation of all relevant and cognizable issues before one branch is compelled to yield to the other.
Moreover, judicial review does not preclude the legislative and executive branches from negotiating a
mutually acceptable solution to the impasse. After all, the two branches, exercising as they do functions and
responsibilities that are political in nature, are free to smooth over the thorns in their relationship with a
salve of their own choosing.
And if emphasis be needed, if the courts so rule, the duty falls on the shoulders of the President, as
commander-in-chief, to authorize the appearance of the military officers before Congress. Even if the
President has earlier disagreed with the notion of officers appearing before the legislature to testify,
the Chief Executive is nonetheless obliged to comply with the final orders of the courts.
Petitioners have presented several issues relating to the tenability or wisdom of the President’s order on them
and other military officers not to testify before Congress without the President’s consent. Yet these issues
ultimately detract from the main point — that they testified before the Senate despite an order from their
commanding officer and their commander-in-chief for them not to do so,61 in contravention of the traditions of
military discipline which we affirm today. The issues raised by petitioners could have very well been raised and
1âwphi 1
properly adjudicated if the proper procedure was observed. Petitioners could have been appropriately allowed
to testify before the Senate without having to countermand their Commander-in-chief and superior officer under
the setup we have prescribed.
We consider the other issues raised by petitioners unnecessary to the resolution of this petition.
Petitioners may have been of the honest belief that they were defying a direct order of their Commander-in-
Chief and Commanding General in obeisance to a paramount idea formed within their consciences, which
could not be lightly ignored. Still, the Court, in turn, is guided by the superlative principle that is the Constitution,
the embodiment of the national conscience. The Constitution simply does not permit the infraction which
petitioners have allegedly committed, and moreover, provides for an orderly manner by which the same result
could have been achieved without offending constitutional principles.
WHEREFORE, the petition is DENIED. No pronouncement as to costs.
SO ORDERED.
DANTE O. TINGA
Associate Justice
WE CONCUR:
ARTEMIO V. PANGANIBAN
Chief Justice
REYNATO S. PUNO LEONARDO A. QUISUMBING
Associate Justice Associate Justice

CONSUELO YNARES-SANTIAGO ANGELINA SANDOVAL-GUTIERREZ

Associate Justice Associate Justice

ANTONIO T. CARPIO MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice Associate Justice

(on leave)
CONCHITA CARPIO MORALES
RENATO C. CORONA
Associate Justice
Associate Justice

ROMEO J. CALLEJO, SR. ADOLFO S. AZCUNA

Associate Justice Associate Justice

MINITA V. CHICO-NAZARIO CANCIO C. GARCIA

Associate Justice Associate Justice

EN BANC G.R. No. 203766 April 2, 2013 ATONG PAGLAUM, INC.,

represented by its President, Mr. Alan Igot, Petitioner, vs.
COMMISSION ON ELECTIONS, Respondent.
the COMELEC shall adhere to the following parameters:
1. Three different groups may participate in the party-
list system: (1) national parties or organizations, (2)
regional parties or organizations, and (3) sectoral
parties or organizations.
2. National parties or organizations and regional
parties or organizations do not need to organize along
sectoral lines and do not need to represent any
"marginalized and underrepresented" sector.
3. Political parties can participate in party-list
elections provided they register under the party-
list system and do not field candidates in
legislative district elections. A political party,
whether major or not, that fields candidates in
legislative district elections can participate in
party-list elections only through its sectoral wing
that can separately register under the party-list
system. The sectoral wing is by itself an
independent sectoral party, and is linked to a
political party through a coalition.
4. Sectoral parties or organizations may either be
"marginalized and underrepresented" or lacking in
"well-defined political constituencies." It is enough that
their principal advocacy pertains to the special
interest and concerns of their sector. The sectors that
are "marginalized and underrepresented" include
labor, peasant, fisherfolk, urban poor, indigenous
cultural communities, handicapped, veterans, and
overseas workers. The sectors that lack "well-defined
political constituencies" include professionals, the
elderly, women, and the youth.
5. A majority of the members of sectoral parties or
organizations that represent the "marginalized and
underrepresented" must belong to the "marginalized
and underrepresented" sector they represent.
Similarly, a majority of the members of sectoral
parties or organizations that lack "well-defined political
constituencies" must belong to the sector they
 represent. The nominees of sectoral parties or
organizations that represent the "marginalized and
underrepresented," or that represent those who lack
"well-defined political constituencies," either must
belong to their respective sectors, or must have a
track record of advocacy for their respective sectors.
The nominees of national and regional parties or
organizations must be bona-fide members of such
parties or organizations.
6. National, regional, and sectoral parties or
organizations shall not be disqualified if some of their
nominees are disqualified, provided that they have at
least one nominee who remains qualified.

three levels of tests were developed, which are to be applied in

equal protection cases, depending on the subject matter24
involved: 1. Rational Basis Scrutiny – the traditional test, which
requires "only that government must not impose differences in
treatment except upon some reasonable differentiation fairly
related to the object of regulation." Simply put, it merely demands
that the classification in the statute reasonably relates to the
legislative purpose.25 2. Intermediate Scrutiny – requires that the
classification (means) must serve an important governmental
objective (ends) and is substantially related to the achievement of
such objective. A classification based on sex is the best-
established example of an intermediate level of review.26 3. Strict
Scrutiny – requires that the classification serve a compelling state
interest and is necessary to achieve such interest. This level is
used when suspect classifications or fundamental rights are
involved.27
EN BANC
G.R. No. 179267 June 25, 2013
JESUS C. GARCIA, Petitioner,
vs.
THE HONORABLE RAY ALAN T. DRILON, Presiding Judge, Regional Trial Court-Branch 41, Bacolod
City, and ROSALIE JAYPE-GARCIA, for herself and in behalf of minor children, namely: JO-ANN,
JOSEPH EDUARD, JESSE ANTHONE, all surnamed GARCIA, Respondents.
 CONCURRING OPINION
LEONARDO-DE CASTRO, J.:
I concur with the conclusion reached in the ponencia ably written by the Honorable Estela Perlas-Bernabe.
With due respect, however, I submit that the test to determine an equal protection challenge against the law,
denying statutory remedies to men who are similarly situated as the women who are given differential treatment
in the law, on the basis of sex or gender, should be at the level of intermediate scrutiny or middle-tier judicial
scrutiny rather than the rational basis test used in the ponencia of Justice Bernabe.
This Petition for Review on Certiorari assails: (1) the Decision dated January 24, 2007 of the Court of Appeals
in CA-G.R. CEB-SP No. 01698 dismissing the Petition for Prohibition with Injunction and Temporary
Restraining Order (Petition for Prohibition) which questioned the constitutionality of Republic Act No. 9262,
otherwise known as the "Anti-Violence Against Women and Their Children Act of 2004," and sought a
temporary restraining order and/or injunction to prevent the implementation of the Temporary Protection Order
(TPO) and criminal prosecution of herein petitioner Jesus A. Garcia under the law; and (2) the Resolution dated
August 14, 2007, denying petitioner's Motion for Reconsideration of the said Decision.
At the outset, it should be stressed that the Court of Appeals, in its assailed Decision and Resolution, did not
pass upon the issue of constitutionality of Republic Act No. 9262 and instead dismissed the Petition for
Prohibition on technical grounds, as follows:
1. The constitutional issue was raised for the first time on appeal before the Court of Appeals by
petitioner and not at the earliest opportunity, which should be before the Regional Trial Court (RTC),
Branch 41, Bacolod City, acting as a Family Court, where private respondent Rosalie Garcia, wife of
petitioner, instituted a Petition for Temporary and Permanent Protection Order[s]1 under Republic Act
No. 9262, against her husband, petitioner Jesus C. Garcia; and
2. The constitutionality of Republic Act No. 9262 can only be questioned in a direct action and it cannot
be the subject of a collateral attack in a petition for prohibition, as the inferior court having jurisdiction
on the action may itself determine the constitutionality of the statute, and the latter’s decision on the
matter may be reviewed on appeal and not by a writ of prohibition, as it was held in People v. Vera.2
Hence, the Court of Appeals Decision and Resolution denied due course to the Petition for Prohibition "for
being fraught with fatal technical infirmities" and for not being ripe for judicial review. Nevertheless, four out of
the five issues raised by the petitioner here dealt with the alleged unconstitutionality of Republic Act No. 9262.
More accurately put, however, the Court of Appeals refrained from touching at all those four substantive issues
of constitutionality. The Court of Appeals cannot therefore be faulted for any erroneous ruling on the aforesaid
substantive constitutional issues.
In this instant Petition for Review, the only issue directly in point that can be raised against the Court of Appeals
Decision and Resolution is the first one cited as a ground for the appeal, which I quote:
THE COURT OF APPEALS ERRED IN DISMISSING THE PETITION ON THE THEORY THAT THE ISSUE
OF CONSTITUTIONALITY WAS NOT RAISED AT THE FIRST OPPORTUNITY AND THAT, THE PETITION
WAS A COLLATERAL ATTACK ON THE VALIDITY OF THE LAW.3
Under the circumstances, whether this Court should consider this Petition for Review as a proper occasion to
pass upon the constitutionality of Republic Act No. 9262 shall be a separate subject matter that is tackled
below after the above-quoted first issue is disposed of.
On the Propriety of Raising the Issue of Constitutionality in a Summary Proceeding Before the RTC Designated
as a Family Court
Petitioner assails the Court of Appeals ruling that he should have raised the issue of constitutionality in his
Opposition4 to private respondent’s petition for protective orders pending before the RTC for the following
reasons:
1. The Rules on Violence Against Women and Children (A.M. No. 04-10-11-SC), particularly Section
20 thereof, expressly prohibit him from alleging any counterclaim, cross-claim or third party claim, all of
which are personal to him and therefore with more reason, he cannot impugn the constitutionality of
the law by way of affirmative defense.5
2. Since the proceedings before the Family Court are summary in nature, its limited jurisdiction is
inadequate to tackle the complex issue of constitutionality.6
I agree with Justice Bernabe that the RTC, designated as a Family Court, is vested with jurisdiction to decide
issues of constitutionality of a law, and that the constitutionality of Republic Act No. 9262 can be resolved in a
summary proceeding, in accordance with the rule that the question of constitutionality must be raised at the
earliest opportunity, otherwise it may not be considered on appeal.
Section 20 of A.M. No. 04-10-11-SC, the Rule on Republic Act No. 9262 provides:
Sec. 20. Opposition to Petition. – (a) The respondent may file an opposition to the petition which he himself
shall verify. It must be accompanied by the affidavits of witnesses and shall show cause why a temporary or
permanent protection order should not be issued.
(b) Respondent shall not include in the opposition any counterclaim, cross-claim or third-party complaint, but
any cause of action which could be the subject thereof may be litigated in a separate civil action. (Emphasis
supplied.)
Petitioner cites the above provision, particularly paragraph (b) thereof, as one of his grounds for not challenging
the constitutionality of Republic Act No. 9262 in his Opposition. The error of such reasoning is that it treats "any
cause of action" mentioned in Section 20(b) as distinct from the "counterclaim, cross-claim or third-party
complaint" referred to in the said Section 20(b). On the contrary, the language of said section clearly refers to a
cause of action that is the "subject" of the counterclaim, cross-claim, or third-party complaint, which is barred
and which may be litigated in a separate civil action. The issue of constitutionality is not a "cause of action" that
is a subject of the aforementioned prohibited pleadings. In fact, petitioner admitted that such prohibited
pleadings would allege "claims which are personal to him."7 Hence, Section 20(b) cannot even be invoked as a
basis for filing the separate special civil action of Petition for Prohibition before the Court of Appeals to question
the constitutionality of Republic Act No. 9262.
What obviously escapes petitioner’s understanding is that the contents of the Opposition are not limited to mere
refutations of the allegations in the petition for temporary and permanent protection order. While it is true that
A.M. No. 04-10-11-SC requires the respondent to file an Opposition and not an Answer,8 it does not prevent
petitioner from challenging the constitutionality of Republic Act No. 9262 in such Opposition. In fact, Section
20(a) directs petitioner to state in his Opposition why a temporary or permanent protection order should not be
issued against him. This means that petitioner should have raised in his Opposition all defenses available to
him, which may be either negative or affirmative. Section 5(b), Rule 6 of the Rules of Court define negative and
affirmative defenses as follows:
(a) A negative defense is the specific denial of the material fact or facts alleged in the pleading of the
claimant essential to his cause or causes of action.
(b) An affirmative defense is an allegation of a new matter which, while hypothetically admitting the
material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by him.
The affirmative defenses include fraud, statute of limitations, release, payment, illegality, statute of
frauds, estoppel, former recovery, discharge in bankruptcy, and any other matter by way of confession
and avoidance.
In Bayog v. Hon. Natino,9 the respondent, in a complaint for ejectment before the Municipal Circuit Trial Court
(MCTC), raised as one of his defenses, the MCTC’s lack of jurisdiction over the case in light of the agricultural
tenancy relationship between him and the petitioner. The MCTC applied the Rule on Summary Procedure and
issued an Order stating that it could not take cognizance of the Answer, for being filed belatedly. This Court
ruled that while the MCTC was correct in applying the Rule on Summary Procedure as the complaint was one
for ejectment, it should have met and ruled squarely on the issue of jurisdiction, as there was nothing in the
rules that barred it from admitting the Answer. Hence, the MCTC should have heard and received evidence for
the precise purpose of determining whether or not it possessed jurisdiction over the case. 10
Similarly, the alleged unconstitutionality of Republic Act No. 9262 is a matter that would have prevented the
trial court from granting the petition for protection order against the petitioner. Thus, petitioner should have
raised it in his Opposition as a defense against the issuance of a protection order against him.
For all intents and purposes, the Petition for Prohibition filed before the Court of Appeals was precipitated by
and was ultimately directed against the issuance of the TPO, an interlocutory order, which under Section 22(j)
of A.M. No. 04-10-11-SC is a prohibited pleading. An action questioning the constitutionality of the law also
cannot be filed separately even with another branch of the RTC. This is not technically feasible because there
will be no justiciable controversy or an independent cause of action that can be the subject of such separate
action if it were not for the issuance of the TPO against the petitioner. Thus, the controversy, subject of a
separate action, whether before the Court of Appeals or the RTC, would still have to be the issuance of the
TPO, which is the subject of another case in the RTC.
Moreover, the challenge to the constitutionality of the law must be raised at the earliest opportunity. In
Dasmariñas Water District v. Monterey Foods Corporation,11 we said:
A law is deemed valid unless declared null and void by a competent court; more so when the issue has not
been duly pleaded in the trial court. The question of constitutionality must be raised at the earliest opportunity. x
x x. The settled rule is that courts will not anticipate a question of constitutional law in advance of the necessity
of deciding it. (Citation omitted.)
This Court held that such opportunity is in the pleadings before a competent court that can resolve it, such that
"if it is not raised in the pleadings, it cannot be considered at the trial, and, if not considered at the trial, it
cannot be considered on appeal."12 The decision upon the constitutional question is necessary to determine
whether the TPO should be issued against petitioner. Such question should have been raised at the earliest
opportunity as an affirmative defense in the Opposition filed with the RTC handling the protection order
proceedings, which was the competent court to pass upon the constitutional issue. This Court, in Drilon v.
Lim,13 held:
We stress at the outset that the lower court had jurisdiction to consider the constitutionality of Section 187, this
authority being embraced in the general definition of the judicial power to determine what are the valid and
binding laws by the criterion of their conformity to the fundamental law. Specifically, BP 129 vests in the
regional trial courts jurisdiction over all civil cases in which the subject of the litigation is incapable of pecuniary
estimation, even as the accused in a criminal action has the right to question in his defense the constitutionality
of a law he is charged with violating and of the proceedings taken against him, particularly as they contravene
the Bill of Rights. Moreover, Article X, Section 5(2), of the Constitution vests in the Supreme Court appellate
jurisdiction over final judgments and orders of lower courts in all cases in which the constitutionality or validity
of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question. (Citation omitted, emphases ours.)
Furthermore, the filing of a separate action before the Court of Appeals or the RTC for the declaration of
unconstitutionality of Republic Act No. 9262 would result to multiplicity of suits. It is clear that the issues of
constitutionality and propriety of issuing a protection order raised by petitioner are inextricably intertwined.
Another court, whether it is an appellate court or a trial court, cannot resolve the constitutionality question in the
separate action without affecting the petition for the issuance of a TPO. Bringing a separate action for the
resolution of the issue of constitutionality will result in an unresolved prejudicial question to the validity of
issuing a protection order. If the proceedings for the protection order is not suspended, it does create the
danger of having inconsistent and conflicting judgments between the two separate courts, whether of the same
or different levels in the judicial hierarchy. These two judgments would eventually be the subject of separate
motions for reconsideration, separate appeals, and separate petitions for review before this Court – the exact
scenario the policy against multiplicity of suits is avoiding. As we previously held, "the law and the courts frown
upon split jurisdiction and the resultant multiplicity of actions."14
It must be remembered that aside from the "earliest opportunity" requirement, the court’s power of judicial
review is subject to other limitations. Two of which are the existence of an actual case or controversy and
standing. An aspect of the actual case or controversy requirement is the requisite of "ripeness." This is
generally treated in terms of actual injury to the plaintiff. Thus, a question is ripe for adjudication when the act
being challenged had a direct adverse effect on the individual challenging it. This direct adverse effect on the
individual will also be the basis of his standing as it is necessary that the person challenging the law must have
a personal and substantial interest in the case such that he has sustained, or will sustain direct injury as a
result of its enforcement.15
In this case, the petitioner’s challenge on the constitutionality of Republic Act No. 9262 was on the basis of the
protection order issued against him. Verily, the controversy became ripe only when he was in danger of or was
directly adversely affected by the statute mandating the issuance of a protection order against him. He derives
his standing to challenge the statute from the direct injury he would sustain if and when the law is enforced
against him. Therefore, it is clear that the proper forum to challenge the constitutionality of the law was before
the RTC handling the protection order proceedings. The filing of a separate action to question the
constitutionality of the law amounts to splitting a cause of action that runs counter to the policy against
multiplicity of suits.
Moreover, the filing of the Petition for Prohibition with the Court of Appeals countenanced the evil that the law
and the rules sought to avoid. It caused the delay in the proceedings and inconvenience, hardship and expense
on the part of the parties due to the multiplicity of suits between them at different court levels. The RTC where
the petition for protection orders is filed should be trusted, instead of being doubted, to be able to exercise its
jurisdiction to pass upon the issue of constitutionality within the mandatory period set by the rules.
In gist, there is no statutory, reglementary, or practical basis to disallow the constitutional challenge to a law,
which is sought to be enforced, in a summary proceeding. This is particularly true considering that the issue of
a statute’s constitutionality is a question of law which may be resolved without the reception of evidence or a
full-blown trial. Hence, said issue should have been raised at the earliest opportunity in the proceedings before
the RTC, Bacolod City and for failure of the petitioner to do so, it cannot be raised in the separate Petition for
Prohibition before the Court of Appeals, as correctly ruled by the latter, nor in a separate action before the
RTC.
On the Court Resolving the Issue of Constitutionality of Republic Act No. 9262
Notwithstanding my position that the Court of Appeals properly dismissed the Petition for Prohibition because
of petitioner’s failure to raise the issue of constitutionality of Republic Act No. 9262 at the earliest opportunity, I
concur that the Court, in the exercise of its sound discretion,16 should still pass upon the said issue in the
present Petition. Notable is the fact that not only the petitioner, but the private respondent as well, 17 pray that
the Court resolve the constitutional issue considering its novelty and paramount importance. Indeed, when
public interest requires the resolution of the constitutional issue raised, and in keeping with this Court’s duty of
determining whether other agencies or even co-equal branches of government have remained within the limits
of the Constitution and have not abused the discretion given them, the Court may brush aside technicalities of
procedure and resolve the constitutional issue.18
Aside from the technical ground raised by petitioner in his first assignment of error, petitioner questions the
constitutionality of Republic Act No. 9262 on the following grounds:
THE COURT OF APPEALS COMMITTED SERIOUS ERROR IN FAILING TO CONCLUDE THAT R.A. NO.
9262 IS DISCRIMINATORY, UNJUST, AND VIOLATIVE OF THE EQUAL PROTECTION CLAUSE.
THE COURT OF APPEALS COMMITTED GRAVE MISTAKE IN NOT FINDING THAT R.A. NO. 9262 RUNS
COUNTER TO THE DUE PROCESS CLAUSE OF THE CONSTITUTION.
THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE LAW DOES VIOLENCE TO THE POLICY
OF THE STATE TO PROTECT THE FAMILY AS A BASIC SOCIAL INSTITUTION.
THE COURT OF APPEALS SERIOUSLY ERRED IN NOT DECLARING R.A. NO. 9262 AS INVALID AND
UNCONSTITUTIONAL BECAUSE IT ALLOWS AN UNDUE DELEGATION OF JUDICIAL POWER TO THE
BARANGAY OFFICIALS.19
On the Constitutional Right to Equal Protection of the Laws
Petitioner challenges the constitutionality of Republic Act No. 9262 for making a gender-based classification,
thus, providing remedies only to wives/women and not to husbands/men. He claims that even the title of the
law, "An Act Defining Violence Against Women and Their Children" is already pejorative and sex-discriminatory
because it means violence by men against women.20 The law also does not include violence committed by
women against children and other women. He adds that gender alone is not enough basis to deprive the
husband/father of the remedies under it because its avowed purpose is to curb and punish spousal violence.
The said remedies are discriminatory against the husband/male gender. There being no reasonable difference
between an abused husband and an abused wife, the equal protection guarantee is violated.
Pertinently, Section 1, Article III of the 1987 Constitution states:
No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be
denied the equal protection of the laws. (Emphasis supplied.)
The above provision was lifted verbatim from the 1935 and 1973 Constitutions, which in turn was a slightly
modified version of the equal protection clause in Section 1, Amendment 1421 of the United States Constitution.
In 1937, the Court established in People v. Vera22 the four-fold test to measure the reasonableness of a
classification under the equal protection clause, to wit:
This basic individual right sheltered by the Constitution is a restraint on all the three grand departments of our
government and on the subordinate instrumentalities and subdivisions thereof, and on many constitutional
powers, like the police power, taxation and eminent domain. The equal protection of the laws, sententiously
observes the Supreme Court of the United States, "is a pledge of the protection of equal laws." Of course, what
may be regarded as a denial of the equal protection of the laws is a question not always easily determined. No
rule that will cover every case can be formulated. Class legislation discriminating against some and favoring
others is prohibited. But classification on a reasonable basis, and not made arbitrarily or capriciously, is
permitted. The classification, however, to be reasonable must be based on substantial distinctions which make
real differences; it must be germane to the purposes of the law; it must not be limited to existing conditions
only, and must apply equally to each member of the class. (Citations omitted, emphasis supplied.)
In our jurisdiction, the standard and analysis of equal protection challenges in the main have followed the
foregoing "rational basis" test, coupled with a deferential attitude to legislative classifications and a reluctance
to invalidate a law unless there is a showing of a clear and unequivocal breach of the Constitution.23
three levels of tests were developed, which
However, over time,

are to be applied in equal protection cases, depending

on the subject matter24 involved:
1. Rational Basis Scrutiny – the traditional test,
which requires "only that government must not
impose differences in treatment except upon
some reasonable differentiation fairly related to
the object of regulation." Simply put, it merely
 demands that the classification in the statute
reasonably relates to the legislative purpose.25
2. Intermediate Scrutiny – requires that the
classification (means) must serve an important
governmental objective (ends) and is
substantially related to the achievement of such
objective. A classification based on sex is the
best-established example of an intermediate level
of review.26
3. Strict Scrutiny – requires that the classification
serve a compelling state interest and is necessary
to achieve such interest. This level is used when
suspect classifications or fundamental rights are
involved.27
Recent Philippine jurisprudence has recognized the need to apply different standards of scrutiny in testing the
constitutionality of classifications. In British American Tobacco v. Camacho, 28 this Court held that since the
case therein neither involved a suspect classification nor impinged on a fundamental right, then "the rational
basis test was properly applied to gauge the constitutionality of the assailed law in the face of an equal
protection challenge."29 We added:
It has been held that "in the areas of social and economic policy, a statutory classification that neither proceeds
along suspect lines nor infringes constitutional rights must be upheld against equal protection challenge if there
is any reasonably conceivable state of facts that could provide a rational basis for the classification." Under the
rational basis test, it is sufficient that the legislative classification is rationally related to achieving some
legitimate State interest. x x x.30 (Citations omitted.)
Echoing the same principle, this Court, speaking through then Chief Justice Puno in Central Bank (now Bangko
Sentral ng Pilipinas) Employees Association, Inc. v. Bangko Sentral ng Pilipinas, 31 stated:
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. 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.
xxxx
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.
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. (Citations omitted.)
This was reiterated in League of Cities of the Philippines v. Commission on Elections, 32 and Ang Ladlad LGBT
Party v. Commission on Elections,33 wherein the Court, although applying the rational basis test, noted that
there are tests, which are more appropriate in other cases, especially those involving suspect classes and
fundamental rights. In fact, Chief Justice Puno expounded on this in his Separate Concurring Opinion in the
Ang Ladlad case. He said that although the assailed resolutions therein were correctly struck down, since the
classification was based on gender or sexual orientation, a quasi-suspect classification, a heightened level of
review should have been applied and not just the rational basis test, which is the most liberal basis of judicial
scrutiny. Citing American authority, Chief Justice Puno continued to elucidate on the three levels of scrutiny
and the classes falling within each level, to wit:
If a legislative classification disadvantages a "suspect class" or impinges upon the exercise of a "fundamental
right," then the courts will employ strict scrutiny and the statute must fall unless the government can
demonstrate that the classification has been precisely tailored to serve a compelling governmental interest.
Over the years, the United States Supreme Court has determined that suspect classes for equal protection
purposes include classifications based on race, religion, alienage, national origin, and ancestry. The underlying
rationale of this theory is that where legislation affects discrete and insular minorities, the presumption of
constitutionality fades because traditional political processes may have broken down. In such a case, the State
bears a heavy burden of justification, and the government action will be closely scrutinized in light of its
asserted purpose.
On the other hand, if the classification, while not facially invidious, nonetheless gives rise to recurring
constitutional difficulties, or if a classification disadvantages a "quasi-suspect class," it will be treated under
intermediate or heightened review. To survive intermediate scrutiny, the law must not only further an important
governmental interest and be substantially related to that interest, but the justification for the classification must
be genuine and must not depend on broad generalizations. Noteworthy, and of special interest to us in this
case, quasi-suspect classes include classifications based on gender or illegitimacy.
If neither strict nor intermediate scrutiny is appropriate, then the statute will be tested for mere rationality. This
is a relatively relaxed standard reflecting the Court’s awareness that the drawing of lines which creates
distinctions is peculiarly a legislative task and an unavoidable one. The presumption is in favor of the
classification, of the reasonableness and fairness of state action, and of legitimate grounds of distinction, if any
such grounds exist, on which the State acted.34 (Citations omitted, emphases supplied.)
This case presents us with the most opportune time to adopt the appropriate scrutiny in deciding cases where
the issue of discrimination based on sex or gender is raised. The assailed Section 3, among other provisions,
of Republic Act No. 9262 provides:
SEC. 3. Definition of Terms. – As used in this Act:
(a) "Violence against women and their children" refers to any act or a series of acts committed by any person
against a woman who is his wife, former wife, or against a woman with whom the person has or had a sexual or
dating relationship, or with whom he has a common child, or against her child whether legitimate or illegitimate,
within or without the family abode, which result in or is likely to result in physical, sexual, psychological harm or
suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary
deprivation of liberty. x x x. (Emphases supplied.)
The aforesaid law also institutionalized remedies such as the issuance of protection orders in favor of women
and children who are victims of violence and prescribed public penalties for violation of the said law.
Petitioner questions the constitutionality of Republic Act No. 9262 which denies the same protection orders to
husbands who are victims of wife-abuse. It should be stressed that under aforecited section of said law
violence may not only be physical or sexual but also psychological and economic in nature.
The Honorable Justice Marvic Mario Victor F. Leonen in his concurring opinion notes that "Husband abuse
maybe an under reported form of family violence." While concurring with the majority opinion, he opines as
follows:
Nevertheless, in a future case more deserving of our attention, we should be open to realities which may
challenge the dominant conception that violence in intimate relationships only happens to women and children.
This may be predominantly true, but even those in marginal cases deserve fundamental constitutional and
statutory protection. We should be careful that in correcting historical and cultural injustices, we may typecast
all women as victims, stereotype all men as tormentors or make invisible the possibility that in some intimate
relationships, men may also want to seek succor against acts defined in Section 5 of Republic Act No. 9262 in
an expeditious manner.
Since statutory remedies accorded to women are not made available to men, when the reality is that there are
men, regardless of their number, who are also suffering from domestic violence, the rational basis test may be
too wide and liberal to justify the statutory classification which in effect allows different treatment of men who
are similarly situated. In the context of the constitutional policy to "ensure the fundamental equality before the
law of women and men"35 the level of scrutiny applicable, to test whether or not the classification in Republic
Act No. 9262 violates the equal protection clause, is the middle-tier scrutiny or the intermediate standard of
judicial review.
To survive intermediate review, the classification in the challenged law must (1) serve important governmental
objectives, and (2) be substantially related to the achievement of those objectives.36
Important and Essential Governmental Objectives: Safeguard Human Rights, Ensure Gender Equality and
Empower Women
Republic Act No. 9262 is a legislation that furthers important, in fact essential, governmental objectives as
enunciated in the law’s Declaration of Policy, as quoted below:
SEC. 2. Declaration of Policy.- It is hereby declared that the State values the dignity of women and children and
guarantees full respect for human rights. The State also recognizes the need to protect the family and its
members particularly women and children, from violence and threats to their personal safety and security.
Towards this end, the State shall exert efforts to address violence committed against women and children in
keeping with the fundamental freedoms guaranteed under the Constitution and the Provisions of the Universal
Declaration of Human Rights, the Convention on the Elimination of all forms of discrimination Against Women,
Convention on the Rights of the Child and other international human rights instruments of which the Philippines
is a party.
This policy is in consonance with the constitutional provisions,37 which state:
SEC. 11. The State values the dignity of every human person and guarantees full respect for human rights.
SEC. 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic
autonomous social institution.
x x x.
By constitutional mandate, the Philippines is committed to ensure that human rights and fundamental freedoms
are fully enjoyed by everyone. It was one of the countries that voted in favor of the Universal Declaration of
Human Rights (UDHR), which was a mere two years after it gained independence from the United States of
America. In addition, the Philippines is a signatory to many United Nations human rights treaties such as the
Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Economic,
Social and Cultural Rights, the International Covenant on Civil and Political Rights, the Convention Against
Torture, and the Convention on the Rights of the Child, among others.
As a signatory to the UDHR, the Philippines pledged itself to achieve the promotion of universal respect for and
observance of human rights and fundamental freedoms,38 keeping in mind the standards under the Declaration.
Among the standards under the UDHR are the following:
Article 1. All human beings are born free and equal in dignity and rights. They are endowed with reason and
conscience and should act towards one another in a spirit of brotherhood.
xxxx
Article 7. All are equal before the law and are entitled without any discrimination to equal protection of the law.
All are entitled to equal protection against any discrimination in violation of this Declaration and against any
incitement to such discrimination.
Article 8. Everyone has the right to an effective remedy by the competent national tribunals for acts violating the
fundamental rights granted him by the constitution or by law. (Emphasis ours.)
The Declaration of Policy in Republic Act No. 9262 enunciates the purpose of the said law, which is to fulfill the
government’s obligation to safeguard the dignity and human rights of women and children by providing effective
remedies against domestic violence or physical, psychological, and other forms of abuse perpetuated by the
husband, partner, or father of the victim. The said law is also viewed within the context of the constitutional
mandate to ensure gender equality, which is quoted as follows:
Section 14. The State recognizes the role of women in nation-building, and shall ensure the fundamental
equality before the law of women and men.39
It has been acknowledged that "gender-based violence is a form of discrimination that seriously inhibits
women's ability to enjoy rights and freedoms on a basis of equality with men."40 Republic Act No. 9262 can be
viewed therefore as the Philippines’ compliance with the Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW), which is committed to condemn discrimination against women and
directs its members to undertake, without delay, all appropriate means to eliminate discrimination against
women in all forms both in law and in practice.41 Known as the International Bill of Rights of Women,42 the
CEDAW is the central and most comprehensive document for the advancement of the welfare of women. 43 It
brings the women into the focus of human rights concerns, and its spirit is rooted in the goals of the UN: to
reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of
men and women.44 The CEDAW, in its preamble, explicitly acknowledges the existence of extensive
discrimination against women, and emphasized that such is a violation of the principles of equality of rights and
respect for human dignity.
In addition, as a state party to the CEDAW, the Philippines is under legal obligation to ensure their
development and advancement for the improvement of their position from one of de jure as well as de facto
equality with men.45 The CEDAW, going beyond the concept of discrimination used in many legal standards
and norms, focuses on discrimination against women, with the emphasis that women have suffered and are
continuing to suffer from various forms of discrimination on account of their biological sex. 46
The Philippines’ accession to various international instruments requires it to promote and ensure the
observance of human rights and "continually affirm its commitment to ensure that it pursues gender equality in
all aspects of the development process to eventually make real, a gender-responsive society."47 Thus, the
governmental objectives of protecting human rights and fundamental freedoms, which includes promoting
gender equality and empowering women, as mandated not only by our Constitution, but also by commitments
we have made in the international sphere, are undeniably important and essential.
The Gender-Based Classification in Republic Act No. 9262 is Substantially Related to the Achievement of
Governmental Objectives
As one of the country’s pervasive social problems, violence against women is deemed to be closely linked with
the unequal power relationship between women and men and is otherwise known as "gender-based
violence."48 Violent acts towards women has been the subject of an examination on a historic world-wide
perspective.49 The exhaustive study of a foreign history professor noted that "from the earliest civilizations on,
the subjugation of women, in the form of violence, were facts of life,"50 as three great bodies of thought, namely:
Judeo-Christian religious ideas; Greek philosophy; and the Common Law Legal Code, which have influenced
western society’s views and treatment of women, all "assumed patriarchy as natural; that is, male domination
stemming from the view of male superiority."51 It cited 18th century legal expert William Blackstone, who
explained that the common law doctrine of coverture reflected the theological assumption that husband and
wife were ‘one body’ before God; thus "they were ‘one person’ under the law, and that one person was the
husband,"52 a concept that evidently found its way in some of our Civil Code provisions prior to the enactment
of the Family Code.
Society and tradition dictate that the culture of patriarchy continue. Men are expected to take on the dominant
roles both in the community and in the family. This perception naturally leads to men gaining more power over
women – power, which must necessarily be controlled and maintained. Violence against women is one of the
ways men control women to retain such power.53
The enactment of Republic Act No. 9262 was in response to the undeniable numerous cases involving violence
committed against women in the Philippines. In 2012, the Philippine National Police (PNP) reported 54 that 65%
or 11,531 out of 15,969 cases involving violence against women were filed under Republic Act No. 9262. From
2004 to 2012, violations of Republic Act No. 9262 ranked first among the different categories of violence
committed against women. The number of reported cases showed an increasing trend from 2004 to 2012,
although the numbers might not exactly represent the real incidence of violence against women in the country,
as the data is based only on what was reported to the PNP. Moreover, the increasing trend may have been
caused by the continuous information campaign on the law and its strict implementation. 55 Nonetheless,
statistics show that cases involving violence against women are prevalent, while there is a dearth of reported
cases involving violence committed by women against men, that will require legislature intervention or
solicitous treatment of men.
Preventing violence against women and children through their availment of special legal remedies, serves the
governmental objectives of protecting the dignity and human rights of every person, preserving the sanctity of
family life, and promoting gender equality and empowering women. Although there exists other laws on
violence against women56 in the Philippines, Republic Act No. 9262 deals with the problem of violence within
the family and intimate relationships, which deserves special attention because it occurs in situations or places
where women and children should feel most safe and secure but are actually not. The law provides the widest
range of reliefs for women and children who are victims of violence, which are often reported to have been
committed not by strangers, but by a father or a husband or a person with whom the victim has or had a sexual
or dating relationship. Aside from filing a criminal case in court, the law provides potent legal remedies to the
victims that theretofore were not available. The law recognizes, with valid factual support based on statistics
that women and children are the most vulnerable victims of violence, and therefore need legal intervention. On
the other hand, there is a dearth of empirical basis to anchor a conclusion that men need legal protection from
violence perpetuated by women.
The law takes into account the pervasive vulnerability of women and children, and the seriousness and urgency
of the situation, which, in the language of the law result in or is likely to result in physical, sexual, psychological
harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or
arbitrary deprivation of liberty.57 Hence, the law permits the issuance of protection orders and the granting of
certain reliefs to women victims, even without a hearing. The law has granted authority for barangay officials to
issue a protection order against the offender, based on the victim’s application. The RTC may likewise grant an
application for a temporary protection order (TPO) and provide other reliefs, also on the mere basis of the
application. Despite the ex parte issuance of these protection orders, the temporary nature of these remedies
allow them to be availed of by the victim without violating the offender’s right to due process as it is only when a
full-blown hearing has been done that a permanent protection order may be issued. Thus, these remedies are
suitable, reasonable, and justified. More importantly, they serve the objectives of the law by providing the
victims necessary immediate protection from the violence they perceive as threats to their personal safety and
security. This translates to the fulfillment of other governmental objectives as well. By assuring the victims
instant relief from their situation, they are consequently empowered and restored to a place of dignity and
equality. Such is embodied in the purpose to be served by a protection order, to wit:
SEC. 8. Protection Orders.- A protection order is an order issued under this act for the purpose of preventing
further acts of violence against a woman or her child specified in Section 5 of this Act and granting other
necessary relief. The relief granted under a protection order serve the purpose of safeguarding the victim from
further harm, minimizing any disruption in the victim’s daily life, and facilitating the opportunity and ability of the
victim to independently regain control over her life. x x x. (Emphasis supplied.)
In furtherance of the governmental objectives, especially that of protecting human rights, violence against
women and children under this Act has been classified as a public offense, 58 making its prosecution
independent of the victim’s initial participation.
Verily, the classification made in Republic Act No. 9262 is substantially related to the important governmental
objectives of valuing every person’s dignity, respecting human rights, safeguarding family life, protecting
children, promoting gender equality, and empowering women.
The persistent and existing biological, social, and cultural differences between women and men prescribe that
they be treated differently under particular conditions in order to achieve substantive equality for women. Thus,
the disadvantaged position of a woman as compared to a man requires the special protection of the law, as
gleaned from the following recommendations of the CEDAW Committee:
8. The Convention requires that women be given an equal start and that they be empowered by an enabling
environment to achieve equality of results. It is not enough to guarantee women treatment that is identical to
that of men. Rather, biological as well as socially and culturally constructed differences between women and
men must be taken into account. Under certain circumstances, non-identical treatment of women and men will
be required in order to address such differences. Pursuit of the goal of substantive equality also calls for an
effective strategy aimed at overcoming under representation of women and a redistribution of resources and
power between men and women.
9. Equality of results is the logical corollary of de facto or substantive equality. These results may be
quantitative and/or qualitative in nature; that is, women enjoying their rights in various fields in fairly equal
numbers with men, enjoying the same income levels, equality in decision-making and political influence, and
women enjoying freedom from violence.59 (Emphases supplied.)
The government’s commitment to ensure that the status of a woman in all spheres of her life are parallel to that
of a man, requires the adoption and implementation of ameliorative measures, such as Republic Act No. 9262.
Unless the woman is guaranteed that the violence that she endures in her private affairs will not be ignored by
the government, which is committed to uplift her to her rightful place as a human being, then she can neither
achieve substantive equality nor be empowered.
The equal protection clause in our Constitution does not guarantee an absolute prohibition against
classification. The non-identical treatment of women and men under Republic Act No. 9262 is justified to put
them on equal footing and to give substance to the policy and aim of the state to ensure the equality of women
and men in light of the biological, historical, social, and culturally endowed differences between men and
women.
Republic Act No. 9262, by affording special and exclusive protection to women and children, who are
vulnerable victims of domestic violence, undoubtedly serves the important governmental objectives of
protecting human rights, insuring gender equality, and empowering women. The gender-based classification
and the special remedies prescribed by said law in favor of women and children are substantially related, in fact
essentially necessary, to achieve such objectives. Hence, said Act survives the intermediate review or middle-
tier judicial scrutiny. The gender-based classification therein is therefore not violative of the equal protection
clause embodied in the 1987 Constitution.
The Issuance of the TPO did not Violate Petitioner’s Right to Due Process
A protection order is issued under Republic Act No. 9262 for the purpose of preventing further acts of violence
against a woman or her child.60 The circumstances surrounding the availment thereof are often attended by
urgency; thus, women and child victims must have immediate and uncomplicated access to the same. Hence,
Republic Act No. 9262 provides for the issuance of a TPO:
SEC. 15. Temporary Protection Orders. – Temporary Protection Orders (TPOs) refers to the protection order
issued by the court on the date of filing of the application after ex parte determination that such order should be
issued. A court may grant in a TPO any, some or all of the reliefs mentioned in this Act and shall be effective
for thirty (30) days. The court shall schedule a hearing on the issuance of a PPO prior to or on the date of the
expiration of the TPO. The court shall order the immediate personal service of the TPO on the respondent by
the court sheriff who may obtain the assistance of law enforcement agents for the service. The TPO shall
include notice of the date of the hearing on the merits of the issuance of a PPO.
The ex parte issuance of the TPO does not make it unconstitutional. Procedural due process refers to the
method or manner by which the law is enforced. It consists of the two basic rights of notice and hearing, as well
as the guarantee of being heard by an impartial and competent tribunal.61 However, it is a constitutional
commonplace that the ordinary requirements of procedural due process yield to the necessities of protecting
vital public interests like those involved herein. Republic Act No. 9262 and its implementing regulations were
enacted and promulgated in the exercise of that pervasive, sovereign power of the State to protect the safety,
health, and general welfare and comfort of the public (in this case, a particular sector thereof), as well as the
protection of human life, commonly designated as the police power.62
In Secretary of Justice v. Lantion,63 the Court enumerated three instances when notice and/or hearing may be
dispensed with in administrative proceedings:
These twin rights may, however, be considered dispensable in certain instances, such as:
1. In proceedings where there is an urgent need for immediate action, like the summary abatement of
a nuisance per se (Article 704, Civil Code), the preventive suspension of a public servant facing
administrative charges (Section 63, Local Government Code, B. P. Blg. 337), the padlocking of filthy
restaurants or theaters showing obscene movies or like establishments which are immediate threats to
public health and decency, and the cancellation of a passport of a person sought for criminal
prosecution;
2. Where there is tentativeness of administrative action, that is, where the respondent is not precluded
from enjoying the right to notice and hearing at a later time without prejudice to the person affected,
such as the summary distraint and levy of the property of a delinquent taxpayer, and the replacement
of a temporary appointee; and
3. Where the twin rights have previously been offered but the right to exercise them had not been
claimed.
The principles behind the aforementioned exceptions may also apply in the case of the ex parte issuance of the
TPO, although it is a judicial proceeding. As mentioned previously, the urgent need for a TPO is inherent in its
nature and purpose, which is to immediately provide protection to the woman and/or child victim/s against
further violent acts. Any delay in the issuance of a protective order may possibly result in loss of life and limb of
the victim. The issuing judge does not arbitrarily issue the TPO as he can only do so if there is reasonable
ground to believe that an imminent danger of violence against women and their children exists or is about to
recur based on the verified allegations in the petition of the victim/s.64 Since the TPO is effective for only thirty
(30) days,65 any inconvenience, deprivation, or prejudice the person enjoined – such as the petitioner herein –
may suffer, is generally limited and temporary. Petitioner is also not completely precluded from enjoying the
right to notice and hearing at a later time. Following the issuance of the TPO, the law and rules require that
petitioner be personally served with notice of the preliminary conference and hearing on private respondent’s
petition for a Permanent Protection Order (PPO)66 and that petitioner submit his opposition to private
respondent’s petition for protections orders.67 In fact, it was petitioner’s choice not to file anopposition, averring
that it would only be an "exercise in futility." Thus, the twin rights of notice and hearing were subsequently
afforded to petitioner but he chose not to take advantage of them. Petitioner cannot now claim that the ex parte
issuance of the TPO was in violation of his right to due process.
There is No Undue Delegation of Judicial Power to Barangay Officials
A Barangay Protection Order (BPO) refers to the protection order issued by the Punong Barangay, or in his
absence the Barangay Kagawad, ordering the perpetrator to desist from committing acts of violence against the
family or household members particularly women and their children.68 The authority of barangay officials to
issue a BPO is conferred under Section 14 of Republic Act No. 9262:
SEC. 14. Barangay Protection Orders (BPOs); Who May Issue and How. - Barangay Protection Orders (BPOs)
refer to the protection order issued by the Punong Barangay ordering the perpetrator to desist from committing
acts under Section 5 (a) and (b) of this Act. A Punong Barangay who receives applications for a BPO shall
issue the protection order to the applicant on the date of filing after ex parte determination of the basis of the
application. If the Punong Barangay is unavailable to act on the application for a BPO, the application shall be
acted upon by any available Barangay Kagawad. If the BPO is issued by a Barangay Kagawad the order must
be accompanied by an attestation by the Barangay Kagawad that the Punong Barangay was unavailable at the
time for the issuance of the BPO. BPOs shall be effective for fifteen (15) days. Immediately after the issuance
of an ex parte BPO, the Punong Barangay or Barangay Kagawad shall personally serve a copy of the same on
the respondent, or direct any barangay official to effect is personal service.
The parties may be accompanied by a non-lawyer advocate in any proceeding before the Punong Barangay.
Once more, the urgency of the purpose for which protection orders under Republic Act No. 9262 are issued
justifies the grant of authority to barangay officials to issue BPOs. Barangay officials live and interact closely
with their constituents and are presumably easier to approach and more readily available than any other
government official. Their issuance of the BPO is but part of their official executive function of enforcing all laws
and ordinances within their barangay69 and maintaining public order in the barangay.70 It is true that the
barangay officials’ issuance of a BPO under Republic Act No. 9262 necessarily involves the determination of
some questions of fact, but this function, whether judicial or quasi-judicial, are merely incidental to the exercise
of the power granted by law.71 The Court has clarified that:
"The mere fact that an officer is required by law to inquire the existence of certain facts and to apply the law
thereto in order to determine what his official conduct shall be and the fact that these acts may affect private
rights do not constitute an exercise of judicial powers. Accordingly, a statute may give to non-judicial officers
the power to declare the existence of facts which call into operation its provisions, and similarly may grant to
commissioners and other subordinate officers power to ascertain and determine appropriate facts as a basis for
procedure in the enforcement of particular laws." (11 Am. Jur., Const. Law, p. 950, sec. 235)72
Furthermore, while judicial power rests exclusively in the judiciary, it may be conceded that the legislature may
confer on administrative boards or bodies, or even particular government officials, quasi-judicial power
involving the exercise of judgment and discretion, as incident to the performance of administrative functions.
But in so doing, the legislature must state its intention in express terms that would leave no doubt, as even
such quasi-judicial prerogatives must be limited, if they are to be valid, only to those incidental to or in
connection with the performance of administrative duties, which do not amount to conferment of jurisdiction
over a matter exclusively vested in the courts.73 In the case of a BPO, it is a mere provisional remedy under
Republic Act No. 9262, meant to address the pressing need of the victims for instant protection. However, it
does not take the place of appropriate judicial proceedings and remedies that provide a more effective and
comprehensive protection to the victim. In fact, under the Implementing Rules of Republic Act No. 9262, the
issuance of a BPO or the pendency of an application for a BPO shall not preclude the victim from applying for,
or the court from granting, a TPO or PPO. Where a TPO has already been granted by any court, the barangay
official may no longer issue a BPO.74 The same Implementing Rules also require that within twenty-four (24)
hours after the issuance of a BPO, the barangay official shall assist the victim in filing an application for a TPO
or PPO with the nearest court in the victim’s place of residence. If there is no Family Court or RTC, the
application may be filed in the Municipal Trial Court, the Municipal Circuit Trial Court or the Metropolitan Trial
Court.75
All things considered, there is no ground to declare Republic Act No. 9262 constitutionally infirm.
TERESITA J. LEONARDO-DE CASTRO
Associate Justice