Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No.

L-7995 May 31, 1957

LAO H. ICHONG, in his own behalf and in behalf of other alien residents, corporations and partnerships adversely affected. by Republic Act No. 1180, petitioner, vs. JAIME HERNANDEZ, Secretary of Finance, and MARCELINO SARMIENTO, City Treasurer of Manila, respondents. Ozaeta, Lichauco and Picazo and Sycip, Quisumbing, Salazar and Associates for petitioner. Office of the Solicitor General Ambrosio Padilla and Solicitor Pacifico P. de Castro for respondent Secretary of Finance. City Fiscal Eugenio Angeles and Assistant City Fiscal Eulogio S. Serrano for respondent City Treasurer. Dionisio Reyes as Amicus Curiae. Marcial G. Mendiola as Amicus Curiae. Emiliano R. Navarro as Amicus Curiae. LABRADOR, J.: I. The case and issue, in general This Court has before it the delicate task of passing upon the validity and constitutionality of a legislative enactment, fundamental and far-reaching in significance. The enactment poses questions of due process, police power and equal protection of the laws. It also poses an important issue of fact, that is whether the conditions which the disputed law purports to remedy really or actually exist. Admittedly springing from a deep, militant, and positive nationalistic impulse, the law purports to protect citizen and country from the alien retailer. Through it, and within the field of economy it regulates, Congress attempts to translate national aspirations for economic independence and national security, rooted in the drive and urge for national survival and welfare, into a concrete and tangible measures designed to free the national retailer from the competing dominance of the alien, so that the country and the nation may be free from a supposed economic dependence and bondage. Do the facts and circumstances justify the enactment? II. Pertinent provisions of Republic Act No. 1180 Republic Act No. 1180 is entitled "An Act to Regulate the Retail Business." In effect it nationalizes the retail trade business. The main provisions of the Act are: (1) a prohibition against persons, not citizens of the Philippines, and against associations, partnerships, or corporations the capital of which are not wholly owned by citizens of the Philippines, from engaging directly or indirectly in the retail trade; (2) an exception from the above prohibition in favor of aliens actually engaged in said business on May 15, 1954, who are allowed to continue to engaged therein, unless their licenses are forfeited in accordance with the law, until their death or voluntary retirement in case of natural persons, and for ten years after the approval of the Act or until the expiration of term in case of juridical persons; (3) an exception therefrom in favor of citizens and juridical entities of the United States; (4) a provision for the forfeiture of licenses (to engage in the retail business) for violation of the laws on nationalization, control weights and measures and labor and other laws relating to trade, commerce and industry; (5) a prohibition against the establishment or opening by aliens actually engaged in the retail business of additional stores or branches of retail business, (6) a provision requiring aliens actually engaged in the retail business to present for registration with the proper authorities a verified statement concerning their businesses, giving, among other matters, the nature of the business, their assets and liabilities and their offices and principal offices of judicial entities; and (7) a provision allowing the heirs of aliens now engaged in the retail business who die, to continue such business for a period of six months for purposes of liquidation. III. Grounds upon which petition is based-Answer thereto

Petitioner, for and in his own behalf and on behalf of other alien residents corporations and partnerships adversely affected by the provisions of Republic Act. No. 1180, brought this action to obtain a judicial declaration that said Act is unconstitutional, and to enjoin the Secretary of Finance and all other persons acting under him, particularly city and municipal treasurers, from enforcing its provisions. Petitioner attacks the constitutionality of the Act, contending that: (1) it denies to alien residents the equal protection of the laws and deprives of their liberty and property without due process of law ; (2) the subject of the Act is not expressed or comprehended in the title thereof; (3) the Act violates international and treaty obligations of the Republic of the Philippines; (4) the provisions of the Act against the transmission by aliens of their retail business thru hereditary succession, and those requiring 100% Filipino capitalization for a corporation or entity to entitle it to engage in the retail business, violate the spirit of Sections 1 and 5, Article XIII and Section 8 of Article XIV of the Constitution. In answer, the Solicitor-General and the Fiscal of the City of Manila contend that: (1) the Act was passed in the valid exercise of the police power of the State, which exercise is authorized in the Constitution in the interest of national economic survival; (2) the Act has only one subject embraced in the title; (3) no treaty or international obligations are infringed; (4) as regards hereditary succession, only the form is affected but the value of the property is not impaired, and the institution of inheritance is only of statutory origin. IV. Preliminary consideration of legal principles involved a. The police power. There is no question that the Act was approved in the exercise of the police power, but petitioner claims that its exercise in this instance is attended by a violation of the constitutional requirements of due process and equal protection of the laws. But before proceeding to the consideration and resolution of the ultimate issue involved, it would be well to bear in mind certain basic and fundamental, albeit preliminary, considerations in the determination of the ever recurrent conflict between police power and the guarantees of due process and equal protection of the laws. What is the scope of police power, and how are the due process and equal protection clauses related to it? What is the province and power of the legislature, and what is the function and duty of the courts? These consideration must be clearly and correctly understood that their application to the facts of the case may be brought forth with clarity and the issue accordingly resolved. It has been said the police power is so far - reaching in scope, that it has become almost impossible to limit its sweep. As it derives its existence from the very existence of the State itself, it does not need to be expressed or defined in its scope; it is said to be co-extensive with self-protection and survival, and as such it is the most positive and active of all governmental processes, the most essential, insistent and illimitable. Especially is it so under a modern democratic framework where the demands of society and of nations have multiplied to almost unimaginable proportions; the field and scope of police power has become almost boundless, just as the fields of public interest and public welfare have become almost allembracing and have transcended human foresight. Otherwise stated, as we cannot foresee the needs and demands of public interest and welfare in this constantly changing and progressive world, so we cannot delimit beforehand the extent or scope of police power by which and through which the State seeks to attain or achieve interest or welfare. So it is that Constitutions do not define the scope or extent of the police power of the State; what they do is to set forth the limitations thereof. The most important of these are the due process clause and the equal protection clause. b. Limitations on police power. The basic limitations of due process and equal protection are found in the following provisions of our Constitution: SECTION 1.(1) No person shall be deprived of life, liberty or property without due process of law, nor any person be denied the equal protection of the laws. (Article III, Phil. Constitution) These constitutional guarantees which embody the essence of individual liberty and freedom in democracies, are not limited to citizens alone but are admittedly universal in their application, without regard to any differences of race, of color, or of nationality. (Yick Wo vs. Hopkins, 30, L. ed. 220, 226.)

c. The, equal protection clause. The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation, which is limited either in the object to which it is directed or by territory within which is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exists for making a distinction between those who fall within such class and those who do not. (2 Cooley, Constitutional Limitations, 824-825.) d. The due process clause. The due process clause has to do with the reasonableness of legislation enacted in pursuance of the police power. Is there public interest, a public purpose; is public welfare involved? Is the Act reasonably necessary for the accomplishment of the legislature's purpose; is it not unreasonable, arbitrary or oppressive? Is there sufficient foundation or reason in connection with the matter involved; or has there not been a capricious use of the legislative power? Can the aims conceived be achieved by the means used, or is it not merely an unjustified interference with private interest? These are the questions that we ask when the due process test is applied. The conflict, therefore, between police power and the guarantees of due process and equal protection of the laws is more apparent than real. Properly related, the power and the guarantees are supposed to coexist. The balancing is the essence or, shall it be said, the indispensable means for the attainment of legitimate aspirations of any democratic society. There can be no absolute power, whoever exercise it, for that would be tyranny. Yet there can neither be absolute liberty, for that would mean license and anarchy. So the State can deprive persons of life, liberty and property, provided there is due process of law; and persons may be classified into classes and groups, provided everyone is given the equal protection of the law. The test or standard, as always, is reason. The police power legislation must be firmly grounded on public interest and welfare, and a reasonable relation must exist between purposes and means. And if distinction and classification has been made, there must be a reasonable basis for said distinction. e. Legislative discretion not subject to judicial review. Now, in this matter of equitable balancing, what is the proper place and role of the courts? It must not be overlooked, in the first place, that the legislature, which is the constitutional repository of police power and exercises the prerogative of determining the policy of the State, is by force of circumstances primarily the judge of necessity, adequacy or reasonableness and wisdom, of any law promulgated in the exercise of the police power, or of the measures adopted to implement the public policy or to achieve public interest. On the other hand, courts, although zealous guardians of individual liberty and right, have nevertheless evinced a reluctance to interfere with the exercise of the legislative prerogative. They have done so early where there has been a clear, patent or palpable arbitrary and unreasonable abuse of the legislative prerogative. Moreover, courts are not supposed to override legitimate policy, and courts never inquire into the wisdom of the law. V. Economic problems sought to be remedied With the above considerations in mind, we will now proceed to delve directly into the issue involved. If the disputed legislation were merely a regulation, as its title indicates, there would be no question that it falls within the legitimate scope of legislative power. But it goes further and prohibits a group of residents, the aliens, from engaging therein. The problem becomes more complex because its subject is a common, trade or occupation, as old as society itself, which from the immemorial has always been open to residents, irrespective of race, color or citizenship. a. Importance of retail trade in the economy of the nation. In a primitive economy where families produce all that they consume and consume all that they produce, the dealer, of course, is unknown. But as group life develops and families begin to live in communities

producing more than what they consume and needing an infinite number of things they do not produce, the dealer comes into existence. As villages develop into big communities and specialization in production begins, the dealer's importance is enhanced. Under modern conditions and standards of living, in which man's needs have multiplied and diversified to unlimited extents and proportions, the retailer comes as essential as the producer, because thru him the infinite variety of articles, goods and needed for daily life are placed within the easy reach of consumers. Retail dealers perform the functions of capillaries in the human body, thru which all the needed food and supplies are ministered to members of the communities comprising the nation. There cannot be any question about the importance of the retailer in the life of the community. He ministers to the resident's daily needs, food in all its increasing forms, and the various little gadgets and things needed for home and daily life. He provides his customers around his store with the rice or corn, the fish, the salt, the vinegar, the spices needed for the daily cooking. He has cloths to sell, even the needle and the thread to sew them or darn the clothes that wear out. The retailer, therefore, from the lowly peddler, the owner of a small sari-sari store, to the operator of a department store or, a supermarket is so much a part of day-to-day existence. b. The alien retailer's trait. The alien retailer must have started plying his trades in this country in the bigger centers of population (Time there was when he was unknown in provincial towns and villages). Slowly but gradually be invaded towns and villages; now he predominates in the cities and big centers of population. He even pioneers, in far away nooks where the beginnings of community life appear, ministering to the daily needs of the residents and purchasing their agricultural produce for sale in the towns. It is an undeniable fact that in many communities the alien has replaced the native retailer. He has shown in this trade, industry without limit, and the patience and forbearance of a slave. Derogatory epithets are hurled at him, but he laughs these off without murmur; insults of ill-bred and insolent neighbors and customers are made in his face, but he heeds them not, and he forgets and forgives. The community takes note of him, as he appears to be harmless and extremely useful. c. Alleged alien control and dominance. There is a general feeling on the part of the public, which appears to be true to fact, about the controlling and dominant position that the alien retailer holds in the nation's economy. Food and other essentials, clothing, almost all articles of daily life reach the residents mostly through him. In big cities and centers of population he has acquired not only predominance, but apparent control over distribution of almost all kinds of goods, such as lumber, hardware, textiles, groceries, drugs, sugar, flour, garlic, and scores of other goods and articles. And were it not for some national corporations like the Naric, the Namarco, the Facomas and the Acefa, his control over principal foods and products would easily become full and complete. Petitioner denies that there is alien predominance and control in the retail trade. In one breath it is said that the fear is unfounded and the threat is imagined; in another, it is charged that the law is merely the result of radicalism and pure and unabashed nationalism. Alienage, it is said, is not an element of control; also so many unmanageable factors in the retail business make control virtually impossible. The first argument which brings up an issue of fact merits serious consideration. The others are matters of opinion within the exclusive competence of the legislature and beyond our prerogative to pass upon and decide.

The best evidence are the statistics on the retail trade, which put down the figures in black and white. Between the constitutional convention year (1935), when the fear of alien domination and control of the retail trade already filled the minds of our leaders with fears and misgivings, and the year of the enactment of the nationalization of the retail trade act (1954), official statistics unmistakably point out to the ever-increasing dominance and control by the alien of the retail trade, as witness the following tables:
Assets Year and Retailers No.Nationality Establishm Pesos Per cent Distribut Gross Sales Pesos Per cent Distribut

ents 194 1: Filipino .......... Chinese ......... .. Others ........... . 194 7: Filipino .......... Chinese ......... .. Others ........... 194 8: (Census) Filipino .......... Chinese ......... . Others .......... 194 9: Filipino .......... Chinese ......... . Others .......... 195 1: Filipino ......... Chinese ......... . Others .......... 119,352 224,053,62 0 17,429 134,325,30 3 347 8,614,025 113,659 213,451,60 2 16,248 125,223,33 6 486 12,056,365 113,631 213,342,26 4 12,087 93,155,459 422 10,514,675 111,107 208,658,94 6 13,774 106,156,21 8 354 8,761,260 106,671 200,323,13 8 15,356 118,348,69 2 1,646 40,187,090

ion

ion

55.82 174,181,92 4 32.98 148,813,23 9 11.20 13,630,239

51.74 44.21 4.05

65.05 279,583,33 3 33.56 205,701,13 4 .49 4,927,168

57.03 41.96 1.01

67.30 467,161,66 7 29.38 294,894,22 7 3.32 9,995,402

60.51 38.20 1.29

60.89 462,532,90 1 35.72 392,414,87 5 3.39 10,078,364

53.47 45.36 1.17

61.09 466,058,05 2 36.60 404,481,38 4 2.31 7,645,327

53.07 46.06 87

AVERAGE ASSETS AND GROSS SALES PER ESTABLISHMENT Year and Retailer's Nationality 1941: Filipino ......................................... .... 1,878 1,633 Item Assets (Pesos) Gross Sales (Pesos)

Chinese ........................................ ...... Others .......................................... ..... 1947: Filipino ......................................... .... Chinese ........................................ ... Others .......................................... .... 1948: (Census) Filipino ......................................... .... Chinese ........................................ ..... Others .......................................... .... 1949: Filipino ......................................... .... Chinese ........................................ ...... Others .......................................... .... 1951: Filipino ......................................... .... Chinese ........................................ ..... Others .......................................... .....

7,707 24,415

9,691 8,281

1,878 7,707 24,749

2,516 14,934 13,919

1,878 7,707 24,916

4,111 24,398 23,686

1,878 7,707 24,807

4,069 24,152 20,737

1,877 7,707 24,824

3,905 33,207 22,033

(Estimated Assets and Gross Sales of Retail Establishments, By Year and Nationality of Owners, Benchmark: 1948 Census, issued by the Bureau of Census and Statistics, Department of Commerce and Industry; pp. 18-19 of Answer.) The above statistics do not include corporations and partnerships, while the figures on Filipino establishments already include mere market vendors, whose capital is necessarily small.. The above figures reveal that in percentage distribution of assests and gross sales, alien participation has steadily increased during the years. It is true, of course, that Filipinos have the edge in the number of retailers, but aliens more than make up for the numerical gap through their assests and gross sales which average between six and seven times those of the very many Filipino retailers. Numbers in retailers, here,

do not imply superiority; the alien invests more capital, buys and sells six to seven times more, and gains much more. The same official report, pointing out to the known predominance of foreign elements in the retail trade, remarks that the Filipino retailers were largely engaged in minor retailer enterprises. As observed by respondents, the native investment is thinly spread, and the Filipino retailer is practically helpless in matters of capital, credit, price and supply. d. Alien control and threat, subject of apprehension in Constitutional convention. It is this domination and control, which we believe has been sufficiently shown to exist, that is the legislature's target in the enactment of the disputed nationalization would never have been adopted. The framers of our Constitution also believed in the existence of this alien dominance and control when they approved a resolution categorically declaring among other things, that "it is the sense of the Convention that the public interest requires the nationalization of the retail trade; . . . ." (II Aruego, The Framing of the Philippine Constitution, 662-663, quoted on page 67 of Petitioner.) That was twenty-two years ago; and the events since then have not been either pleasant or comforting. Dean Sinco of the University of the Philippines College of Law, commenting on the patrimony clause of the Preamble opines that the fathers of our Constitution were merely translating the general preoccupation of Filipinos "of the dangers from alien interests that had already brought under their control the commercial and other economic activities of the country" (Sinco, Phil. Political Law, 10th ed., p. 114); and analyzing the concern of the members of the constitutional convention for the economic life of the citizens, in connection with the nationalistic provisions of the Constitution, he says: But there has been a general feeling that alien dominance over the economic life of the country is not desirable and that if such a situation should remain, political independence alone is no guarantee to national stability and strength. Filipino private capital is not big enough to wrest from alien hands the control of the national economy. Moreover, it is but of recent formation and hence, largely inexperienced, timid and hesitant. Under such conditions, the government as the instrumentality of the national will, has to step in and assume the initiative, if not the leadership, in the struggle for the economic freedom of the nation in somewhat the same way that it did in the crusade for political freedom. Thus . . . it (the Constitution) envisages an organized movement for the protection of the nation not only against the possibilities of armed invasion but also against its economic subjugation by alien interests in the economic field. (Phil. Political Law by Sinco, 10th ed., p. 476.) Belief in the existence of alien control and predominance is felt in other quarters. Filipino businessmen, manufacturers and producers believe so; they fear the dangers coming from alien control, and they express sentiments of economic independence. Witness thereto is Resolution No. 1, approved on July 18, 1953, of the Fifth National convention of Filipino Businessmen, and a similar resolution, approved on March 20, 1954, of the Second National Convention of Manufacturers and Producers. The man in the street also believes, and fears, alien predominance and control; so our newspapers, which have editorially pointed out not only to control but to alien stranglehold. We, therefore, find alien domination and control to be a fact, a reality proved by official statistics, and felt by all the sections and groups that compose the Filipino community. e. Dangers of alien control and dominance in retail. But the dangers arising from alien participation in the retail trade does not seem to lie in the predominance alone; there is a prevailing feeling that such predominance may truly endanger the national interest. With ample capital, unity of purpose and action and thorough organization, alien retailers and merchants can act in such complete unison and concert on such vital matters as the fixing of prices, the determination of the amount of goods or articles to be made available in the market, and even the choice of the goods or articles they would or would not patronize or distribute, that fears of dislocation of the national economy and of the complete subservience of national economy and of the consuming public are not entirely unfounded. Nationals, producers and consumers alike can be placed completely at their mercy. This is easily illustrated. Suppose an article of daily use is desired to be prescribed by the aliens, because the producer or importer does not offer them sufficient profits, or because a new competing article offers bigger profits for its introduction. All that aliens would do is to agree to refuse to sell the first article, eliminating it from their stocks, offering the new one as a substitute. Hence, the producers or importers of the prescribed article, or its consumers, find the article suddenly out of the prescribed article,

or its consumers, find the article suddenly out of circulation. Freedom of trade is thus curtailed and free enterprise correspondingly suppressed. We can even go farther than theoretical illustrations to show the pernicious influences of alien domination. Grave abuses have characterized the exercise of the retail trade by aliens. It is a fact within judicial notice, which courts of justice may not properly overlook or ignore in the interests of truth and justice, that there exists a general feeling on the part of the public that alien participation in the retail trade has been attended by a pernicious and intolerable practices, the mention of a few of which would suffice for our purposes; that at some time or other they have cornered the market of essential commodities, like corn and rice, creating artificial scarcities to justify and enhance profits to unreasonable proportions; that they have hoarded essential foods to the inconvenience and prejudice of the consuming public, so much so that the Government has had to establish the National Rice and Corn Corporation to save the public from their continuous hoarding practices and tendencies; that they have violated price control laws, especially on foods and essential commodities, such that the legislature had to enact a law (Sec. 9, Republic Act No. 1168), authorizing their immediate and automatic deportation for price control convictions; that they have secret combinations among themselves to control prices, cheating the operation of the law of supply and demand; that they have connived to boycott honest merchants and traders who would not cater or yield to their demands, in unlawful restraint of freedom of trade and enterprise. They are believed by the public to have evaded tax laws, smuggled goods and money into and out of the land, violated import and export prohibitions, control laws and the like, in derision and contempt of lawful authority. It is also believed that they have engaged in corrupting public officials with fabulous bribes, indirectly causing the prevalence of graft and corruption in the Government. As a matter of fact appeals to unscrupulous aliens have been made both by the Government and by their own lawful diplomatic representatives, action which impliedly admits a prevailing feeling about the existence of many of the above practices. The circumstances above set forth create well founded fears that worse things may come in the future. The present dominance of the alien retailer, especially in the big centers of population, therefore, becomes a potential source of danger on occasions of war or other calamity. We do not have here in this country isolated groups of harmless aliens retailing goods among nationals; what we have are well organized and powerful groups that dominate the distribution of goods and commodities in the communities and big centers of population. They owe no allegiance or loyalty to the State, and the State cannot rely upon them in times of crisis or emergency. While the national holds his life, his person and his property subject to the needs of his country, the alien may even become the potential enemy of the State. f. Law enacted in interest of national economic survival and security. We are fully satisfied upon a consideration of all the facts and circumstances that the disputed law is not the product of racial hostility, prejudice or discrimination, but the expression of the legitimate desire and determination of the people, thru their authorized representatives, to free the nation from the economic situation that has unfortunately been saddled upon it rightly or wrongly, to its disadvantage. The law is clearly in the interest of the public, nay of the national security itself, and indisputably falls within the scope of police power, thru which and by which the State insures its existence and security and the supreme welfare of its citizens. VI. The Equal Protection Limitation a. Objections to alien participation in retail trade. The next question that now poses solution is, Does the law deny the equal protection of the laws? As pointed out above, the mere fact of alienage is the root and cause of the distinction between the alien and the national as a trader. The alien resident owes allegiance to the country of his birth or his adopted country; his stay here is for personal convenience; he is attracted by the lure of gain and profit. His aim or purpose of stay, we admit, is neither illegitimate nor immoral, but he is naturally lacking in that spirit of loyalty and enthusiasm for this country where he temporarily stays and makes his living, or of that spirit of regard, sympathy and consideration for his Filipino customers as would prevent him from taking advantage of their weakness and exploiting them. The faster he makes his pile, the earlier can the alien go back to his beloved country and his beloved kin and countrymen. The experience of the country is that the alien retailer has shown such utter disregard for his customers and the people on whom he makes his profit, that it has been found necessary to adopt the legislation, radical as it may seem.

Another objection to the alien retailer in this country is that he never really makes a genuine contribution to national income and wealth. He undoubtedly contributes to general distribution, but the gains and profits he makes are not invested in industries that would help the country's economy and increase national wealth. The alien's interest in this country being merely transient and temporary, it would indeed be ill-advised to continue entrusting the very important function of retail distribution to his hands. The practices resorted to by aliens in the control of distribution, as already pointed out above, their secret manipulations of stocks of commodities and prices, their utter disregard of the welfare of their customers and of the ultimate happiness of the people of the nation of which they are mere guests, which practices, manipulations and disregard do not attend the exercise of the trade by the nationals, show the existence of real and actual, positive and fundamental differences between an alien and a national which fully justify the legislative classification adopted in the retail trade measure. These differences are certainly a valid reason for the State to prefer the national over the alien in the retail trade. We would be doing violence to fact and reality were we to hold that no reason or ground for a legitimate distinction can be found between one and the other. b. Difference in alien aims and purposes sufficient basis for distinction. The above objectionable characteristics of the exercise of the retail trade by the aliens, which are actual and real, furnish sufficient grounds for legislative classification of retail traders into nationals and aliens. Some may disagree with the wisdom of the legislature's classification. To this we answer, that this is the prerogative of the law-making power. Since the Court finds that the classification is actual, real and reasonable, and all persons of one class are treated alike, and as it cannot be said that the classification is patently unreasonable and unfounded, it is in duty bound to declare that the legislature acted within its legitimate prerogative and it can not declare that the act transcends the limit of equal protection established by the Constitution. Broadly speaking, the power of the legislature to make distinctions and classifications among persons is not curtailed or denied by the equal protection of the laws clause. The legislative power admits of a wide scope of discretion, and a law can be violative of the constitutional limitation only when the classification is without reasonable basis. In addition to the authorities we have earlier cited, we can also refer to the case of Linsey vs. Natural Carbonic Fas Co. (1911), 55 L. ed., 369, which clearly and succinctly defined the application of equal protection clause to a law sought to be voided as contrary thereto: . . . . "1. The equal protection clause of the Fourteenth Amendment does not take from the state the power to classify in the adoption of police laws, but admits of the exercise of the wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis, and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety, or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis but is essentially arbitrary." c. Authorities recognizing citizenship as basis for classification. The question as to whether or not citizenship is a legal and valid ground for classification has already been affirmatively decided in this jurisdiction as well as in various courts in the United States. In the case of Smith Bell & Co. vs. Natividad, 40 Phil. 136, where the validity of Act No. 2761 of the Philippine Legislature was in issue, because of a condition therein limiting the ownership of vessels engaged in coastwise trade to corporations formed by citizens of the Philippine Islands or the United States, thus denying the right to aliens, it was held that the Philippine Legislature did not violate the equal protection clause of the Philippine Bill of Rights. The legislature in enacting the law had as ultimate purpose the encouragement of Philippine shipbuilding and the safety for these Islands from foreign interlopers. We held that this was a valid exercise of the police power, and all presumptions are in favor of its constitutionality. In substance, we held that the limitation of domestic ownership of vessels engaged in coastwise trade to citizens of the Philippines does not violate the equal protection of the law and due process or law clauses of the Philippine Bill of Rights. In rendering said decision we quoted with approval the concurring opinion of Justice Johnson in the case of Gibbons vs. Ogden, 9 Wheat., I, as follows:

"Licensing acts, in fact, in legislation, are universally restraining acts; as, for example, acts licensing gaming houses, retailers of spirituous liquors, etc. The act, in this instance, is distinctly of that character, and forms part of an extensive system, the object of which is to encourage American shipping, and place them on an equal footing with the shipping of other nations. Almost every commercial nation reserves to its own subjects a monopoly of its coasting trade; and a countervailing privilege in favor of American shipping is contemplated, in the whole legislation of the United States on this subject. It is not to give the vessel an American character, that the license is granted; that effect has been correctly attributed to the act of her enrollment. But it is to confer on her American privileges, as contra distinguished from foreign; and to preserve the Government from fraud by foreigners; in surreptitiously intruding themselves into the American commercial marine, as well as frauds upon the revenue in the trade coastwise, that this whole system is projected." The rule in general is as follows: Aliens are under no special constitutional protection which forbids a classification otherwise justified simply because the limitation of the class falls along the lines of nationality. That would be requiring a higher degree of protection for aliens as a class than for similar classes than for similar classes of American citizens. Broadly speaking, the difference in status between citizens and aliens constitutes a basis for reasonable classification in the exercise of police power. (2 Am., Jur. 468469.) In Commonwealth vs. Hana, 81 N. E. 149 (Massachusetts, 1907), a statute on the licensing of hawkers and peddlers, which provided that no one can obtain a license unless he is, or has declared his intention, to become a citizen of the United States, was held valid, for the following reason: It may seem wise to the legislature to limit the business of those who are supposed to have regard for the welfare, good order and happiness of the community, and the court cannot question this judgment and conclusion. In Bloomfield vs. State, 99 N. E. 309 (Ohio, 1912), a statute which prevented certain persons, among them aliens, from engaging in the traffic of liquors, was found not to be the result of race hatred, or in hospitality, or a deliberate purpose to discriminate, but was based on the belief that an alien cannot be sufficiently acquainted with "our institutions and our life as to enable him to appreciate the relation of this particular business to our entire social fabric", and was not, therefore, invalid. In Ohio ex rel. Clarke vs. Deckebach, 274 U. S. 392, 71 L. ed. 115 (1926), the U.S. Supreme Court had under consideration an ordinance of the city of Cincinnati prohibiting the issuance of licenses (pools and billiard rooms) to aliens. It held that plainly irrational discrimination against aliens is prohibited, but it does not follow that alien race and allegiance may not bear in some instances such a relation to a legitimate object of legislation as to be made the basis of permitted classification, and that it could not state that the legislation is clearly wrong; and that latitude must be allowed for the legislative appraisement of local conditions and for the legislative choice of methods for controlling an apprehended evil. The case of State vs. Carrol, 124 N. E. 129 (Ohio, 1919) is a parallel case to the one at bar. In Asakura vs. City of Seattle, 210 P. 30 (Washington, 1922), the business of pawn brooking was considered as having tendencies injuring public interest, and limiting it to citizens is within the scope of police power. A similar statute denying aliens the right to engage in auctioneering was also sustained in Wright vs. May, L.R.A., 1915 P. 151 (Minnesota, 1914). So also in Anton vs. Van Winkle, 297 F. 340 (Oregon, 1924), the court said that aliens are judicially known to have different interests, knowledge, attitude, psychology and loyalty, hence the prohibitions of issuance of licenses to them for the business of pawnbroker, pool, billiard, card room, dance hall, is not an infringement of constitutional rights. In Templar vs. Michigan State Board of Examiners, 90 N.W. 1058 (Michigan, 1902), a law prohibiting the licensing of aliens as barbers was held void, but the reason for the decision was the court's findings that the exercise of the business by the aliens does not in any way affect the morals, the health, or even the convenience of the community. In Takahashi vs. Fish and Game Commission, 92 L. ed. 1479 (1947), a California statute banning the issuance of commercial fishing licenses to person ineligible to citizenship was held void, because the law conflicts with Federal power over immigration, and because there is no public interest in the mere claim of ownership of the waters and the fish in them, so there was no adequate justification for the discrimination. It further added that the law was the outgrowth of antagonism toward the persons of Japanese ancestry. However, two Justices dissented on the theory that fishing rights have been treated traditionally as natural resources. In Fraser vs. McConway & Tarley Co., 82 Fed. 257 (Pennsylvania, 1897), a state law which imposed a tax on every employer of foreign-born unnaturalized male persons over 21 years of age, was declared void because the court found that there was no reason for the classification and the tax was an arbitrary deduction from the daily wage of an employee.

d. Authorities contra explained. It is true that some decisions of the Federal court and of the State courts in the United States hold that the distinction between aliens and citizens is not a valid ground for classification. But in this decision the laws declared invalid were found to be either arbitrary, unreasonable or capricious, or were the result or product of racial antagonism and hostility, and there was no question of public interest involved or pursued. In Yu Cong Eng vs. Trinidad, 70 L. ed. 1059 (1925), the United States Supreme Court declared invalid a Philippine law making unlawful the keeping of books of account in any language other than English, Spanish or any other local dialect, but the main reasons for the decisions are: (1) that if Chinese were driven out of business there would be no other system of distribution, and (2) that the Chinese would fall prey to all kinds of fraud, because they would be deprived of their right to be advised of their business and to direct its conduct. The real reason for the decision, therefore, is the court's belief that no public benefit would be derived from the operations of the law and on the other hand it would deprive Chinese of something indispensable for carrying on their business. In Yick Wo vs. Hopkins, 30 L. ed 220 (1885) an ordinance conferring powers on officials to withhold consent in the operation of laundries both as to persons and place, was declared invalid, but the court said that the power granted was arbitrary, that there was no reason for the discrimination which attended the administration and implementation of the law, and that the motive thereof was mere racial hostility. In State vs. Montgomery, 47 A. 165 (Maine, 1900), a law prohibiting aliens to engage as hawkers and peddlers was declared void, because the discrimination bore no reasonable and just relation to the act in respect to which the classification was proposed. The case at bar is radically different, and the facts make them so. As we already have said, aliens do not naturally possess the sympathetic consideration and regard for the customers with whom they come in daily contact, nor the patriotic desire to help bolster the nation's economy, except in so far as it enhances their profit, nor the loyalty and allegiance which the national owes to the land. These limitations on the qualifications of the aliens have been shown on many occasions and instances, especially in times of crisis and emergency. We can do no better than borrow the language of Anton vs. Van Winkle, 297 F. 340, 342, to drive home the reality and significance of the distinction between the alien and the national, thus: . . . . It may be judicially known, however, that alien coming into this country are without the intimate knowledge of our laws, customs, and usages that our own people have. So it is likewise known that certain classes of aliens are of different psychology from our fellow countrymen. Furthermore, it is natural and reasonable to suppose that the foreign born, whose allegiance is first to their own country, and whose ideals of governmental environment and control have been engendered and formed under entirely different regimes and political systems, have not the same inspiration for the public weal, nor are they as well disposed toward the United States, as those who by citizenship, are a part of the government itself. Further enlargement, is unnecessary. I have said enough so that obviously it cannot be affirmed with absolute confidence that the Legislature was without plausible reason for making the classification, and therefore appropriate discriminations against aliens as it relates to the subject of legislation. . . . . VII. The Due Process of Law Limitation. a. Reasonability, the test of the limitation; determination by legislature decisive. We now come to due process as a limitation on the exercise of the police power. It has been stated by the highest authority in the United States that: . . . . And the guaranty of due process, as has often been held, demands only that the law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the subject sought to be attained. . . . . xxx xxx xxx

So far as the requirement of due process is concerned and in the absence of other constitutional restriction a state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare, and to enforce that policy by legislation adapted to its purpose. The courts are without authority either to declare such policy, or, when it is declared by the legislature, to

override it. If the laws passed are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied, and judicial determination to that effect renders a court functus officio. . . . (Nebbia vs. New York, 78 L. ed. 940, 950, 957.) Another authority states the principle thus: . . . . Too much significance cannot be given to the word "reasonable" in considering the scope of the police power in a constitutional sense, for the test used to determine the constitutionality of the means employed by the legislature is to inquire whether the restriction it imposes on rights secured to individuals by the Bill of Rights are unreasonable, and not whether it imposes any restrictions on such rights. . . . xxx xxx xxx

. . . . A statute to be within this power must also be reasonable in its operation upon the persons whom it affects, must not be for the annoyance of a particular class, and must not be unduly oppressive. (11 Am. Jur. Sec. 302., 1:1)- 1074-1075.) In the case of Lawton vs. Steele, 38 L. ed. 385, 388. it was also held: . . . . To justify the state in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. . . . Prata Undertaking Co. vs. State Board of Embalming, 104 ALR, 389, 395, fixes this test of constitutionality: In determining whether a given act of the Legislature, passed in the exercise of the police power to regulate the operation of a business, is or is not constitutional, one of the first questions to be considered by the court is whether the power as exercised has a sufficient foundation in reason in connection with the matter involved, or is an arbitrary, oppressive, and capricious use of that power, without substantial relation to the health, safety, morals, comfort, and general welfare of the public. b. Petitioner's argument considered. Petitioner's main argument is that retail is a common, ordinary occupation, one of those privileges long ago recognized as essential to the orderly pursuant of happiness by free men; that it is a gainful and honest occupation and therefore beyond the power of the legislature to prohibit and penalized. This arguments overlooks fact and reality and rests on an incorrect assumption and premise, i.e., that in this country where the occupation is engaged in by petitioner, it has been so engaged by him, by the alien in an honest creditable and unimpeachable manner, without harm or injury to the citizens and without ultimate danger to their economic peace, tranquility and welfare. But the Legislature has found, as we have also found and indicated, that the privilege has been so grossly abused by the alien, thru the illegitimate use of pernicious designs and practices, that he now enjoys a monopolistic control of the occupation and threatens a deadly stranglehold on the nation's economy endangering the national security in times of crisis and emergency. The real question at issue, therefore, is not that posed by petitioner, which overlooks and ignores the facts and circumstances, but this, Is the exclusion in the future of aliens from the retail trade unreasonable. Arbitrary capricious, taking into account the illegitimate and pernicious form and manner in which the aliens have heretofore engaged therein? As thus correctly stated the answer is clear. The law in question is deemed absolutely necessary to bring about the desired legislative objective, i.e., to free national economy from alien control and dominance. It is not necessarily unreasonable because it affects private rights and privileges (11 Am. Jur. pp. 1080-1081.) The test of reasonableness of a law is the appropriateness or adequacy under all circumstances of the means adopted to carry out its purpose into effect (Id.) Judged by this test, disputed legislation, which is not merely reasonable but actually necessary, must be considered not to have infringed the constitutional limitation of reasonableness.

The necessity of the law in question is explained in the explanatory note that accompanied the bill, which later was enacted into law: This bill proposes to regulate the retail business. Its purpose is to prevent persons who are not citizens of the Philippines from having a strangle hold upon our economic life. If the persons who control this vital artery of our economic life are the ones who owe no allegiance to this Republic, who have no profound devotion to our free institutions, and who have no permanent stake in our people's welfare, we are not really the masters of our destiny. All aspects of our life, even our national security, will be at the mercy of other people. In seeking to accomplish the foregoing purpose, we do not propose to deprive persons who are not citizens of the Philippines of their means of livelihood. While this bill seeks to take away from the hands of persons who are not citizens of the Philippines a power that can be wielded to paralyze all aspects of our national life and endanger our national security it respects existing rights. The approval of this bill is necessary for our national survival. If political independence is a legitimate aspiration of a people, then economic independence is none the less legitimate. Freedom and liberty are not real and positive if the people are subject to the economic control and domination of others, especially if not of their own race or country. The removal and eradication of the shackles of foreign economic control and domination, is one of the noblest motives that a national legislature may pursue. It is impossible to conceive that legislation that seeks to bring it about can infringe the constitutional limitation of due process. The attainment of a legitimate aspiration of a people can never be beyond the limits of legislative authority. c. Law expressly held by Constitutional Convention to be within the sphere of legislative action. The framers of the Constitution could not have intended to impose the constitutional restrictions of due process on the attainment of such a noble motive as freedom from economic control and domination, thru the exercise of the police power. The fathers of the Constitution must have given to the legislature full authority and power to enact legislation that would promote the supreme happiness of the people, their freedom and liberty. On the precise issue now before us, they expressly made their voice clear; they adopted a resolution expressing their belief that the legislation in question is within the scope of the legislative power. Thus they declared the their Resolution: That it is the sense of the Convention that the public interest requires the nationalization of retail trade; but it abstain from approving the amendment introduced by the Delegate for Manila, Mr. Araneta, and others on this matter because it is convinced that the National Assembly is authorized to promulgate a law which limits to Filipino and American citizens the privilege to engage in the retail trade. (11 Aruego, The Framing of the Philippine Constitution, quoted on pages 66 and 67 of the Memorandum for the Petitioner.) It would do well to refer to the nationalistic tendency manifested in various provisions of the Constitution. Thus in the preamble, a principle objective is the conservation of the patrimony of the nation and as corollary the provision limiting to citizens of the Philippines the exploitation, development and utilization of its natural resources. And in Section 8 of Article XIV, it is provided that "no franchise, certificate, or any other form of authorization for the operation of the public utility shall be granted except to citizens of the Philippines." The nationalization of the retail trade is only a continuance of the nationalistic protective policy laid down as a primary objective of the Constitution. Can it be said that a law imbued with the same purpose and spirit underlying many of the provisions of the Constitution is unreasonable, invalid and unconstitutional? The seriousness of the Legislature's concern for the plight of the nationals as manifested in the approval of the radical measures is, therefore, fully justified. It would have been recreant to its duties towards the country and its people would it view the sorry plight of the nationals with the complacency and refuse or neglect to adopt a remedy commensurate with the demands of public interest and national survival. As the repository of the sovereign power of legislation, the Legislature was in duty bound to face the problem and meet, through adequate measures, the danger and threat that alien domination of retail trade poses to national economy.

d. Provisions of law not unreasonable. A cursory study of the provisions of the law immediately reveals how tolerant, how reasonable the Legislature has been. The law is made prospective and recognizes the right and privilege of those already engaged in the occupation to continue therein during the rest of their lives; and similar recognition of the right to continue is accorded associations of aliens. The right or privilege is denied to those only upon conviction of certain offenses. In the deliberations of the Court on this case, attention was called to the fact that the privilege should not have been denied to children and heirs of aliens now engaged in the retail trade. Such provision would defeat the law itself, its aims and purposes. Beside, the exercise of legislative discretion is not subject to judicial review. It is well settled that the Court will not inquire into the motives of the Legislature, nor pass upon general matters of legislative judgment. The Legislature is primarily the judge of the necessity of an enactment or of any of its provisions, and every presumption is in favor of its validity, and though the Court may hold views inconsistent with the wisdom of the law, it may not annul the legislation if not palpably in excess of the legislative power. Furthermore, the test of the validity of a law attacked as a violation of due process, is not its reasonableness, but its unreasonableness, and we find the provisions are not unreasonable. These principles also answer various other arguments raised against the law, some of which are: that the law does not promote general welfare; that thousands of aliens would be thrown out of employment; that prices will increase because of the elimination of competition; that there is no need for the legislation; that adequate replacement is problematical; that there may be general breakdown; that there would be repercussions from foreigners; etc. Many of these arguments are directed against the supposed wisdom of the law which lies solely within the legislative prerogative; they do not import invalidity. VIII. Alleged defect in the title of the law A subordinate ground or reason for the alleged invalidity of the law is the claim that the title thereof is misleading or deceptive, as it conceals the real purpose of the bill which is to nationalize the retail business and prohibit aliens from engaging therein. The constitutional provision which is claimed to be violated in Section 21 (1) of Article VI, which reads: No bill which may be enacted in the law shall embrace more than one subject which shall be expressed in the title of the bill. What the above provision prohibits is duplicity, that is, if its title completely fails to appraise the legislators or the public of the nature, scope and consequences of the law or its operation (I Sutherland, Statutory Construction, Sec. 1707, p. 297.) A cursory consideration of the title and the provisions of the bill fails to show the presence of duplicity. It is true that the term "regulate" does not and may not readily and at first glance convey the idea of "nationalization" and "prohibition", which terms express the two main purposes and objectives of the law. But "regulate" is a broader term than either prohibition or nationalization. Both of these have always been included within the term regulation. Under the title of an act to "regulate", the sale of intoxicating liquors, the Legislature may prohibit the sale of intoxicating liquors. (Sweet vs. City of Wabash, 41 Ind., 7; quoted in page 41 of Answer.) Within the meaning of the Constitution requiring that the subject of every act of the Legislature shall be stated in the tale, the title to regulate the sale of intoxicating liquors, etc." sufficiently expresses the subject of an act prohibiting the sale of such liquors to minors and to persons in the habit of getting intoxicated; such matters being properly included within the subject of regulating the sale. (Williams vs. State, 48 Ind. 306, 308, quoted in p. 42 of Answer.) The word "regulate" is of broad import, and necessarily implies some degree of restraint and prohibition of acts usually done in connection with the thing to be regulated. While word regulate does not ordinarily convey meaning of prohibit, there is no absolute reason why it should not have such meaning when used in delegating police power in connection with a thing the best or only efficacious regulation of which involves suppression. (State vs. Morton, 162 So. 718, 182 La. 887, quoted in p. 42 of Answer.) The general rule is for the use of general terms in the title of a bill; it has also been said that the title need not be an index to the entire contents of the law (I Sutherland, Statutory Construction, See. 4803, p. 345.)

The above rule was followed the title of the Act in question adopted the more general term "regulate" instead of "nationalize" or "prohibit". Furthermore, the law also contains other rules for the regulation of the retail trade which may not be included in the terms "nationalization" or "prohibition"; so were the title changed from "regulate" to "nationalize" or "prohibit", there would have been many provisions not falling within the scope of the title which would have made the Act invalid. The use of the term "regulate", therefore, is in accord with the principle governing the drafting of statutes, under which a simple or general term should be adopted in the title, which would include all other provisions found in the body of the Act. One purpose of the constitutional directive that the subject of a bill should be embraced in its title is to apprise the legislators of the purposes, the nature and scope of its provisions, and prevent the enactment into law of matters which have received the notice, action and study of the legislators or of the public. In the case at bar it cannot be claimed that the legislators have been appraised of the nature of the law, especially the nationalization and the prohibition provisions. The legislators took active interest in the discussion of the law, and a great many of the persons affected by the prohibitions in the law conducted a campaign against its approval. It cannot be claimed, therefore, that the reasons for declaring the law invalid ever existed. The objection must therefore, be overruled. IX. Alleged violation of international treaties and obligations Another subordinate argument against the validity of the law is the supposed violation thereby of the Charter of the United Nations and of the Declaration of the Human Rights adopted by the United Nations General Assembly. We find no merit in the Nations Charter imposes no strict or legal obligations regarding the rights and freedom of their subjects (Hans Kelsen, The Law of the United Nations, 1951 ed. pp. 29-32), and the Declaration of Human Rights contains nothing more than a mere recommendation or a common standard of achievement for all peoples and all nations (Id. p. 39.) That such is the import of the United Nations Charter aid of the Declaration of Human Rights can be inferred the fact that members of the United Nations Organizations, such as Norway and Denmark, prohibit foreigners from engaging in retail trade, and in most nations of the world laws against foreigners engaged in domestic trade are adopted. The Treaty of Amity between the Republic of the Philippines and the Republic of China of April 18, 1947 is also claimed to be violated by the law in question. All that the treaty guarantees is equality of treatment to the Chinese nationals "upon the same terms as the nationals of any other country." But the nationals of China are not discriminating against because nationals of all other countries, except those of the United States, who are granted special rights by the Constitution, are all prohibited from engaging in the retail trade. But even supposing that the law infringes upon the said treaty, the treaty is always subject to qualification or amendment by a subsequent law (U. S. vs. Thompson, 258, Fed. 257, 260), and the same may never curtail or restrict the scope of the police power of the State (plaston vs. Pennsylvania, 58 L. ed. 539.) X. Conclusion Resuming what we have set forth above we hold that the disputed law was enacted to remedy a real actual threat and danger to national economy posed by alien dominance and control of the retail business and free citizens and country from dominance and control; that the enactment clearly falls within the scope of the police power of the State, thru which and by which it protects its own personality and insures its security and future; that the law does not violate the equal protection clause of the Constitution because sufficient grounds exist for the distinction between alien and citizen in the exercise of the occupation regulated, nor the due process of law clause, because the law is prospective in operation and recognizes the privilege of aliens already engaged in the occupation and reasonably protects their privilege; that the wisdom and efficacy of the law to carry out its objectives appear to us to be plainly evident as a matter of fact it seems not only appropriate but actually necessary and that in any case such matter falls within the prerogative of the Legislature, with whose power and discretion the Judicial department of the Government may not interfere; that the provisions of the law are clearly embraced in the title, and this suffers from no duplicity and has not misled the legislators or the segment of the population affected; and that it cannot be said to be void for supposed conflict with treaty obligations because no treaty has actually been entered into on the subject and the police power may not be curtailed or surrendered by any treaty or any other conventional agreement.

Some members of the Court are of the opinion that the radical effects of the law could have been made less harsh in its impact on the aliens. Thus it is stated that the more time should have been given in the law for the liquidation of existing businesses when the time comes for them to close. Our legal duty, however, is merely to determine if the law falls within the scope of legislative authority and does not transcend the limitations of due process and equal protection guaranteed in the Constitution. Remedies against the harshness of the law should be addressed to the Legislature; they are beyond our power and jurisdiction. The petition is hereby denied, with costs against petitioner. Paras, C.J., Bengzon, Reyes, A., Bautista Angelo, Concepcion, Reyes, J.B.L., Endencia and Felix, JJ., concur.

Separate Opinions PADILLA, J., concurring and dissenting: I agree to the proposition, principle or rule that courts may not inquire into the wisdom of an the Act passed by the Congress and duly approved by the President of the Republic. But the rule does not preclude courts from inquiring and determining whether the Act offends against a provision or provisions of the Constitution. I am satisfied that the Act assailed as violative of the due process of law and the equal protection of the laws clauses of the Constitution does not infringe upon them, insofar as it affects associations, partnership or corporations, the capital of which is not wholly owned by the citizens of the Philippines, and aliens, who are not and have not been engaged in the retail business. I am, however, unable to persuade myself that it does not violate said clauses insofar as the Act applies to associations and partnerships referred to in the Act and to aliens, who are and have heretofore been engaged in said business. When they did engage in the retail business there was no prohibition on or against them to engage in it. They assumed and believed in good faith they were entitled to engaged in the business. The Act allows aliens to continue in business until their death or voluntary retirement from the business or forfeiture of their license; and corporations, associations or partnership, the capital of which is not wholly owned by the citizens of the Philippines to continue in the business for a period of ten years from the date of the approval of the Act (19 June 1954) or until the expiry of term of the existence of the association or partnership or corporation, whichever event comes first. The prohibition on corporations, the capital of which is not wholly owned by citizens of the Philippines, to engage in the retail business for a period of more than ten years from the date of the approval of the Act or beyond the term of their corporate existence, whichever event comes first, is valid and lawful, because the continuance of the existence of such corporations is subject to whatever the Congress may impose reasonably upon them by subsequent legislation.1 But the prohibition to engage in the retail business by associations and partnerships, the capital of which is not wholly owned by citizen of the Philippines, after ten years from the date of the approval of the Act, even before the end of the term of their existence as agreed upon by the associates and partners, and by alien heirs to whom the retail business is transmitted by the death of an alien engaged in the business, or by his executor or administrator, amounts to a deprivation of their property without due process of law. To my mind, the ten-year period from the date of the approval of the Act or until the expiration of the term of the existence of the association and partnership, whichever event comes first, and the six-month period granted to alien heirs of a deceased alien, his executor or administrator, to liquidate the business, do not cure the defect of the law, because the effect of the prohibition is to compel them to sell or dispose of their business. The price obtainable at such forced sale of the business would be inadequate to reimburse and compensate the associates or partners of the associations or partnership, and the alien heirs of a deceased alien, engaged in the retail business for the capital invested in it. The stock of merchandise bought and sold at retail does not alone constitute the business. The goodwill that the association, partnership and the alien had built up during a long period of effort, patience and perseverance forms part of such business. The constitutional provisions that no person shall be deprived of his property without due process of law2 and that no person shall be denied the equal protection of the laws3 would have no meaning as applied to associations or partnership and alien heirs of an alien engaged in the retail business if they were to be compelled to sell or dispose of their business within ten years from the date of the approval of the Act and before the end of the term of the existence of the associations and partnership as agreed upon by the associations and partners and within six months after the death of their predecessor-in-interest.

The authors of the Constitution were vigilant, careful and zealous in the safeguard of the ownership of private agricultural lands which together with the lands of the public domain constitute the priceless patrimony and mainstay of the nation; yet, they did not deem it wise and prudent to deprive aliens and their heirs of such lands.4 For these reasons, I am of the opinion that section 1 of the Act, insofar as it compels associations and partnership referred to therein to wind up their retail business within ten years from the date of the approval of the Act even before the expiry of the term of their existence as agreed upon by the associates and partners and section 3 of the Act, insofar as it compels the aliens engaged in the retail business in his lifetime his executor or administrator, to liquidate the business, are invalid, for they violate the due process of law and the equal protection of the laws clauses of the Constitution.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. L-98050 March 17, 1994 PHILIPPINE PHOSPHATE FERTILIZER CORPORATION, petitioner, vs. HON. RUBEN D. TORRES, Secretary of Labor and Employment, HON. RODOLFO S. MILADO, Department of Labor and Employment Mediator-Arbiter for Region VIII, Tacloban, City, and PHILPHOS MOVEMENT FOR PROGRESS, INC. (PMPI), respondents. Quiroz, Dumas & Henares Law Offices for petitioner. Seno, Mendoza & Associates for private respondent Philphos Movement for Progress, Inc.

BELLOSILLO, J.: PHILIPPINE PHOSPHATE FERTILIZER CORPORATION (PHILPHOS) assails the decision of the Secretary of Labor of 7 August 1990 affirming the order of the Mediator-Arbiter of 28 March 1990 which directed the immediate conduct of a certification election among the supervisory, professional or technical, and confidential employees of petitioner corporation. On 7 July 1989, Philphos Movement for Progress, Inc. (PMPI for brevity), filed with the Department of Labor and Employment a petition for certification election among the supervisory employees of petitioner, alleging that as a supervisory union duly registered with the Department of Labor and Employment it was seeking to represent the supervisory employees of Philippine Phosphate Fertilizer Corporation. The petition for certification election filed by PMPI was not opposed by PHILPHOS. In fact, on 11 August 1989, PHILPHOS submitted a position paper with the Mediator-Arbiter stating that its management welcomed the creation of a supervisory employees' union provided the necessary requisites of law were properly observed, but exempting from the union its superintendents who were managerial and not supervisory employees as they managed a division, subdivision or section, and were vested with powers or prerogatives to lay down and execute management policies. PHILPHOS also asserted that its professional or technical employees were not within the definition of supervisory employees under the Labor Code as they were immediately under the direction and supervision of its superintendents and supervisors. Moreover, the professional and technical employees did not have a staff of workers under them. Consequently, petitioner prayed for the exclusion of its superintendents and professional/technical employees from the PMPI supervisory union. On 13 October 1989, Mediator-Arbiter Rodolfo S. Milado issued an order directing the holding of a certification election among the supervisory employees of petitioner, excluding therefrom the superintendents and the professional and technical employees. He also directed the parties to attend the pre-election conference on 19 April 1990 for the determination of the mechanics of the election process and the qualifications and eligibility of those allowed to vote. On 15 November 1989, PMPI filed an amended petition with the Mediator-Arbiter wherein it sought to represent not only the supervisory employees of petitioner but also its professional/technical and confidential employees. The amended petition was filed in view of the amendment of the PMPI Construction which included in its membership the professional/technical and confidential employees.

On 14 December 1989, the parties therein agreed to submit their respective position papers and to consider the amended petition submitted for decision on the basis thereof and related documents. On 28 March 1990, Mediator-Arbiter Milado issued an order granting the petition and directing the holding of a certification election among the "supervisory, professional (engineers, analysts, mechanics, accountants, nurses, midwives, etc.), technical, and confidential employees" 1 to comprise the proposed bargaining unit. On 16 April 1990, PHILPHOS appealed the order of 28 March 1990 to the Secretary of Labor and Employment who on 7 August 1990 rendered a decision through Undersecretary Bienvenido Laguesma dismissing the appeal. PHILPHOS moved for reconsideration but the same was denied; hence, the instant petition alleging grave abuse of discretion on the part of public respondents in rendering the assailed rulings. On 8 July 1991, this Court issued a temporary restraining order enjoining respondents from holding the certification election among petitioner's supervisory, professional/technical, and confidential employees scheduled on 12 July 1991. There are two (2) issues raised by petitioner: (1) whether it was denied due process in the proceedings before respondent Mediator-Arbiter; and, (2) whether its professional/technical and confidential employees may validly join respondent PMPI union which is composed of supervisors. PHILPHOS claims that it was denied due process when respondent Mediator-Arbiter granted the amended petition of respondent PMPI without according PHILPHOS a new opportunity to be heard. We do not see it the way PHILPHOS does here. The essence of due process is simply an opportunity to be heard or, as applied to administrative proceedings, an opportunity to explain one's side or an opportunity to seek a reconsideration of the action or ruling complained of. 2 Where, as in the instant case, petitioner PHILPHOS agreed to file its position paper with the Mediator-Arbiter and to consider the case submitted for decision on the basis of the position papers filed by the parties, there was sufficient compliance with the requirement of due process, as petitioner was afforded reasonable opportunity to present its side. 3 Moreover, petitioner could have, if it so desired, insisted on a hearing to confront and examine the witnesses of the other party. But it did not; 4 instead, it opted to submit its position paper with the Mediator-Arbiter. Besides, petitioner had all the opportunity to ventilate its arguments in its appeal to the Secretary of Labor. As regards the second issue, we are with petitioner that being a supervisory union, respondent PMPI cannot represent the professional/technical and confidential employees of petitioner whose positions we find to be more of the rank and file than supervisory. With the enactment in March 1989 of R.A. 6715, employees were thereunder reclassified into three (3) groups, namely: (a) managerial employees, (b) supervisory employees, and (c) rank and file employees. The category of supervisory employees is once again recognized in the present law. Article 212, par. (m), of the Labor Code, as amended, provides, that "(s)upervisory employees are those who, in the interest of the employer, effectively recommend such managerial actions if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment." The definition of managerial employees is limited to those having authority to hire and fire, while those who only recommend effectively the hiring or firing or transfer of personnel; are considered closer to rank and file employees. The exclusion therefore of mid-level executives from the category of managers has brought about a third classification, the supervisory employees. The peculiar role of supervisors is such that while they are not managers, when they recommend action implementing management policy or ask for the discipline or dismissal of subordinates, they identify with the interests of the employer and may act contrary to the interests of the rank and file. 5 In its position paper submitted to the Mediator-Arbiter, petitioner described the positions and functions of its professional/technical employees, (engineers, analysts, mechanics, accountants, nurses, and midwives). The guidelines, which were not refuted by respondent PMPI, state:

. . . . Professional and Technical positions are those whose primary duty consists of the performance of work directly related to management programs; who customarily, regularly and routinarily exercise judgment in the application of concepts, methods, systems and procedures in their respective fields of specialization; who regularly and directly assist a managerial and/or supervisory employee, execute under general supervision, work along specialized or technical lines requiring special training, experience or knowledge, or execute under general supervision special assignments and task . . . . They are immediately under the direction and supervision of supervisors or superintendents. They have no men under them but are regularly called upon by their supervisors or superintendents on some technical matters. 6 Moreover, Herculano, A. Duhaylungsod, Personnel Officer of petitioner, attested that there was no community of interests between the supervisors of petitioner and the professional/technical employees; that as of 25 July 1990, personnel records showed that there were 125 supervisors and 271 professional/technical employees; that of the 271 professional/technical employees, 150 were directly under and being supervised by supervisors, while the rest were staff members of superintendents. 7 The certification of Personnel Officer Duhaylungsod that its professional/technical employees occupy positions that are non-supervisory is evidence that said employees belong to the rank and file. 8 Quite obviously, these professional/technical employees cannot effectively recommend managerial actions with the use of independent judgment because they are under the supervision of superintendents and supervisors. Because it is unrefuted that these professional/technical employees are performing nonsupervisory functions, hence considered admitted, they should be classified, at least for purposes of this case, as rank and file employees. Consequently, these professional/technical employees cannot be allowed to join a union composed of supervisors. Conversely, supervisory employees cannot join a labor organization of employees under their supervision but may validly form a separate organization of their own. 9 This is provided in Art. 245 of the Labor Code, as amended by R.A. No. 6715, to wit: . . . Managerial employees are not eligible to join, assist or form any labor organization. Supervisory employees shall not be eligible for membership in a labor organization of the rank and file employees but may join, assist or form separate labor organizations of their own. Respondent PMPI is supposed to be a union of 125 supervisors. If the professional/technical employees are included as members, and records show that they are 271 in all or much more than the supervisors, then PMPI will turn out to be a rank and file union with the supervisors as members. This is precisely the situation which the law prohibits. It would create an obvious conflict of views among the members, or at least between two (2) groups of members espousing opposing interests. The intent of the law is to avoid a situation where supervisors would merge with the rank and file, or where the supervisors' labor organization would represent conflicting interests, especially where, as in the case at bar, the supervisors will be commingling with those employees whom they directly supervise in their own bargaining unit. Members of the supervisory union might refuse to carry out disciplinary measures against their co-member rank and file employees. 10 Supervisors have the right to form their own union or labor organization. What the law prohibits is a union whose membership comprises of supervisors merging with the rank and file employees because this is where conflict of interests may arise in the areas of discipline, collective bargaining and strikes. 11 The professional/technical employees of petitioner therefore may join the existing rank and file union, or form a union separate and distinct from the existing union organized by the rank and file employees of the same company. As to the confidential employees of the petitioner, the latter has not shown any proof or compelling reason to exclude them from joining respondent PMPI and from participating in the certification election, unless these confidential employees are the same professional/technical employees whom we find to be occupying rank and file positions. WHEREFORE, the petition is GRANTED. The decision of respondent Secretary of Labor of 7 August 1990, as well as the order of the respondent Mediator-Arbiter of 28 March 1990, is SET ASIDE. The

professional/technical employees of petitioner Philippine Phosphate Fertilizer Corporation (PHILPHOS) are declared disqualified from affiliating with respondent Philphos Movement for Progress, Inc. (PMPI). The Department of Labor is directed to order immediately the conduct of certification election among the supervisory employees of petitioner, particularly excluding therefrom its professional and technical employees. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 74457 March 20, 1987 RESTITUTO YNOT, petitioner, vs. INTERMEDIATE APPELLATE COURT, THE STATION COMMANDER, INTEGRATED NATIONAL POLICE, BAROTAC NUEVO, ILOILO and THE REGIONAL DIRECTOR, BUREAU OF ANIMAL INDUSTRY, REGION IV, ILOILO CITY, respondents. Ramon A. Gonzales for petitioner.

CRUZ, J.: The essence of due process is distilled in the immortal cry of Themistocles to Alcibiades "Strike but hear me first!" It is this cry that the petitioner in effect repeats here as he challenges the constitutionality of Executive Order No. 626-A. The said executive order reads in full as follows: WHEREAS, the President has given orders prohibiting the interprovincial movement of carabaos and the slaughtering of carabaos not complying with the requirements of Executive Order No. 626 particularly with respect to age; WHEREAS, it has been observed that despite such orders the violators still manage to circumvent the prohibition against inter-provincial movement of carabaos by transporting carabeef instead; and WHEREAS, in order to achieve the purposes and objectives of Executive Order No. 626 and the prohibition against interprovincial movement of carabaos, it is necessary to strengthen the said Executive Order and provide for the disposition of the carabaos and carabeef subject of the violation; NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by the Constitution, do hereby promulgate the following: SECTION 1. Executive Order No. 626 is hereby amended such that henceforth, no carabao regardless of age, sex, physical condition or purpose and no carabeef shall be transported from one province to another. The carabao or carabeef transported in violation of this Executive Order as amended shall be subject to confiscation and forfeiture by the government, to be distributed to charitable institutions and other similar institutions as the Chairman of the National Meat Inspection Commission may ay see fit, in the case of carabeef, and to deserving farmers through dispersal as the Director of Animal Industry may see fit, in the case of carabaos. SECTION 2. This Executive Order shall take effect immediately. Done in the City of Manila, this 25th day of October, in the year of Our Lord, nineteen hundred and eighty. (SGD.) FERDINAND E. MARCOS

President Republic of the Philippines The petitioner had transported six carabaos in a pump boat from Masbate to Iloilo on January 13, 1984, when they were confiscated by the police station commander of Barotac Nuevo, Iloilo, for violation of the above measure. 1 The petitioner sued for recovery, and the Regional Trial Court of Iloilo City issued a writ of replevin upon his filing of a supersedeas bond of P12,000.00. After considering the merits of the case, the court sustained the confiscation of the carabaos and, since they could no longer be produced, ordered the confiscation of the bond. The court also declined to rule on the constitutionality of the executive order, as raise by the petitioner, for lack of authority and also for its presumed validity. 2 The petitioner appealed the decision to the Intermediate Appellate Court,* and he has now come before us in this petition for review on certiorari.
3

which upheld the trial court, **

The thrust of his petition is that the executive order is unconstitutional insofar as it authorizes outright confiscation of the carabao or carabeef being transported across provincial boundaries. His claim is that the penalty is invalid because it is imposed without according the owner a right to be heard before a competent and impartial court as guaranteed by due process. He complains that the measure should not have been presumed, and so sustained, as constitutional. There is also a challenge to the improper exercise of the legislative power by the former President under Amendment No. 6 of the 1973 Constitution.
4

While also involving the same executive order, the case of Pesigan v. Angeles 5 is not applicable here. The question raised there was the necessity of the previous publication of the measure in the Official Gazette before it could be considered enforceable. We imposed the requirement then on the basis of due process of law. In doing so, however, this Court did not, as contended by the Solicitor General, impliedly affirm the constitutionality of Executive Order No. 626-A. That is an entirely different matter. This Court has declared that while lower courts should observe a becoming modesty in examining constitutional questions, they are nonetheless not prevented from resolving the same whenever warranted, subject only to review by the highest tribunal. 6 We have jurisdiction under the Constitution to "review, revise, reverse, modify or affirm on appeal or certiorari, as the law or rules of court may provide," final judgments and orders of lower courts in, among others, all cases involving the constitutionality of certain measures. 7 This simply means that the resolution of such cases may be made in the first instance by these lower courts. And while it is true that laws are presumed to be constitutional, that presumption is not by any means conclusive and in fact may be rebutted. Indeed, if there be a clear showing of their invalidity, and of the need to declare them so, then "will be the time to make the hammer fall, and heavily," 8 to recall Justice Laurel's trenchant warning. Stated otherwise, courts should not follow the path of least resistance by simply presuming the constitutionality of a law when it is questioned. On the contrary, they should probe the issue more deeply, to relieve the abscess, paraphrasing another distinguished jurist, 9 and so heal the wound or excise the affliction. Judicial power authorizes this; and when the exercise is demanded, there should be no shirking of the task for fear of retaliation, or loss of favor, or popular censure, or any other similar inhibition unworthy of the bench, especially this Court. The challenged measure is denominated an executive order but it is really presidential decree, promulgating a new rule instead of merely implementing an existing law. It was issued by President Marcos not for the purpose of taking care that the laws were faithfully executed but in the exercise of his legislative authority under Amendment No. 6. It was provided thereunder that whenever in his judgment there existed a grave emergency or a threat or imminence thereof or whenever the legislature failed or was unable to act adequately on any matter that in his judgment required immediate action, he could, in order to meet the exigency, issue decrees, orders or letters of instruction that were to have the force and effect of law. As there is no showing of any exigency to justify the exercise of that extraordinary power then, the petitioner has reason, indeed, to question the validity of the executive order. Nevertheless, since the determination of the grounds was supposed to have been made by the President "in his judgment, " a

phrase that will lead to protracted discussion not really necessary at this time, we reserve resolution of this matter until a more appropriate occasion. For the nonce, we confine ourselves to the more fundamental question of due process. It is part of the art of constitution-making that the provisions of the charter be cast in precise and unmistakable language to avoid controversies that might arise on their correct interpretation. That is the Ideal. In the case of the due process clause, however, this rule was deliberately not followed and the wording was purposely kept ambiguous. In fact, a proposal to delineate it more clearly was submitted in the Constitutional Convention of 1934, but it was rejected by Delegate Jose P. Laurel, Chairman of the Committee on the Bill of Rights, who forcefully argued against it. He was sustained by the body. 10 The due process clause was kept intentionally vague so it would remain also conveniently resilient. This was felt necessary because due process is not, like some provisions of the fundamental law, an "iron rule" laying down an implacable and immutable command for all seasons and all persons. Flexibility must be the best virtue of the guaranty. The very elasticity of the due process clause was meant to make it adapt easily to every situation, enlarging or constricting its protection as the changing times and circumstances may require. Aware of this, the courts have also hesitated to adopt their own specific description of due process lest they confine themselves in a legal straitjacket that will deprive them of the elbow room they may need to vary the meaning of the clause whenever indicated. Instead, they have preferred to leave the import of the protection open-ended, as it were, to be "gradually ascertained by the process of inclusion and exclusion in the course of the decision of cases as they arise." 11 Thus, Justice Felix Frankfurter of the U.S. Supreme Court, for example, would go no farther than to define due process and in so doing sums it all up as nothing more and nothing less than "the embodiment of the sporting Idea of fair play." 12 When the barons of England extracted from their sovereign liege the reluctant promise that that Crown would thenceforth not proceed against the life liberty or property of any of its subjects except by the lawful judgment of his peers or the law of the land, they thereby won for themselves and their progeny that splendid guaranty of fairness that is now the hallmark of the free society. The solemn vow that King John made at Runnymede in 1215 has since then resounded through the ages, as a ringing reminder to all rulers, benevolent or base, that every person, when confronted by the stern visage of the law, is entitled to have his say in a fair and open hearing of his cause. The closed mind has no place in the open society. It is part of the sporting Idea of fair play to hear "the other side" before an opinion is formed or a decision is made by those who sit in judgment. Obviously, one side is only one-half of the question; the other half must also be considered if an impartial verdict is to be reached based on an informed appreciation of the issues in contention. It is indispensable that the two sides complement each other, as unto the bow the arrow, in leading to the correct ruling after examination of the problem not from one or the other perspective only but in its totality. A judgment based on less that this full appraisal, on the pretext that a hearing is unnecessary or useless, is tainted with the vice of bias or intolerance or ignorance, or worst of all, in repressive regimes, the insolence of power. The minimum requirements of due process are notice and hearing 13 which, generally speaking, may not be dispensed with because they are intended as a safeguard against official arbitrariness. It is a gratifying commentary on our judicial system that the jurisprudence of this country is rich with applications of this guaranty as proof of our fealty to the rule of law and the ancient rudiments of fair play. We have consistently declared that every person, faced by the awesome power of the State, is entitled to "the law of the land," which Daniel Webster described almost two hundred years ago in the famous Dartmouth College Case, 14 as "the law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial." It has to be so if the rights of every person are to be secured beyond the reach of officials who, out of mistaken zeal or plain arrogance, would degrade the due process clause into a worn and empty catchword. This is not to say that notice and hearing are imperative in every case for, to be sure, there are a number of admitted exceptions. The conclusive presumption, for example, bars the admission of contrary evidence as long as such presumption is based on human experience or there is a rational connection between the fact proved and the fact ultimately presumed therefrom. 15 There are instances when the need for expeditions action will justify omission of these requisites, as in the summary abatement of a nuisance per se, like a mad dog on the loose, which may be killed on sight because of the immediate danger it poses to

the safety and lives of the people. Pornographic materials, contaminated meat and narcotic drugs are inherently pernicious and may be summarily destroyed. The passport of a person sought for a criminal offense may be cancelled without hearing, to compel his return to the country he has fled. 16 Filthy restaurants may be summarily padlocked in the interest of the public health and bawdy houses to protect the public morals. 17 In such instances, previous judicial hearing may be omitted without violation of due process in view of the nature of the property involved or the urgency of the need to protect the general welfare from a clear and present danger. The protection of the general welfare is the particular function of the police power which both restraints and is restrained by due process. The police power is simply defined as the power inherent in the State to regulate liberty and property for the promotion of the general welfare. 18 By reason of its function, it extends to all the great public needs and is described as the most pervasive, the least limitable and the most demanding of the three inherent powers of the State, far outpacing taxation and eminent domain. The individual, as a member of society, is hemmed in by the police power, which affects him even before he is born and follows him still after he is dead from the womb to beyond the tomb in practically everything he does or owns. Its reach is virtually limitless. It is a ubiquitous and often unwelcome intrusion. Even so, as long as the activity or the property has some relevance to the public welfare, its regulation under the police power is not only proper but necessary. And the justification is found in the venerable Latin maxims, Salus populi est suprema lex and Sic utere tuo ut alienum non laedas, which call for the subordination of individual interests to the benefit of the greater number. It is this power that is now invoked by the government to justify Executive Order No. 626-A, amending the basic rule in Executive Order No. 626, prohibiting the slaughter of carabaos except under certain conditions. The original measure was issued for the reason, as expressed in one of its Whereases, that "present conditions demand that the carabaos and the buffaloes be conserved for the benefit of the small farmers who rely on them for energy needs." We affirm at the outset the need for such a measure. In the face of the worsening energy crisis and the increased dependence of our farms on these traditional beasts of burden, the government would have been remiss, indeed, if it had not taken steps to protect and preserve them. A similar prohibition was challenged in United States v. Toribio, 19 where a law regulating the registration, branding and slaughter of large cattle was claimed to be a deprivation of property without due process of law. The defendant had been convicted thereunder for having slaughtered his own carabao without the required permit, and he appealed to the Supreme Court. The conviction was affirmed. The law was sustained as a valid police measure to prevent the indiscriminate killing of carabaos, which were then badly needed by farmers. An epidemic had stricken many of these animals and the reduction of their number had resulted in an acute decline in agricultural output, which in turn had caused an incipient famine. Furthermore, because of the scarcity of the animals and the consequent increase in their price, cattle-rustling had spread alarmingly, necessitating more effective measures for the registration and branding of these animals. The Court held that the questioned statute was a valid exercise of the police power and declared in part as follows: To justify the State in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. ... From what has been said, we think it is clear that the enactment of the provisions of the statute under consideration was required by "the interests of the public generally, as distinguished from those of a particular class" and that the prohibition of the slaughter of carabaos for human consumption, so long as these animals are fit for agricultural work or draft purposes was a "reasonably necessary" limitation on private ownership, to protect the community from the loss of the services of such animals by their slaughter by improvident owners, tempted either by greed of momentary gain, or by a desire to enjoy the luxury of animal food, even when by so doing the productive power of the community may be measurably and dangerously affected. In the light of the tests mentioned above, we hold with the Toribio Case that the carabao, as the poor man's tractor, so to speak, has a direct relevance to the public welfare and so is a lawful subject of Executive Order No. 626. The method chosen in the basic measure is also reasonably necessary for the

purpose sought to be achieved and not unduly oppressive upon individuals, again following the abovecited doctrine. There is no doubt that by banning the slaughter of these animals except where they are at least seven years old if male and eleven years old if female upon issuance of the necessary permit, the executive order will be conserving those still fit for farm work or breeding and preventing their improvident depletion. But while conceding that the amendatory measure has the same lawful subject as the original executive order, we cannot say with equal certainty that it complies with the second requirement, viz., that there be a lawful method. We note that to strengthen the original measure, Executive Order No. 626-A imposes an absolute ban not on the slaughter of the carabaos but on their movement, providing that "no carabao regardless of age, sex, physical condition or purpose (sic) and no carabeef shall be transported from one province to another." The object of the prohibition escapes us. The reasonable connection between the means employed and the purpose sought to be achieved by the questioned measure is missing We do not see how the prohibition of the inter-provincial transport of carabaos can prevent their indiscriminate slaughter, considering that they can be killed anywhere, with no less difficulty in one province than in another. Obviously, retaining the carabaos in one province will not prevent their slaughter there, any more than moving them to another province will make it easier to kill them there. As for the carabeef, the prohibition is made to apply to it as otherwise, so says executive order, it could be easily circumvented by simply killing the animal. Perhaps so. However, if the movement of the live animals for the purpose of preventing their slaughter cannot be prohibited, it should follow that there is no reason either to prohibit their transfer as, not to be flippant dead meat. Even if a reasonable relation between the means and the end were to be assumed, we would still have to reckon with the sanction that the measure applies for violation of the prohibition. The penalty is outright confiscation of the carabao or carabeef being transported, to be meted out by the executive authorities, usually the police only. In the Toribio Case, the statute was sustained because the penalty prescribed was fine and imprisonment, to be imposed by the court after trial and conviction of the accused. Under the challenged measure, significantly, no such trial is prescribed, and the property being transported is immediately impounded by the police and declared, by the measure itself, as forfeited to the government. In the instant case, the carabaos were arbitrarily confiscated by the police station commander, were returned to the petitioner only after he had filed a complaint for recovery and given a supersedeas bond of P12,000.00, which was ordered confiscated upon his failure to produce the carabaos when ordered by the trial court. The executive order defined the prohibition, convicted the petitioner and immediately imposed punishment, which was carried out forthright. The measure struck at once and pounced upon the petitioner without giving him a chance to be heard, thus denying him the centuries-old guaranty of elementary fair play. It has already been remarked that there are occasions when notice and hearing may be validly dispensed with notwithstanding the usual requirement for these minimum guarantees of due process. It is also conceded that summary action may be validly taken in administrative proceedings as procedural due process is not necessarily judicial only. 20 In the exceptional cases accepted, however. there is a justification for the omission of the right to a previous hearing, to wit, the immediacy of the problem sought to be corrected and the urgency of the need to correct it. In the case before us, there was no such pressure of time or action calling for the petitioner's peremptory treatment. The properties involved were not even inimical per se as to require their instant destruction. There certainly was no reason why the offense prohibited by the executive order should not have been proved first in a court of justice, with the accused being accorded all the rights safeguarded to him under the Constitution. Considering that, as we held in Pesigan v. Angeles, 21 Executive Order No. 626-A is penal in nature, the violation thereof should have been pronounced not by the police only but by a court of justice, which alone would have had the authority to impose the prescribed penalty, and only after trial and conviction of the accused. We also mark, on top of all this, the questionable manner of the disposition of the confiscated property as prescribed in the questioned executive order. It is there authorized that the seized property shall "be distributed to charitable institutions and other similar institutions as the Chairman of the National Meat Inspection Commission may see fit, in the case of carabeef, and to deserving farmers through dispersal as the Director of Animal Industry may see fit, in the case of carabaos." (Emphasis supplied.) The phrase

"may see fit" is an extremely generous and dangerous condition, if condition it is. It is laden with perilous opportunities for partiality and abuse, and even corruption. One searches in vain for the usual standard and the reasonable guidelines, or better still, the limitations that the said officers must observe when they make their distribution. There is none. Their options are apparently boundless. Who shall be the fortunate beneficiaries of their generosity and by what criteria shall they be chosen? Only the officers named can supply the answer, they and they alone may choose the grantee as they see fit, and in their own exclusive discretion. Definitely, there is here a "roving commission," a wide and sweeping authority that is not "canalized within banks that keep it from overflowing," in short, a clearly profligate and therefore invalid delegation of legislative powers. To sum up then, we find that the challenged measure is an invalid exercise of the police power because the method employed to conserve the carabaos is not reasonably necessary to the purpose of the law and, worse, is unduly oppressive. Due process is violated because the owner of the property confiscated is denied the right to be heard in his defense and is immediately condemned and punished. The conferment on the administrative authorities of the power to adjudge the guilt of the supposed offender is a clear encroachment on judicial functions and militates against the doctrine of separation of powers. There is, finally, also an invalid delegation of legislative powers to the officers mentioned therein who are granted unlimited discretion in the distribution of the properties arbitrarily taken. For these reasons, we hereby declare Executive Order No. 626-A unconstitutional. We agree with the respondent court, however, that the police station commander who confiscated the petitioner's carabaos is not liable in damages for enforcing the executive order in accordance with its mandate. The law was at that time presumptively valid, and it was his obligation, as a member of the police, to enforce it. It would have been impertinent of him, being a mere subordinate of the President, to declare the executive order unconstitutional and, on his own responsibility alone, refuse to execute it. Even the trial court, in fact, and the Court of Appeals itself did not feel they had the competence, for all their superior authority, to question the order we now annul. The Court notes that if the petitioner had not seen fit to assert and protect his rights as he saw them, this case would never have reached us and the taking of his property under the challenged measure would have become a fait accompli despite its invalidity. We commend him for his spirit. Without the present challenge, the matter would have ended in that pump boat in Masbate and another violation of the Constitution, for all its obviousness, would have been perpetrated, allowed without protest, and soon forgotten in the limbo of relinquished rights. The strength of democracy lies not in the rights it guarantees but in the courage of the people to invoke them whenever they are ignored or violated. Rights are but weapons on the wall if, like expensive tapestry, all they do is embellish and impress. Rights, as weapons, must be a promise of protection. They become truly meaningful, and fulfill the role assigned to them in the free society, if they are kept bright and sharp with use by those who are not afraid to assert them. WHEREFORE, Executive Order No. 626-A is hereby declared unconstitutional. Except as affirmed above, the decision of the Court of Appeals is reversed. The supersedeas bond is cancelled and the amount thereof is ordered restored to the petitioner. No costs. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 131652 March 9, 1998 BAYANI M. ALONTE, petitioner, vs. HON. MAXIMO A. SAVELLANO JR., NATIONAL BUREAU OF INVESTIGATION and PEOPLE OF THE PHILIPPINES, respondents. G.R. No. 131728 March 9, 1998 BUENAVENTURA CONCEPCION, petitioner, vs. JUDGE MAXIMO SAVELLANO, JR., THE PEOPLE OF THE PHILIPPINES, and JUVIELYN Y. PUNONGBAYAN, respondents.

VITUG, J.: Pending before this Court are two separate petitions, one filed by petitioner Bayani M. Alonte, docketed G.R. No. 131652, and the other by petitioner Buenaventura Concepcion, docketed G.R. No. 131728, that assail the decision of respondent Judge Maximo A. Savellano, Jr., of the Regional Trial Court ("RTC"), Branch 53, of Manila finding both petitioners guilty beyond reasonable doubt of the crime of rape. The two petitions were consolidated. On 05 December 1996, an information for rape was filed against petitioners Bayani M. Alonte, an incumbent Mayor of Bian, Laguna, and Buenaventura Concepcion predicated on a complaint filed by Juvie-lyn Punongbayan. The information contained the following averments; thus: That on or about September 12, 1996, in Sto. Tomas, Bian, Laguna, and within the jurisdiction of this Honorable court, the above named accused, who is the incumbent mayor of Bian, Laguna after giving complainant-child drinking water which made her dizzy and weak, did then and there willfully, unlawfully and feloniously have carnal knowledge with said JUVIELYN PUNONGBAYAN against her will and consent, to her damage and prejudice. That accused Buenaventura "Wella" Concepcion without having participated as principal or accessory assisted in the commission of the offense by bringing said complainant child to the rest house of accused Bayani "Arthur" Alonte at Sto. Tomas, Bian, Laguna and after receiving the amount of P1,000.00 left her alone with Bayani Alonte who subsequently raped her. Contrary to Law. 1 The case was docketed Criminal Case No. 9619-B and assigned by raffle to Branch 25 of the RTC of Bian, Laguna, presided over by Judge Pablo B. Francisco. On 13 December 1996, Juvie-lyn Punongbayan, through her counsel Attorney Remedios C. Balbin, and Assistant Chief State Prosecutor ("ACSP") Leonardo Guiyab, Jr., filed with the Office of the Court Administrator a Petition for a Change of Venue (docketed Administrative Matter No. 97-1-12-RTC) to have the case transferred and tried by any of the Regional Trial Courts in Metro Manila.

During the pendency of the petition for change of venue, or on 25 June 1997, Juvie-lyn Punongbayan, assisted by her parents and counsel, executed an affidavit of desistance, quoted herein in full, as follows: AFFIDAVIT OF DESISTANCE I, JUVIE-LYN YAMBAO PUNONGBAYAN, 17 years of age, a resident of No. 5 Uranus Street, Congressional Avenue Subdivision, Quezon City, duly assisted by private legal counsel and my parents, after having duly sworn in accordance with law, depose and say: 1. That I am the Complainant in the rape case filed against Mayor Bayani "Arthur" Alonte of Bian, Laguna, with the RTC-Branch 25 of Bian, Laguna; 2. That the case has been pending for some time, on preliminary issues, specifically, (a) change of venue, filed with the Supreme Court; (b) propriety of the appeal to the Court of Appeals, and after its denial by said court, brought to the Office of the President, on the veracity of the findings of the Five-Man Investigating Panel of the State Prosecutor's Office, and the Secretary of Justice, and (c) a hold-departure order filed with the Bian Court. 3. That the legal process moves ever so slowly, and meanwhile, I have already lost two (2) semesters of my college residence. And when the actual trial is held after all the preliminary issues are finally resolved, I anticipate a still indefinite suspension of my schooling to attend the hearings; 4. That during the entire period since I filed the case, my family has lived a most abnormal life: my father and mother had to give up their jobs; my younger brother, who is in fourth grade, had to stop his schooling, like myself; 5 That I do not blame anyone for the long, judicial process, I simply wish to stop and live elsewhere with my family, where we can start life anew, and live normally once again; 6. That I pray that I be allowed to withdraw my complaint for rape and the other charge for child abuse wherein the Five-Man Investigating Panel of the Office of the State Prosecutor found a prima facie case although the information has not been filed, and that I will not at any time revive this, and related cases or file new cases, whether, criminal, civil, and/or administrative, here or anywhere in the Philippines; 7 That I likewise realize that the execution of this Affidavit will put to doubt my credibility as a witness-complainant; 8. That this is my final decision reached without fear or favor, premised on a corresponding commitment that there will be no reprisals in whatever form, against members of the police force or any other official of officer, my relatives and friends who extended assistance to me in whatever way, in my search for justice. WHEREOF, I affix my signature this 25 day of June, 1997, in Quezon City. (Sgd) JUVIE-LYN Y. PUNONGBAYAN Complainant Assisted by: (Sgd) ATTY. REMEDIOS C. BALBIN Private Prosecutor In the presence of: (Sgd) PABLO PUNONGBAYAN

Father (Sgd) JULIE Y. PUNONGBAYAN Mother SUBSCRIBED AND SWORN to before me this 25 day of June, 1997, in Quezon City. (Sgd) Illegible Administering Officer 2 On 28 June 1997, Atty. Ramon C. Casino, on behalf of petitioners, moved to have the petition for change of venue dismissed on the ground that it had become moot in view of complainant's affidavit of desistance. On 22 August 1997, ACSP Guiyab filed his comment on the motion to dismiss. Guiyab asserted that he was not aware of the desistance of private complainant and opined that the desistance, in any case, would not produce any legal effect since it was the public prosecutor who had direction and control of the prosecution of the criminal action. He prayed for the denial of the motion to dismiss. On 02 September 1997, this Court issued a Resolution (Administrative Matter No. 97-1-12-RTC), granting the petition for change of venue. The Court said: These affidavits give specific names, dates, and methods being used to abort, by coercion or corruption, the prosecution of Criminal Case No. 9619-B. It is thus incorrect for oppositors Alonte and Concepcion to contend that the fear of the petitioner, her private counsel and her witnesses are too generalized if not fabricated. Indeed, the probability that in desisting from pursuing her complaint for rape, petitioner, a minor, may have succumbed to some illicit influence and undue pressure. To prevent possible miscarriage of justice is a good excuse to grant the petition to transfer the venue of Criminal Case No. 9619-B from Bian, Laguna to the City of Manila. IN VIEW WHEREOF, the Petition for Change of Venue from Bian, Laguna to the City of Manila is granted. The Executive Judge of RTC Manila is ordered to raffle Crim. Case No. 9619-B to any of its branches. The judge to whom Crim. Case No. 9619-B shall be raffled shall resolve the petitioner's Motion to Resume Proceedings filed in Br. XXV of the RTC of Bian, Laguna and determine the voluntariness and validity of petitioner's desistance in light of the opposition of the public prosecutor, Asst. Chief State Prosecutor Leonardo Guiyab. The branch clerk of court of Br. XXV of the RTC of Bian, Laguna is ordered to personally deliver to the Executive Judge of Manila the complete records of Crim. Case No. 9619-B upon receipt of this Resolution. 3 On 17 September 1997, the case, now re-docketed Criminal Case No. 97-159955 by the Clerk of Court of Manila, was assigned by raffle to Branch 53, RTC Manila, with respondent Judge Maximo A. Savellano, Jr., presiding. On 07 October 1997, Juvie-lyn Punongbayan, through Attorney Balbin, submitted to the Manila court a "compliance" where she reiterated "her decision to abide by her Affidavit of Desistance." In an Order, dated 09 October 1997, Judge Savellano found probable cause for the issuance of warrants for the arrest of petitioners Alonte and Concepcion "without prejudice to, and independent of, this Court's separate determination as the trier of facts, of the voluntariness and validity of the [private complainant's] desistance in the light of the opposition of the public prosecutor, Asst. Chief State Prosecutor Leonardo Guiyab." On 02 November 1997, Alonte voluntarily surrendered himself to Director Santiago Toledo of the National Bureau of Investigation ("NBI"), while Concepcion, in his case, posted the recommended bail of P150,000.00. On 07 November 1997, petitioners were arraigned and both pleaded "not guilty" to the charge. The parties manifested that they were waiving pre-trial. The proceedings forthwith went on. Per Judge Savellano, both

parties agreed to proceed with the trial of the case on the merits. 4 According to Alonte, however, Judge Savellano allowed the prosecution to present evidence relative only to the question of the voluntariness and validity of the affidavit of desistance. 5 It would appear that immediately following the arraignment, the prosecution presented private complainant Juvielyn Punongbayan followed by her parents. During this hearing, Punongbayan affirmed the validity and voluntariness of her affidavit of desistance. She stated that she had no intention of giving positive testimony in support of the charges against Alonte and had no interest in further prosecuting the action. Punongbayan confirmed: (i) That she was compelled to desist because of the harassment she was experiencing from the media, (ii) that no pressures nor influence were exerted upon her to sign the affidavit of desistance, and (iii) that neither she nor her parents received a single centavo from anybody to secure the affidavit of desistance. Assistant State Prosecutor Marilyn Campomanes then presented, in sequence: (i) Punongbayan's parents, who affirmed their signatures on the affidavit of desistance and their consent to their daughter's decision to desist from the case, and (ii) Assistant Provincial Prosecutor Alberto Nofuente, who attested that the affidavit of desistance was signed by Punongbayan and her parents in his presence and that he was satisfied that the same was executed freely and voluntarily. Finally, Campomanes manifested that in light of the decision of private complainant and her parents not to pursue the case, the State had no further evidence against the accused to prove the guilt of the accused. She, then, moved for the "dismissal of the case" against both Alonte and Concepcion. Thereupon, respondent judge said that "the case was submitted for decision." 6 On 10 November 1997, petitioner Alonte filed an "Urgent Motion to Admit to Bail." Assistant State Prosecutor Campomanes, in a Comment filed on the same date, stated that the State interposed "no objection to the granting of bail and in fact Justice and Equity dictates that it joins the accused in his prayer for the granting of bail." Respondent judge did not act on the application for bail. On 17 November 1997, Alonte filed anew an Urgent Plea to Resolve the Motion for Bail. On even date, ASP Campomanes filed a Manifestation deeming "it proper and in accord with justice and fair play to join the aforestated motion." Again, the respondent judge did not act on the urgent motion. The records would indicate that on the 25th November 1997, 1st December 1997, 8th December 1997 and 10th December 1997, petitioner Alonte filed a Second, Third, Fourth and Fifth Motion for Early Resolution, respectively, in respect of his application for bail. None of these motions were acted upon by Judge Savellano. On 17 December 1997, Attorney Philip Sigfrid A. Fortun, the lead counsel for petitioner Alonte received a notice from the RTC Manila. Branch 53, notifying him of the schedule of promulgation, on 18 December 1997, of the decision on the case. The counsel for accused Concepcion denied having received any notice of the scheduled promulgation. On 18 December 1997, after the case was called, Atty. Sigrid Fortun and Atty. Jose Flaminiano manifested that Alonte could not attend the promulgation of the decision because he was suffering from mild hypertension and was confined at the NBI clinic and that, upon the other hand, petitioner Concepcion and his counsel would appear not to have been notified of the proceedings. The promulgation, nevertheless, of the decision proceeded in absentia; the reading concluded: WHEREFORE, judgment is hereby rendered finding the two (2) accused Mayor Bayani Alonte and Buenaventura "Wella" Concepcion guilty beyond reasonable doubt of the heinous crime of RAPE, as defined and penalized under Article 335(2) in relation to Article 27 of the Revised Penal Code, as amended by Republic Act No. 7659, for which each one of the them is hereby sentenced to suffer the indivisible penalty of RECLUSION PERPETUA or imprisonment for twenty (20) years and one (1) day to forty (40) years.

In view thereof, the bail bond put up by the accused Buenaventura "Wella'" Concepcion for his provisional liberty is hereby cancelled and rendered without any further force and effect. SO ORDERED. 7 On the same day of 18th December 1997, petitioner Alonte filed a motion for reconsideration. Without waiting for its resolution, Alonte filed the instant "Ex Abundante Ad Cautelam" for "Certiorari, Prohibition, Habeas Corpus, Bail, Recusation of respondent Judge, and for Disciplinary Action against an RTC Judge." Petitioner Concepcion later filed his own petition for certiorari and mandamus with the Court. Alonte submits the following grounds in support of his petition seeking to have the decision nullified and the case remanded for new trial; thus: The respondent Judge committed grave abuse of discretion amounting to lack or excess of jurisdiction when he rendered a Decision in the case a quo (Annex A) without affording the petitioner his Constitutional right to due process of law (Article III, 1, Constitution). The respondent Judge committed grave abuse of discretion amounting to lack or excess of jurisdiction when he rendered a Decision in the case a quo in violation of the mandatory provisions of the Rules on Criminal Procedure, specifically, in the conduct and order of trial (Rule 119) prior to the promulgation of a judgment (Rule 120; Annex A). The respondent Judge committed grave abuse of discretion amounting to lack or excess of jurisdiction when, in total disregard of the Revised Rules on Evidence and existing doctrinal jurisprudence, he rendered a Decision in the case a quo (Annex A) on the basis of two (2) affidavits (Punongbayan's and Balbin's) which were neither marked nor offered into evidence by the prosecution, nor without giving the petitioner an opportunity to cross-examine the affiants thereof, again in violation of petitioner's right to due process (Article III, 1, Constitution). The respondent Judge committed grave abuse of discretion amounting to lack or excess of jurisdiction when he rendered a Decision in the case a quo without conducting a trial on the facts which would establish that complainant was raped by petitioner (Rule 119, Article III, 1, Constitution), thereby setting a dangerous precedent where heinous offenses can result in conviction without trial (then with more reason that simpler offenses could end up with the same result). 8 On the other hand, Concepcion relies on the following grounds in support of his own petition; thus: 1. The decision of the respondent Judge rendered in the course of resolving the prosecution's motion to dismiss the case is a patent nullity for having been rendered without jurisdiction, without the benefit of a trial and in total violation of the petitioner's right to due process of law. 2. There had been no valid promulgation of judgment at least as far as petitioner is concerned. 3. The decision had been rendered in gross violation of the right of the accused to a fair trial by an impartial and neutral judge whose actuations and outlook of the case had been motivated by a sinister desire to ride on the crest of media hype that surrounded this case and use this case as a tool for his ambition for promotion to a higher court. 4. The decision is patently contrary to law and the jurisprudence in so far as it convicts the petitioner as a principal even though he has been charged only as an accomplice in the information. 9 The petitions deserve some merit; the Court will disregard, in view of the case milieu, the prematurity of petitioners' invocation, i.e., even before the trial court could resolve Alonte's motion for reconsideration.

The Court must admit that it is puzzled by the somewhat strange way the case has proceeded below. Per Judge Savellano, after the waiver by the parties of the pre-trial stage, the trial of the case did proceed on the merits but that The two (2) accused did not present any countervailing evidence during the trial. They did not take the witness stand to refute or deny under oath the truth of the contents of the private complainant's aforementioned affidavit which she expressly affirmed and confirmed in Court, but, instead, thru their respective lawyers, they rested and submitted the case for decision merely on the basis of the private complainant's so called "desistance" which, to them, was sufficient enough for their purposes. They left everything to the so-called "desistance" of the private complainant. 10 According to petitioners, however, there was no such trial for what was conducted on 07 November 1997, aside from the arraignment of the accused, was merely a proceeding in conformity with the resolution of this Court in Administrative Case No. 97-1-12-RTC to determine the validity and voluntariness of the affidavit of desistance executed by Punongbayan. It does seem to the Court that there has been undue precipitancy in the conduct of the proceedings. Perhaps the problem could have well been avoided had not the basic procedures been, to the Court's perception, taken lightly. And in this shortcoming, looking at the records of the case, the trial court certainly is not alone to blame. Section 14, paragraphs (1) and (2), of Article III, of the Constitution provides the fundamentals. (1) No person shall be held to answer for a criminal offense without due process of law. (2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable. Jurisprudence 11 acknowledges that due process in criminal proceedings, in particular, require (a) that the court or tribunal trying the case is properly clothed with judicial power to hear and determine the matter before it; (b) that jurisdiction is lawfully acquired by it over the person of the accused; (c) that the accused is given an opportunity to be heard; and (d) that judgment is rendered only upon lawful hearing. 12 The above constitutional and jurisprudential postulates, by now elementary and deeply imbedded in our own criminal justice system, are mandatory and indispensable. The principles find universal acceptance and are tersely expressed in the oft-quoted statement that procedural due process cannot possibly be met without a "law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial." 13 The order of trial in criminal cases is clearly spelled out in Section 3, Rule 119, of the Rules of Court; viz: Sec. 3. Order of trial. The trial shall proceed in the following order: (a) The prosecution shall present evidence to prove the charge and, in the proper case, the civil liability. (b) The accused may present evidence to prove his defense, and damages, if any, arising from the issuance of any provisional remedy in the case. (c) The parties may then respectively present rebutting evidence only, unless the court, in furtherance of justice, permits them to present additional evidence bearing upon the main issue.

(d) Upon admission of the evidence, the case shall be deemed submitted for decision unless the court directs the parties to argue orally or to submit memoranda. (e) However, when the accused admits the act or omission charged in the complaint or information but interposes a lawful defense, the order of trial may be modified accordingly. In Tabao vs. Espina, 14 the Court has underscored the need to adhere strictly to the above rules. It reminds that . . . each step in the trial process serves a specific purpose. In the trial of criminal cases, the constitutional presumption of innocence in favor of an accused requires that an accused be given sufficient opportunity to present his defense. So, with the prosecution as to its evidence. Hence, any deviation from the regular course of trial should always take into consideration the rights of all the parties to the case, whether in the prosecution or defense. In the exercise of their discretion, judges are sworn not only to uphold the law but also to do what is fair and just. The judicial gavel should not be wielded by one who has an unsound and distorted sense of justice and fairness. 15 While Judge Savellano has claimed in his Comment that Petitioners-accused were each represented during the hearing on 07 November 1997 with their respective counsel of choice. None of their counsel interposed an intention to cross-examine rape victim Juvielyn Punongbayan, even after she attested, in answer to respondent judge's clarificatory questions, the voluntariness and truth of her two affidavits one detailing the rape and the other detailing the attempts to buy her desistance; the opportunity was missed/not used, hence waived. The rule of case law is that the right to confront and cross-examine a witness "is a personal one and may be waived." (emphasis supplied) it should be pointed out, however, that the existence of the waiver must be positively demonstrated. The standard of waiver requires that it "not only must be voluntary, but must be knowing, intelligent, and done with sufficient awareness of the relevant circumstances and likely consequences." 16 Mere silence of the holder of the right should not be so construed as a waiver of right, and the courts must indulge every reasonable presumption against waiver. 17 The Solicitor General has aptly discerned a few of the deviations from what otherwise should have been the regular course of trial: (1) Petitioners have not been directed to present evidence to prove their defenses nor have dates therefor been scheduled for the purpose; 18 (2) the parties have not been given the opportunity to present rebutting evidence nor have dates been set by respondent Judge for the purpose; 19 and (3) petitioners have not admitted the act charged in the Information so as to justify any modification in the order of trial. 20 There can be no short-cut to the legal process, and there can be no excuse for not affording an accused his full day in court. Due process, rightly occupying the first and foremost place of honor in our Bill of Rights, is an enshrined and invaluable right that cannot be denied even to the most undeserving. This case, in fine, must be remanded for further proceedings. And, since the case would have to be sent back to the court a quo, this ponencia has carefully avoided making any statement or reference that might be misconstrued as prejudgment or as pre-empting the trial court in the proper disposition of the case. The Court likewise deems it appropriate that all related proceedings therein, including the petition for bail, should be subject to the proper disposition of the trial court. Nevertheless, it is needful to stress a few observations on the affidavit of desistance executed by the complainant. Firstly, the affidavit of desistance of Juvie-Lyn Punongbayan, hereinbefore quoted, does not contain any statement that disavows the veracity of her complaint against petitioners but merely seeks to "be allowed to withdraw" her complaint and to discontinue with the case for varied other reasons. On this subject, the case of People vs. Junio, 21 should be instructive. The Court has there explained: The appellant's submission that the execution of an Affidavit of Desistance by complainant who was assisted by her mother supported the "inherent incredibility of prosecution's evidence" is specious.

We have said in so many cases that retractions are generally unreliable and are looked upon with considerable disfavor by the courts. The unreliable character of this document is shown by the fact that it is quite incredible that after going through the process of having accused-appellant arrested by the police, positively identifying him as the person who raped her, enduring the humiliation of a physical examination of her private parts, and then repeating her accusations in open court by recounting her anguish, Maryjane would suddenly turn around and declare that "[a]fter a careful deliberation over the case, (she) find(s) that the same does not merit or warrant criminal prosecution. Thus, we have declared that at most the retraction is an afterthought which should not be given probative value. It would be a dangerous rule to reject the testimony taken before the court of justice simply because the witness who has given it later on changed his mind for one reason or another. Such a rule will make a solemn trial a mockery and place the investigation at the mercy of unscrupulous witnesses. Because affidavits of retraction can easily be secured from poor and ignorant witnesses, usually for monetary consideration, the Court has invariably regarded such affidavits as exceedingly unreliable [Flores vs. People, 211 SCRA 622, citing De Guzman vs. Intermediate Appellate Court, 184 SCRA 128; People vs. Galicia, 123 SCRA 550.] 22 The Junio rule is no different from ordinary criminal cases. For instance, in People vs. Ballabare, 23 a murder case, the Court has ruled: The contention has no merit. To begin with, the Affidavit executed by eyewitness Tessie Asenita is not a recantation. To recant a prior statement is to renounce and withdraw it formally and publicly. [36 WORDS AND PHRASES 683, citing Pradlik vs. State, 41-A 2nd, 906, 907.] In her affidavit, Tessie Asenita did not really recant what she had said during the trial. She only said she wanted to withdraw her testimony because her father, Leonardo Tacadao, Sr., was no longer interested in prosecuting the case against accused-appellant. Thus, her affidavit stated: 3. That inasmuch as my father, Leonardo Tacadao, Sr., the complainant therein, was no longer interested to prosecute the case as manifested in the Sworn Affidavit of Desistance before the Provincial Prosecutor, I do hereby WITHDRAW and/or REVOKE my testimony of record to confirm (sic) with my father's desire; It is absurd to disregard a testimony that has undergone trial and scrutiny by the court and the parties simply because an affidavit withdrawing the testimony is subsequently presented by the defense. In the first place, any recantation must be tested in a public trial with sufficient opportunity given to the party adversely affected by it to cross-examine the recanting witness. In this case, Tessie Asenita was not recalled to the witness stand to testify on her affidavit. Her affidavit is thus hearsay. It was her husband, Roque Asenita, who was presented and the matters he testified to did not even bear on the substance of Tessie's affidavit. He testified that accusedappellant was not involved in the perpetration of the crime. In the second place, to accept the new evidence uncritically would be to make a solemn trial a mockery and place the investigation at the mercy of unscrupulous witnesses. [De Guzman vs. Intermediate Appellate Court, 184 SCRA 128, 134, citing People vs. Morales, 113 SCRA 683.] For even assuming that Tessie Asenita had made a retraction, this circumstance alone does not require the court to disregard her original testimony. A retraction does not necessarily negate an earlier declaration. [People vs. Davatos, 229 SCRA 647.] For this reason, courts look with disfavor upon retractions because they can easily be obtained from witnesses usually through intimidation or for monetary considerations. [People vs. Clamor, 198 SCRA 642.] Hence, when confronted with a situation where a witness recants his testimony, courts must not automatically exclude the original testimony solely on the basis of the recantation. They should determine which testimony should be given credence through a comparison of the original testimony and the new testimony, applying the general rules of evidence. [Reano vs. Court of Appeals, 165 SCRA 525.] In this case we think the trial court correctly ruled. 24 It may not be amiss to state that courts have the inherent power to compel the attendance of any person to testify in a case pending before it, and a party is not precluded from invoking that authority. 25

Secondly, an affidavit of desistance by itself, even when construed as a pardon in the so-called "private crimes," is not a ground for the dismissal of the criminal case once the action has been instituted. The affidavit, nevertheless, may, as so earlier intimated, possibly constitute evidence whose weight or probative value, like any other piece of evidence, would be up to the court for proper evaluation. The decision in Junio went on to hold While "[t]he offenses of seduction, abduction, rape or acts of lasciviousness, shall not be prosecuted except upon a complaint flied by the offended party or her parents, grandparents, or guardian, nor in any case, if the offender has been expressly pardoned by the above named persons, as the case may be," [Third par. of Art. 344, The Revised Penal Code.] the pardon to justify the dismissal of the complaint should have been made prior to the institution of the criminal action. [People vs. Entes, 103 SCRA 162, cited by People vs. Soliao, 194 SCRA 250, which in turn is cited in People vs. Villorente, 210 SCRA 647.] Here, the motion to dismiss to which the affidavit of desistance is attached was filed after the institution of the criminal case. And, affiant did not appear to be serious in "signifying (her) intention to refrain from testifying" since she still completed her testimony notwithstanding her earlier affidavit of desistance. More, the affidavit is suspect considering that while it was dated "April 1992," it was only submitted sometime in August 1992, four (4) months after the Information was filed before the court a quo on 6 April 1992, perhaps dated as such to coincide with the actual filing of the case. 26 In People vs. Miranda, 27 applying the pertinent provisions of Article 344 of the Revised Penal Code which, in full, states Art. 344. Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape, and acts of lasciviousness. The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouse. The offended party cannot institute criminal prosecution without including both the guilty parties, if they are both alive, nor, in any case, if he shall have consented or pardoned the offenders. The offenses of seduction, abduction, rape or acts of lasciviousness, shall not be prosecuted except upon a complaint filed by the offended party or her parents, grandparents, or guardian, nor, in any case, if the offender has been expressly pardoned by the above named persons, as the case may be. In cases of seduction, abduction, acts of lasciviousness and rape, the marriage of the offender with the offended party shall extinguish the criminal action or remit the penalty already imposed upon him. The provisions of this paragraph shall also be applicable to the coprincipals, accomplices and accessories after the fact of the above-mentioned crimes. the Court said: Paragraph 3 of the legal provision above quoted prohibits a prosecution for seduction, abduction, rape, or acts of lasciviousness, except upon a complaint made by the offended party or her parents, grandparents, or guardian, nor, in any case, if the offender has been expressly pardoned by the above-named persons, as the case may be. It does not prohibit the continuance of a prosecution if the offended party pardons the offender after the cause has been instituted, nor does it order the dismissal of said cause. The only act that according to article 344 extinguishes the penal action and the penalty that may have been imposed is the marriage between the offended and the offended party. 28 In People vs. Infante,
29

decided just a little over a month before Miranda, the Court similarly held:

In this court, after the case had been submitted, a motion to dismiss was filed on behalf of the appellant predicated on an affidavit executed by Manuel Artigas, Jr., in which he pardoned his guilty spouse for her infidelity. But this attempted pardon cannot prosper for two reasons. The second paragraph of article 344 of the Revised Penal Code which is in question reads: "The offended party cannot institute criminal prosecution without including both the guilty parties, if they are both alive, nor, in any case, if he shall have consented or pardoned the offenders." This provision means that

the pardon afforded the offenders must come before the institution of the criminal prosecution, and means, further, that both the offenders must be pardoned by the offended party. To elucidate further, article 435 of the old Penal Code provided: "The husband may at any time remit the penalty imposed upon his wife. In such case the penalty imposed upon the wife's paramour shall also be deemed to be remitted." These provisions of the old Penal Code became inoperative after the passage of Act No. 1773, section 2, which had the effect of repealing the same. The Revised Penal Code thereafter expressly repealed the old Penal Code, and in so doing did not have the effect of reviving any of its provisions which were not in force. But with the incorporation of the second paragraph of article 344, the pardon given by the offended party again constitutes a bar to the prosecution for adultery. Once more, however, it must be emphasized that this pardon must come before the institution of the criminal prosecution and must be for both offenders to be effective circumstances which do not concur in this case. 30 The decisions speak well for themselves, and the Court need not say more than what it has heretofore already held. Relative to the prayer for the disqualification of Judge Savellano from further hearing the case, the Court is convinced that Judge Savellano should, given the circumstances, the best excused from the case. Possible animosity between the personalities here involved may not all be that unlikely. The pronouncement of this Court in the old case of Luque vs. Kayanan 31 could again be said: All suitors are entitled to nothing short of the cold neutrality of an independent, wholly-free, disinterested and unbiased tribunal. Second only to the duty of rendering a just decision is the duty of doing it in a manner that will not arouse any suspicion as to the fairness and integrity of the Judge. 32 It is not enough that a court is impartial, it must also be perceived as impartial. The Court cannot end this ponencia without a simple reminder on the use of proper language before the courts. While the lawyer in promoting the cause of his client or defending his rights might do so with fervor, simple courtesy demands that it be done within the bounds of propriety and decency. The use of intemperate language and unkind ascriptions hardly can be justified nor can have a place in the dignity of judicial forum. Civility among members of the legal profession is a treasured tradition that must at no time be lost to it. Finally, it may be opportune to say, once again, that prosecutors are expected not merely to discharge their duties with the highest degree or excellence, professionalism and skill but also to act each time with utmost devotion and dedication to duty. 33 The Court is hopeful that the zeal which has been exhibited many times in the past, although regrettably a disappointment on few occasions, will not be wanting in the proceedings yet to follow. WHEREFORE, conformably with all the foregoing, the Court hereby RULES that (a) The submission of the "Affidavit of Desistance," executed by Juvie-Lyn Y. Punongbayan on 25 June 1997, having been filed AFTER the institution of Criminal Case No. 97-159935, DOES NOT WARRANT THE DISMISSAL of said criminal case; (b) For FAILURE OF DUE PROCESS, the assailed judgment, dated 12 December 1997, convicting petitioners is declared NULL AND VOID and thereby SET ASIDE; accordingly, the case is REMANDED to the trial court for further proceedings; and (c) Judge Maximo A. Savellano, Jr., presiding Judge of Branch 53 of the Regional Trial Court of Manila, is ENJOINED from further hearing Criminal Case No. 97-159935; instead, the case shall immediately be scheduled for raffle among the other branches of that court for proper disposition. No special pronouncement on costs. SO ORDERED. Melo, Kapunan, Martinez, Quisumbing and Purisima, JJ., concur. Narvasa, C.J., took no part.

Separate Opinions PUNO, J., separate opinion; The facts are critical and need to be focused. Petitioners were charged with rape in Criminal Case No. 15993 which was raffled to Br. 25 of the RTC of Bian, Laguna. The charge is principally based on the following affidavit dated October 31, 1996 of Ms. Juvie-Lyn Punongbayan, a 16-year old minor, viz.: REPLY-AFFIDAVIT (TUGON SA MGA SALAYSAY NILA MAYOR BAYANI ALONTE, WELLA CONCEPCION, RICARDO LACAYAN at JAIME MENDOZA) Ako si JUVIE-LYN Y. PUNONGBAYAN, Filipino, walang asawa, 16 years old, at kasalukuyang nasa pangangalaga ng Department of Social Welfare and Development, matapos makapanumpa ayon sa batas, ay nagsasaad: 1. Wala pong katotohanan ang lahat nakasaad sa mga salaysay ni Mayor Bayani Alonte at Buenaventura "Wella" Concepcion, ng kanilang mga testigo na sila Ricardo (Ading) Lacayan y Aguilar at Jaime Bagtas Mendoza. 2. Ang totoo po ay inabuso ako ni Mayor nung September 12, 1996, katulad nga ng naihayag ko na sa aking sinumpaang salaysay. Ayon sa driver ng tricycle na nasakyan ko pagkatapos ng insidente, hindi lang po ako, kundi marami pa pong babae ang inabuso ni Mayor. Sabi pa nga ng driver ay naaawa siya sa akin, at lumaban daw ako. Tinawagan ko na rin po ang lahat ng mga babae na naging biktima ni Mayor; wag silang matakot, lumabas at ilahad ang pangaabuso ni Mayor. Ang detalya nung panggagahasa ni Alonte at ang partisipasyon ni Wella Concepcion 3. Nakalahad po sa sumusunod na talata ang detalya ng pang-aabuso sa akin ni Mayor. Pinakikita rin dito kung paano nakipagsabwatan kay Wella Concepcion. Sa pamamagitan nito ay mapapabulaanan na rin ang mga nakasaad sa salaysay nila at ng mga testigo nila. 4. Nakilala ko si Wella Concepcion, dance instructor, nung bandang last week ng August 1996. Noon ay naghahanda ako para sa "Miss Education" beauty contest sa Perpetual Help College of Laguna. Doon ako nag-aaral. First year college ako, at education ang kursong pinili ko. Ang nasabing contest ay ginanap nung Sept. 20, 1996. Kapag nagkikita kami ni Wella para sa ensayo, nagkukuwentuhan din kami, at nabanggit niya na may kaibigan siyang bakla na nagdadala ng babae kay Mayor Alonte. Waway daw ang pangalan ng bakla. Hindi ko pa kilala si Waway noon. 5. Nung Sept. 7, niyaya ako ni Wella na sumali sa dance contest sa "Sang Linggo NAPO SILA" sa Channel 2, na itatanghal sa Sept. 11, 1996. Wala na daw po akong aalalahanin. Siya daw ang bahala sa costume at transportation. Pumayag ang nanay ko, dahil wala na kaming gagastusin. Hindi ko tinanong kay Wella kung saan galing ang costume. Akala ko may ipapagamit lang siya sa akin. 6. Nung Sept. 8, pinakilala ni Wella si Waway sa akin. Si Waway ang nagturo sa amin ng sayaw para sa TV contest. Mula nung araw na yon hanggang Sept. 10 ay nagsanay kami sa bahay ng kapatid ni

Waway sa St. Francis Subdivision, Bian, Laguna. Tatlo kami sa dance group: ako at ang dalawang lalaki na ipinakilala sa akin ni Waway: si Melchor at Darius. 7. Nagpunta kami sa studio sa Delta nung Sept. 11. Bago kami magsayaw, habang inaayos ni Wella yung damit ko, sinabi niya na dapat manalo kami dahil si Mayor Alonte daw ang nag-sponsor ng costume namin. Noon ko lang ito nalaman. Hindi kami nanalo sa contest, pero nagkaroon pa rin kami ng premyong P1,500.00 na pinaghatian namin. 8. Pagkatapos ng contest, at nung nakapagpalit na ako ng damit, binabalik ko kay Wella ang costume ko. Sabi niya iuwi ko daw ito dahil gagamitin ko ito sa Miss Education contest, sa presentation ng mga candidates. Mula sa studio, nagpunta kaming lahat sa isang kainan sa tapat ng Delta at, pagkatapos namin kumain, humiwalay yung ibang kasama namin. 9. Dinala ako ni Wella sa isang department store at binili niya ako ng sandals. Inikot niya ako sa lugar na yon at binili niya ako ng pagakain. Tapos ay sumakay kami ng bus pauwi sa Laguna. Nung nasa bus kami, niyaya ako ni Wella na magpunta sa bahay ni Mayor para magpasalamat ng personal para sa costume namin. Pumayag ako at sabi ko kay Wella na sunduin niya ako sa bahay ng 10:00 a.m. sa susunod na araw, Sept. 12. Nakarating ako sa bahay ng 5:00 p.m. ng araw na yon, Sept. 11. 10. Nung Sept. 12, hinintay ko si Wella ng 10:00 a.m. Nung hindi siya dumating umalis kaming Tita ko dahil sinamahan ko siya sa health center. Sumundo pala si Wella doon, pero hindi kami nagkita kasi saglit lang kami doon. Bumalik siya sa bahay, at doon na kami nagkita. Tapos ay umalis kami ni Wella papunta kay Mayor. Tumawid kami ng kalye, at pumara ako ng tricycle. Pero kahit marami na akong pinara, ayaw ni Wella na sumakay doon. Maya-maya, may tricyle na dumating na hindi naman pinara ni Wella. Basta huminto na lang sa harap namin. Doon kami sumakay ni Wella. Si Wella ang nagturo sa driver kung saan kami pupunta. Nag-uusap sila ng driver habang papunta kami kay Mayor. 11. Bumaba kami sa tapat ng bahay na bukas ang gate. May swimming pool sa loob, alam na alam ni Wella and, pasikot-sikot nang bahay; tuloy-tuloy siya sa loob at sumunod naman ako. Wala kaming taong nakita, pero bukas pati yung pintuan ng bahay. Dinala ako ni Wella sa sala. Napakaganda ng loob ng bahay. Mayroong wall paper na may design na leaves and flowers; may carpet sa sahig. May mahabang hagdan patungo sa dalawang pintuan. 12. Tinanong ko kay Wella kung nasaan si Mayor. Sabi niya ay nasa munisipyo daw; darating na daw maya-maya. Pagkaraan ng mga 15 minutes, dumating si Mayor na nakasakay sa green na kotse. Lumabas siya sa kaliwang pintuan sa harap ng kotse. Wala siyang kasama. 13. Pumasok si Mayor sa loob ng bahay. Naghubad siya ng sapatos. Sabi ni Wella: "Mayor, si Juvie; Juvie si Mayor." 14. Umupo si Mayor sa tabi ko. Kinamayan niya ako at sinabi niya: "Hi, I'm Arthur" sabay hinalikan niya sa ako sa lips. Hindi ako naka-react dahil nagulat at kinabahan ako. 15. Nagmamadaling nagpaalam si Wella. Kinuha ni Mayor ang wallet sa bulsa sa likod ng kanyang pantalon. Dumukot siya ng P1,000 na buo. Inabot niya ito kay Wella. Patayo na ako pero hinawakan ni Mayor ang braso ko. Wag daw akong sasama kay Wella. Sinabi ko kay Wella na wag niya akong iiwanan, pero parang wala siyang narinig. Basta tuloy-tuloy siyang umalis. 16. Nung, kami na lang ni Mayor ang natira, pinainom niya ako ng mineral water. Uminom ako dahil nauuhaw ako. Nanlabo ang paningin ko at nanghina ako. 17. Nawalan ako ng malay. Ang sumunod ko na lang na natatandaan ay nandoon na ako sa kwarto. Wala akong damit. Nakadagan si Mayor sa akin. May malaking salamin sa pader. Doon ko nakita na walang kadamit-damit si Mayor. 18. Hawak ako ni Mayor sa magkabilang braso. Pinipisil niya ito kaya nagkaroon ako ng pasa sa kaliwang braso (at ito ay nawala lang pagkatapos ng tatlong araw).

19. Naramdaman ko na pilit na pinasok ni Mayor ang ari niya sa aking ari. Nasaktan ako. Nagmakaawa ako. Umiiyak ako nung sinabi ko sa kanya na tigilan niya ako; nasasaktan ako; may anak rin siyang babae. Sabi niya wag daw akong maingay at i-embrace ko na lang daw siya. Lalo akong umiyak dahil nandidiri ako sa kanya, at sa ginagawa niya sa akin. Naghalo ang galit, pandidiri at takot. Wala akong magawa kundi magmakaawa. Hindi ko siya maitulak dahil nanghihina ako, nakadagan siya sa akin, mataba siya, at hawak-hawak niya ang braso ko. Pero kahit nagmamakaawa ako, tinuloy pa rin niya at pinasok niya ulit ang ari niya sa aking ari. 20. Maya-maya ay tumigil siya. Tumayo siya at sabi niya: "ang panty mo, nasa tabi mo." Kinuha ko ang panty ko, tumayo ako at sinuot ko ito. Hinanap ko ang damit ko, at nakita ko ang walking shorts, bra at t-shirt ko sa sahig. Pinulot ko ito at sinuot ko. Habang sinusuot ko, umiiyak pa rin ako. Pagkatapos kong magbihis, umupo ako sa mahabang upuan sa may gilid ng kama. 21. Samantala, paqkatapos sabihin ni Mayor na nasa tabi ko ang panty ko, nagpunta siya sa banyo na transparent ang pinto. Wala siyang suot pagpunta niya doon. Paglabas niya, nakasuot na siya ng checkered brief na kulay black and white. Pumunta siya sa kabilang gilid ng kama. Kinuha niya ang damit niya na nakahanger sa pader. Sinuot niya ito. Lumabas siya ng kwarto. Hindi nagtagal ay pumasok siya ulit at sinabi niya na nandiyan na daw ang sundo ko. 22. Tumayo ako. Sinabi ko na aalis na ako. Nung papunta na ako sa pintuan, lumapit si Mayor sa akin. May hawak-hawak siyang dalawang pirasong P1,000. Tiniklop niya ito; binaba niya yung neckline ng t-shirt ko, at pinasok niya ang pera sa aking bra. Nagalit ako. Kinuha ko ang pera at tinapon ko ito sa kanya. Sabi ko hindi ako bayarang babae. Nagalit siya at pinagbantaan ako. Sabi niya: "Pag nagsalita ka, alam mo na kung ano ang mangyayari sa iyo." Tiningnan ko siya, at umalis ako pababa. 23. Mayroon tricycle na nakaabang sa labas. Sumunod si Mayor. Lumapit siya sa driver at binigyan niya ito ng P100. Tapos ay umalis na kami. 24. Umiiyak pa rin ako nung nasa tricycle. Sabi ko sa driver na ginahasa ako ni Mayor. Sabi niya masuwerte daw ako at maaga akong pinauwi dahil yung mga ibang babae daw na dinadala kay Mayor ay pinauwi ng madaling-araw o hating-gabi. Minsan dalawa o tatlo pa nga daw ang dinadala doon, at yung iba ay naka-uniform pa. Naawa daw siya sa akin, kaya magsumbong daw ako. Nakokonsensiya daw siya dahil isa siya sa dalawang tricycle driver na naghahatid ng mga babae doon. Sabi pa nga niya, babae din daw ang ina niya, kaya din siya nakokonsensiya. Dinagdag pa niya na kung may kasiyahan kina Mayor, isang van ng mga babae ang nadoon. Pagdating namin sa bahay ng Lola ko, sabi niya bago siya umalis: "Lumaban ka." On December 13, 1996, the private complainant thru her counsel, Atty. Remedios C. Balbin and Asst. Chief State Prosecutor Leonardo Guiab, Jr., of the Department of Justice petitioned this Court for a change of venue. They cited as ground the "great danger to the lives of both the private complainant, the immediate members of her family, and their witnesses as they openly defy the principal accused, Mayor Alonte who is acknowledged as a powerful political figure and almost an institution in Bian, Laguna . . ." On March 31, 1997, the private complainant, thru the then Secretary of Justice, the Honorable Teofisto Guingona and Chief State Prosecutor Jovencio Zuno filed a Manifestation and Motion for the early resolution of the petition for change of venue. They submitted the affidavits of the private complainant, her counsel Atty. Remedios C. Balbin, Dolores Mercado-Yambao, Bienvenido Salandanan and Evelyn Celso to prove their allegation that they "are exposed to kidnapping, harassment, veiled threats and tempting offers of bribe money all intended to extract an 'affidavit of desistance' from the private complainant." Worth bright lining are the two (2) affidavits of Atty. Remedios C. Balbin, counsel for the private complainant, relating the fantastic amount of P10M bribe money allegedly offered to her. The first affidavit dated February 24, 1997 states: I, Remedios C. Balbin, of legal age, Filipino, married, with residence at #5 Uranus Street, Congressional Avenue Subdivision, Quezon City, after having duly sworn in accordance with law, depose and say:

1. That I am the Private Prosecutor in Criminal Case No. 96-19-B for rape, filed with the Bian RTC, Branch 25, entitled "People of the Philippines vs. Bayani Arthur Alonte, et al.; 2. That as Private Prosecutor, it is my avowed duty to be faithful to the interests of my client, Ms. Juvie-lyn Punongbayan; 3. That on several occasions, I was visited at my Office at the Quezon City Hall Compound, by a lawyer who introduced himself as Atty. Leo C. Romero, representing the Accused Mayor Bayani Arthur Alonte; 4. That my calendar at the People's Bureau, Quezon City Hall, shows that he came to see me about eight (8) times, but we talked only about three (3) times because I was always busy attending to the problems of Quezon City's urban poor and the landowners of private properties illegally occupied by them; 5. That in two (2) occasions, Atty. Romero conveyed to me the message of Mayor Alonte, namely, to drop the rape case against him, and that he would give a consideration of Ten Million Pesos (P10 Million) to be apportioned as follows: Five Million Pesos (P5M) for the Private Complainant Three Million Pesos (P3M) for me as Private Prosecutor Two Million Pesos (P2M) for him as the mediator 6. That I explained to Atty. Romero that money does not matter at all to the Complainant and her family even if they have very modest means; that they want justice, which means a conviction for the charge of rape; 7. That I also explained to Atty. Romero that the money he was offering me was of no consequence to me because I had access to the resources of my two (2) daughters, both of whom are in the medical field abroad, and of Mr. Filomeno Balbin, Labor Attached then assigned in Riyadh; 8. That I told him that I cannot be tempted with his offer because spiritual consideration are more important to me than the material. Also, that I usually handle cases pro bono (at abunado pa) where the litigant is in dire need of legal assistance but cannot afford to pay for the lawyer's fees, as in Juvie-lyn's case; 9. That I gave Atty. Romero a copy of the decision of the Supreme Court promulgated December 10 1996, entitled "People of the Philippines vs. Robert Cloud" (GR No. 119359: Crim. Case No. Q-9012660) for parricide involving the death of a 2 1/2 year old boy. I wrote on page one of the xerox copy of the decision: "To Atty. Leo Romero so you will understand," and to which I affixed my signature. 10. That I told him explicitly: "we cannot simplify the entire proceedings. You advise Mayor Alonte to surrender (one mitigating circumstance), plead guilty (another mitigating circumstance), get a conviction and suffer the corresponding penalty. Otherwise, we have nothing to talk about." 11. That I emphasized that his suggestion for Mayor Alonte to plead guilty to "act of lasciviousness" merely was ridiculous; 12. That when the Complainant's Affidavit on the offer of Ms. Emily Vasquez for a valuable consideration in exchange for an affidavit of desistance in the rape was exposed by media, Atty. Romero came to see me and thanked me for not exposing him in similar fashion. I assured him that he will not be an exception and that I was just too busy then to execute an affidavit on the matter, as I do now;

13. That I have not received other similar offers of valuable material consideration from any other person, whether private party or government official; However, I have been separately advised by several concerned persons that I was placing my personal safety at great risk. The victim's family will have great difficulty in finding another lawyer to "adopt" them in the way I did, which gives them strength to pursue their case with confidence and the accused Mayor is aware that I am the obstacle to an out-of-court settlement of the case. Also, that I had my hands full, as it is, as the Head of the QC People's Bureau, Housing Development Center, and Special Task Force an Squatting and Resettlement, and the numerous cases filed by me or against me, connected with my performance of official duties, and I should not add more legal problems despite my authority to engage in private law practice. 14. That this affidavit is executed in order to put on record the attempt to influence me directly, in exchange for valuable consideration to drop the rape charge against Mayor Bayani Arthur Alonte. February 24, 1997, City of Manila. SGD. REMEDIOS C. BALBIN REMEDIOS C. BALBIN SUBSCRIBED AND SWORN to before me this 26th day of March, 1997, Metro Manila. Community Tax Certificate 5208733 Date Issue 2-10-97 Quezon City NOTARY PUBLIC SGD. JUANITO L. GARCIA ATTY. JUANITO L. GARCIA NOTARY PUBLIC UNTIL Dec. 31, 1997 PTR No. 63-T-033457 ISSUED AT MLA. ON 1-2-97 TAN161-570-81 Doc. No. 950; Page No. 170; Series of 1997. In her second Affidavit dated March 26, 1997, Atty. Balbin declared in no uncertain language that the bribe offer for private complainant to make a desistance was increased from P10,000.00 to P20,000.00, viz: REPUBLIC OF THE PHILIPPINES ) CITY OF MANILA ) s.s.

AFFIDAVIT I, REMEDIOS C. BALBIN, of legal age, Filipino, married, and with postal address at No. 5 Uranus Street, Congressional Avenue Subdivision Quezon City, after having duly sworn in accordance with law, depose and say: 1. That I am the Private Prosecutor in the rape case filed by the "minor Juvie-Lyn Punongbayan against Mayor Bayani Arthur Alonte of Bian, Laguna. 2. That earlier, I reported to Secretary Teofisto Guingona, State Prosecutor Jovencio R. Zuno, Asst. Chief State Prosecutor Leonardo Guiyab, Jr., and Director Jude Romano of the Witness Protection Program, the instances of substantial amounts amounting to several millions, to my client, to her relatives, including her maternal grandmother, and to myself; 3. That despite the published declaration by the Department of Justice of its determination to prosecute those who offered the bribes, new emissaries of Mayor Alonte persist in making offers, as follows: a. On Thursday, March 6, 1997, at about 3:15 o'clock in the afternoon, Atty. Dionisio S. Daga came to see me at my office at the People's Bureau, Office of the Mayor, of Squatting case which I filed against his clients; b. That after a brief exchange on the status of the case, he confided to me his real purpose; c. That he started off by saying that he was the legal counsel of the gambling lords of Malabon for which he gets a monthly retainer of fifteen thousand pesos (P15,000.00), exclusive of transportation expenses, etc. d. The he also stated that the network of gambling lords throughout the country is quite strong and unified; e. That I then asked him: "What do you mean is Alonte into gambling too? that he is part of the network you speak of?" f. That Atty. Daga did not reply but instead said: "they are prepared to double the offer made to you by Atty. Romero which was published in the newspapers" at P10 Million; g. That I told him that all the money in the world will not make me change my position against my client's executing a desistance, and that only Alonte's voluntary surrender, plea of guilty in rape, conviction and the imposition of the corresponding penalty will satisfy the ends of justice; h. That I told him that my client's case is not isolated, there being five (5) other minors similarly placed; and Alonte should be stopped from doing more harm; i. That Atty. Daga then told me in Pilipino "if you do not accede to a desistance, then, they will be forced to . . .". j. That because he did not complete his sentence, I asked him directly: "What do you mean? What do you intend to do? And he replied: Go on with the case Buy the Judge." k. That unbelieving, I reacted, saying; "but they have already done so, Judge Francisco at Binan suddenly changed his attitude towards the Prosecution. Perhaps, you are referring to the next judge when the petition for change of venue is finally granted?" 1. That Atty. Daga did not reply, and he reiterated that his principals, referring to them again as "gambling lords," want a desistance, after which he excused himself and left. 4. That I execute this Affidavit to attest to the truth of the incident with Atty. Dionisio S. Daga which occurred in the afternoon of March 6, 1997, at my Office, stressing herein my surprise over his daring in

making yet another monetary offer to me in exchange for my client's desistance and my feeling of fear for the first time since I started "handling" this case against Alonte; 5. That despite what I perceived as veiled threats of Atty. Daga, I will seek justice in behalf of Juvie-Lyn Punongbayan, with the indispensable initiatives, participation and support of the Department of Justice under Secretary Teofisto Guingona. FURTHER AFFIANT SAYETH NAUGHT.

SGD. RE

ATTY. R Affiant REPUBLIC OF THE PHILIPPINES ) CITY OF MANILA ) S.S. SUBSCRIBED AND SWORN TO BEFORE ME this 26th day of March, 1997. Community Tax Certificate 5208733 Date Issued 2-10-97 Quezon City Notary Public SGD. JUANITO L. GARCIA ATTY. JUANITO L. GARCIA NOTARY PUBLIC UNTIL DEC. 31, 1997 PTR NO. 63-T-033457 ISSUED AT MLA. ON 1-2-87 TAN -161-570-81 Doc. No. 948; Book No. 190; Page No. XLIII; Series of 1997. After the alleged bribe money was increased from P10M to P20M the complexion of the case changed swiftly. On June 25, 1997, Atty. Balbin filed a Motion to Resume Proceedings in Br. 25 of the RTC of Bian, Laguna. Attached to the Motion was the Affidavit of Desistance of the private complainant which states:

I, Juvie-lyn Yambao Punongbayan, 17 years of age, a resident of No. 5 Uranus Street, Congressional Avenue Subdivision, Quezon City, duly assisted by private legal counsel and my parents, after having duly sworn in accordance with law, depose and say: 1. That I am the Complainant in the rape case filed against Mayor Bayani "Arthur" Alonte of Bian, Laguna, with the RTC-Branch 25 of Binan, Laguna; 2. That the case has been pending for some time, on preliminary issues, specifically, (a) change of venue, filed with the Supreme Court; (b) propriety of the appeal to the Court of Appeals, and after its denial by said court, brought to the Office of the President, on the veracity of the findings of the Five-Man Investigating Panel of the State Prosecutor's Office, and the Secretary of Justice and (c) a hold-departure order filed with the Bian Court; 3. That the legal process moves ever so slowly, and meanwhile, I have already lost two (2) semesters of my college residence. And when the actual trial is held after all the preliminary issues are finally resolved, I anticipate a still indefinite suspension of my schooling to attend the hearings; 4. That during the entire period since I filed the case, my family has lived a most abnormal life: my father and mother had to give up their jobs; my younger brother, who is in fourth grade, had to stop his schooling, like myself; 5. That I do not blame anyone for the long, judicial process; I simply wish to stop and live elsewhere with my family, where we can start life anew, and live normally once again; 6. That I pray that I be allowed to withdraw my complaint for rape and the other charge for child abuse wherein the Five-Man investigating Penal of the Office of the State Prosecutor found a prima facie case although the information has not been filed, and that I will not at any time revive this, and related cases or file new cases whether, criminal, civil and/or administrative here or anywhere in the Philippines; 7. That I likewise realize that the execution of this Affidavit will put to doubt my credibility as a witnesscomplainant; 8. That this is my final decision reached without fear or favor, premised on a corresponding commitment that there will be no reprisals in whatever form, against members of the police force or any friends who extended assistance to me in whatever way, in my search for justice. WHEREOF, I affix my signature, this 25th day of June, 1997, in Quezon City. SGD. JUVIE-LYN Y. PUNONGBAYAN JUVIE-LYN Y. PUNONGBAYAN Assisted by: SGD. REMEDIOS C. BALBIN ATTY. REMEDIOS C. BALBIN Private Prosecutor In the presence of: SGD. PABLO PUNONGBAYAN PABLO PUNONGBAYAN Father

SGD. JULIE Y. PUNONGBAYAN JULIE Y. PUNONGBAYAN Mother SUBSCRIBED AND SWORN to before me this 25 the day of June, 1997, in Quezon City. SGD. ILLEGIBLE Administering Officer RTC Branch 94 Quezon City Obviously, the Motion to Resume Proceedings was intended to get the trial court's approval for the dismissal of the rape case against the petitioners. Indeed, three days thereafter or on June 28, 1997, Atty. Ramon C. Casino moved in behalf of the petitioners to dismiss the petition for change of venue then pending in this Court citing the affidavit of desistance of the private complainant. On August 22, 1997, however, Asst. Chief State Prosecutor Guiyab opposed the motion. He alleged that he has control of the prosecution of the rape case and that he was not aware of the desistance of the private complainant. The legal maneuvers to dismiss the rape case against the petitioners on the basis of the alleged affidavit of desistance of the private complainant did not find the favor of this Court. On September 2, 1997, this Court unanimously granted the petition for change of venue, ruling among others, viz: xxx xxx xxx These affidavits give specific names, dates and methods being used to abort, by coercion or corruption, the prosecution of Criminal Case No. 9619-B. It is thus incorrect for oppositors Alonte and Concepcion to contend that the fear of the petitioner, her private counsel and her witnesses are too generalized if not fabricated. Indeed, the probability that in desisting from pursuing her complaint for rape, petitioner, a minor, may have succumbed to some illicit influence and undue pressure. To prevent possible miscarriage of justice is good excuse to grant the petition to transfer the venue of Criminal Case No. 9619-B from Bian, Laguna to the City of Manila. IN VIEW WHEREOF, the Petition for Change of Venue from Bian, Laguna to the City of Manila is granted. The Executive Judge of RTC Manila is ordered to raffle Crim. Case No. 9619-B to any of its branches. The judge to whom Crim. Case No. 9619-B shall be raffled shall resolve the petitioner's Motion to Resume Proceedings filed in Br. XXV of the RTC of Bian, Laguna and determine the voluntariness and validity of petitioner's desistance in light of the opposition of the public prosecutor, Asst. Chief State Prosecutor Leonardo Guiyab. The branch clerk of court of Br. XXV of the RTC of Bian, Laguna is ordered to personally deliver to the Executive Judge of Manila the complete records of Crim. Case No. 9619-B upon receipt of this Resolution. On September 17, 1997, Criminal Case No. 9619-B (re-docketed by the Clerk of Court of Manila as Crim. Case No. 97-159955) was raffled to Br. 53 of the RTC of Manila, presided by the respondent judge, the Honorable Maximo A. Savellano. On October 9, 1997, the respondent judge issued warrants of arrest against the petitioners after a finding of probable cause. On October 28, 1997, an Administrative Order of the DOJ was issued empowering First Assistant City Prosecutor Marilyn R. O. Campomanes to prosecute the case at bar. Asst. Chief State Prosecutor Leonardo Guiab, Jr., who opposed the affidavit of desistance was relieved from the case. The reason given in the

Administrative Order was ". . . in the interest of public service." Prosecutor Campomanes was authorized "to move for its (case) dismissal if the evidence on record so warrant . . ." 1 The arraignment of the petitioners took place on November 7, 1997. The State was represented by Prosecutor Marilyn Campomanes. Petitioner Alonte was represented by Atty. Jose Flaminiano and Atty. Sigfrid A. Fortun. Petitioner Concepcion was represented by Atty. Ramon C. Casano. Atty. Remedios Balbin who had previously exposed under oath the threats to the life of the private complainant and her witnesses and the repeated attempts to buy complainant's desistance was absent. 2 Petitioners pled not guilty to the charge of rape upon their arraignment. 3 Pre-trial was then waived by both the prosecution and the defense. The proceedings continued and Prosecutor Campomanes presented the private complainant, Ms. Punongbayan who testified on her affidavit of desistance. She declared that her desistance was her "personal" decision with the consent of her parents. 4 She said she was neither paid nor pressured to desist. On questions by the respondent judge, however, she affirmed the truth of her affidavit dated October 31, 1996 that she was raped by petitioner Alonte. Prosecutor Campomanes marked and offered her affidavit of desistance as Exhibit "A". 5 She called on other witnesses to testify on the voluntariness of the affidavit of desistance. The parents of the complainant Pablo 6 and Julie 7 Punongbayan declared that they did not receive any monetary consideration for the desistance of their minor daughter. Neither were they pressured to give their consent to the desistance. Fourth Asst. Provincial Prosecutor Alberto Nofuente averred that the affidavit of desistance was signed and sworn to before him in the presence of the complainant's parents and private counsel, Atty. Balbin. He said he explained the affidavit to them and that the complainant voluntarily signed the same. 8 After their testimonies, Prosecutor Campomanes made the manifestation that "with the presentation of our witnesses and the marking of our documents (sic) we are now closing the case and that we are praying for the dismissal of the case. 9 The respondent judge ruled "the case is submitted for decision." 10 Atty. Flaminiano orally prayed that petitioner Alonte be granted bail and Prosecutor Campomanes offered no objection. 11 On November 10, 1997, petitioner Alonte filed an Urgent Motion to Admit to Bai1. 12 In her Comment, Prosecutor Campomanes agreed and averred, viz.: 13 xxx xxx xxx 1. That she received a copy of the Petition for Bail. 2. That on the hearing of the instant case on November 7, 1997, the Prosecution presented its witnesses who vehemently signified their intention not to further prosecute the case in Court and there being no other witnesses to present, the undersigned is left with no alternative but to seek the dismissal of the considering that without the testimony of said witnesses this case has nothing to stand on in Court. 3. That for the aforestated reason, the People interposes no objection to the granting of Bail and in fact justice and equity dictate that it joins the accused in his prayer for the granting of bail in the amount of P150,000 (ONE HUNDRED FIFTY THOUSAND PESOS). 4. That for the aforementioned bases, the People hereby manifests its position that the case be immediately dismissed or at least the accused be granted bail since the record proves that there is no more evidence to sustain the charge against him such that the granting of bail is proper and in order. 5. That as a general rule, a hearing on the petition for bail is necessary to prove that the guilt is not strong but in this particular case there is no need for hearing since the prosecution cannot prove its case against the accused as it has no other evidence or witnesses to be presented. On November 17, 1997, petitioner Alonte, thru counsel, filed an Urgent Plea to Resolve the Motion for Bail. 14 On the same date, Prosecutor Campomanes manifested that "she deems it proper and in accord with justice and fair play to join the aforestated motion." 15 On November 25, 1997, December 1, 1997, December 8, 1997 and December 10, 1997, petitioner Alonte filed a Second, Third, Fourth, and Fifth Motion early for resolution of his petition for bail. 16 In all these

motions, Atty. Fortun, counsel of petitioner Alonte, alleged that copy of the motion . . . could not be served in person upon the private prosecutor" (Atty. Balbin) in light of the distance between their offices. 17 He relied on section 13, Rule 11 of the 1997 Rules on Civil Procedure. The motions were not resolved by the respondent judge. On December 18, 1997, the respondent judge promulgated his Decision convicting the petitioners and sentencing them to reclusion perpetua. On whether of the affidavit of desistance can be a ground for dismissal of the rape case against the petitioners, the respondent judge held: The first issue to be determined and resolved is the "voluntariness and validity of petitioner's desistance in the light of the opposition of the public prosecutor Asst. Chief State Prosecutor Leonardo Guiab." (p. 7, SC Resolution En Banc, dated September 2, 199/.7; [Rollo, p. 253]) It is appropriate to quote again a portion of the 7-page Resolution En Banc of the highest tribunal, to wit; "Indeed, the probability (exists) that in desisting from pursuing her complaint for rape, petitioner, a minor, may have succumbed to some illicit influence and undue pressure. To prevent possible miscarriage of justice is a good excuse to grant the petition for change of venue . . ." (Rollo, p. 202). The Court shall narrate the facts leading to the desistance of the private complainant which are embodied in the two (2) affidavits of her lawyer, Atty. Remedios C. Balbin, with whom the private complainant lives at No. 5 Uranus St., Congressional Avenue Subdivision, Quezon City. One affidavit is dated May 24 1997, (sic) while March 26, 1997. The said affidavits are attached as exhibits to the aforementioned Manifestation and Motion for the Resolution of Petition for Change of Venue filed by the private complainant Juvie-Lyn Y. Punongbayan. Exh. "C", dated May 24, 1997, (Rollo, pp. 216-219) is hereby quoted as follows: xxx xxx xxx It clearly appears in the abovequoted affidavit that repeated bribe offers from a lawyer representing the accused Mayor Bayani Arthur Alonte in the total amount of Ten Million Pesos (P10,000,000.00) were made to Atty. Balbin, allocated as follows: (1) Five Million Pesos (5,000,000.00) for the private complainant Juvielyn Y. Punongbayan; (2) Three Million Pesos (P3,000,000.00) for her (Atty. Balbin); and (3) Two Million Pesos (P2,000,000.00) for the mediator. In the subsequent affidavit, dated March 26, 1997, executed by Atty. Remedios C. Balbin (Exh. F, Rollo, pp. 224-225) she narrated in detail the continuing veiled threats and the very tempting and escalating offer to increase the amount of the bribe money offered to her and the private complainant after her first affidavit, by doubling the first offer of Ten Million Pesos (P10,000,000.00) to Twenty Million Pesos (P20,000,000.00), in exchange for her client's desistance, but also accompanied with veiled threats, if refused. Said affidavit is quoted, as follows: xxx xxx xxx The Court underscores paragraphs (b), (c), (d), (e), (f), (g), (h), (i), (j), (k), and (l), particularly paragraphs (i), (j) and specially paragraph (k) of the abovequoted affidavit of Atty. Balbin which insinuates that the presiding Judge of the RTC Bian, Laguna, had already been bought, and that accused Alonte thru his numerous emissaries, will also buy or bribe the "the next judge when the petition for change of venue is finally granted." In view of this insinuation, the undersigned presiding Judge is very careful in deciding this case, lest he be placed under suspicion that he is also receiving blood money that continues to flow. The Court wants to have internal peace the peace which money cannot buy. Money is the root of all evil. The Holy Holy Scriptures also remind judges and jurists: "You shall not act dishonestly in rendering judgment. Show neither partiality to the weak nor deterrence to the mighty, but judge your fellow men justly," (Leviticus 19:15). The Scriptures further say: "What does it profit a man if he gains the whole world but suffers the loss of his soul?" (Mt. 16:26) and "No one can serve two (2) masters. . . You cannot serve God and mammon." (Mt. 6:24, Luke 16:13). It is not out of place to quote the Holy Scriptures because the Honorable Supreme Court has been doing so in its quest for truth and justice. Thus, People vs. Garcia, 209 SCRA 164, 174, the highest tribunal, in ruling that the flight of an accused is evidence of guilt on his part, quoted the old Testament, as follows: It was written in the literature of Old Testament several centuries ago that:

The wicked man fleeth though no man pursueth, but the righteous are as bold as a lion. (Proverbs, 28:1) Subsequently, on June 25, 1997, the private complainant and her lawyer suddenly somersaulted or changed their common positions or attitudes in the prosecution of this case. Evidently, veiled threats and money had replaced the "spiritual consideration" which earlier, to them were "more important than the material" to quote Atty. Balbin in her first affidavit (Rollo, p. 217), and her reply to Atty. Dionisio S. Daga that "all the money in the world will not make me change my position against my client's executing a desistance, and that only Alonte's voluntary surrender, plea of guilty to rape, conviction and the imposition of the corresponding penalty will satisfy the ends of justice. On June 26, 1997, the private complainant thru her counsel, Atty. Remedios C. Balbin, filed a Motion to Resume Proceedings, dated June 25, 1997, (Rollo, pp. 238-244) praying therein that the RTC, Bian, Laguna, where this case was still pending, vacate its Order to Suspend Hearings, to enable it to act on all incidents including private Complainant's Affidavit of Desistance attached thereto. (Rollo, pp. 240-241) which affidavit of desistance is quoted hereunder as follows: xxx xxx xxx This Court, as the trier of facts, is tasked by the highest tribunal to find out if the private complainant, a minor "may have succumbed to some illicit influence and undue pressure, in order to prevent a possible miscarriage of justice." Evidently, the veiled threats and acceptance of the bribe money in allocated amounts which was subsequently raised to the irresistible amount of at least P20,000,000.00, compelled, impelled and/or tempted the private complainant her father Pablo Punongbayan and her mother Julie Y. Punongbayan, and her lawyer and private prosecutor Atty. Remedios C. Balbin, who did not appear in Court on November 7, 1997, despite notice, to execute the said "Affidavit of Desistance" which was the ultimate goal of the accused. It is very obvious that the private complainant a minor, "succumbed to some illicit influence and undue pressure," to borrow the language of the Honorable Supreme Court En Banc. It would be the height of extreme naivete or gullibility for any normal individual to conclude otherwise. The Court does not believe that the private complainant, her lawyer, and her parents charged but in exchange for a plea of guilty the charge is reduced to homicide and the accused is allowed to claim a number of mitigating circumstances. It is not uncommon for estafa, libel, physical injuries and even homicide cases to be dismissed because the complainant has lost interest or alleged that the complaint was filed as a result of a misunderstanding. A number of examples can be given and they can fill a book." Again, in People vs. Evangelista, L-45089, April 27, 1982, 113 SCRA 713, 720, the Supreme Court further declared: It may be noted that the crimes in question (forcible abduction with rape) are among those enumerated in Article 344 of the Revised Penal Code, which crimes cannot be prosecuted de officio. In other words, the crimes of abduction and rape are in the nature of private offense, inasmuch as the law has reposed "the right to institute such proceedings exclusively and successively in the offended person, her parents, grandparents or guardian" . . . Accordingly, if after filing the case at face at bar decided that she was unable to face the scandal of public trial, or, if for some private reason she preferred to suffer the outraged in silence, then, corollary to her right institute the proceedings, she should have been allowed to withdraw her complaint and desist from prosecuting the case (Emphasis supplied). Petitioner Concepcion did not submit any motion for reconsideration. Without waiting for the resolution of his motion for reconsideration, petitioner Alonte repaired to this Court. So did petitioner Concepcion. Without doubt, the petitions at bar raise two (2) fulcrum issues: (1) the correctness of the ruling of the respondent judge that the desistance of the complainant is not a ground to dismiss the rape charge against the petitioners, and (2) the invalidity of petitioners' conviction on the ground of denial of due process. I agree with the learned disquisition of Mr. Justice Vitug that we should set aside the conviction of the petitioners for patent violation of their right to due process of law. I write this Separate Opinion to highlight the erroneousness of the shocking stance of the State Prosecutor that the rape charge should be

dismissed in view of the desistance of the private complainant. But our ruling giving no effect on the affidavit of desistance should not based on the reason that it was procured by threat or intimidation or any payment of money as the respondent judge opined in his Decision. The respondent judge arrived at this conclusion on the basis of the affidavits of Atty. Balbin, the counsel of the private complainant. This is erroneous for Atty. Balbin was never called to the witness stand to testify on the truth of her affidavits. Her affidavits therefore are hearsay evidence and should not have been relied upon by the respondent judge. The affidavit of desistance cannot abort the rape charge against the petitioners on the simple ground that it did not state that the private complainant-affiant was not raped by petitioner Alonte. In truth, the private complainant affirmed her earlier Reply-Affidavit where she narrated in detail how petitioner Alonte raped her. Moreover, the rape charge has been filed in Court and it is not anymore the absolute privilege of the camplainant to desist from continuing with the case. This separate opinion unequivocably addresses the issue of whether the desistance of the victim can stop the further prosecution of the petitioners. I In Philippine jurisprudence, desistance has been equated with recantation or retraction. To "recant" means to "withdraw or repudiate formally and publicly;" 18 "to renounce or withdraw prior statement." 19 To "retract" means to "take back;" "to retract an offer is to withdraw it before acceptance." 20 A recantation usually applies to a complainant or witness, either for the prosecution or the defense, who has previously given an extra-judicial statement 21 or testimony in court. 22 Repudiation may be made in writing, i.e., by sworn statement, 23 or by testifying on the witness stand. 24 Mere retraction by a witness or by complainant of his or her testimony does not necessarily vitiate the original testimony or statement, if credible. 25 The general rule is that courts look with disfavor upon retractions of testimonies previously given in court. 26 This rule applies to crimes, 27 offenses 28 as well as to administrative offenses. 29 The reason is because affidavits of retraction can easily be secured from poor and ignorant witnesses, usually through intimidation or for monetary consideration. 30 Moreover, there is always the probability that they will later be repudiated 31 and there would never be an end to criminal litigation. 32 It would also be a dangerous rule for courts to reject testimonies solemnly taken before courts of justice simply because the witnesses who had given them later on changed their minds for one reason or another. This would make solemn trials a mockery and place the investigation of the truth at the mercy of unscrupulous witnesses. 33 The general rule notwithstanding, the affidavit should not be peremptorily dismissed as a useless scrap of paper. There are instances when a recantation may create serious doubts as to the guilt of the accused. 34 A retracted statement or testimony must be subject to scrupulous examination. The previous statement or testimony and the subsequent one must be carefully compared and the circumstances under which each was given and the reasons and motives for the change carefully scrutinized. The veracity of each statement or testimony must be tested by the credibility of the witness which is left for the judge to decide. 35 In short, only where there exists special circumstances in the case which when coupled with the retraction raise doubts as to the truth of the testimony or statement given, can a retraction be considered and upheld. 36 A survey of our jurisprudence reveals that the same rule has been applied to affidavits of desistance. 37 An affidavit of desistance is understood to be a sworn statement executed by a complainant in a criminal or administrative case that he or she is discontinuing the action filed upon his or her complaint for whatever reason he or she may cite. The court attaches no persuasive value to a desistance especially when executed as an afterthought. 38 However, a in retractions, an affidavit of desistance calls for a reexamination of the records of the case. 39 In private crimes, an affidavit of desistance filed by a private complainant is also frowned upon by the courts. Although such affidavit may deserve a second look at the case, there is hardly an instance when this Court upheld it in private crimes and dismissed the case on the sole basis thereof. Indeed, a case is not dismissed upon mere affidavit of desistance of the complainant, particularly where there exist special circumstances that raise doubts as to the reliability of the affidavit. 40

Usually in private crimes, an affidavit of desistance is executed by the private complainant after pardoning and forgiving the offender. In this instance, the court treats the affidavit as an express pardon. 41 It does not ipso facto dismiss the case but determines the timeliness and validity thereof. Private crimes are crimes against chastity such as adultery and concubinage, seduction, abduction, rape and acts of lasciviousness. Their institution, prosecution and extinction are governed by Article 344 of the Revised Penal Code, viz: Art. 344. Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape and acts of lasciviousness. The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouse. The offended party cannot institute criminal prosecution without including both the guilty parties, if they are both alive, nor in any case, if he shall have consented or pardoned the offenders. The offenses of seduction, abduction, rape, acts of lasciviousness, shall not be prosecuted except upon a complaint filed by the offended party or her parents, grand parents, or guardian, nor in any case, the offender has been expressly pardoned by the above-named persons, as the case may be. In cases of seduction, abduction, acts of lasciviousness and rape, the marriage of the offender with the offended party shall extinguish the criminal action or remit the penalty already imposed upon him. The provisions of this paragraph shall also be applicable to the co-principals, accomplices and accessories after the fact of the above-mentioned crimes. Private crimes cannot be prosecuted except upon complaint filed by the offended party. In adultery and concubinage, the offended party must implead both the guilty parties and must not have consented or pardoned the offenders. In seduction, abduction, rape and acts of lasciviousness, the complaint must be filed by the offended party or her parents, grandparents or guardian. The complainant must not have expressly pardoned the offender. Article 344 also provides for the extinction of criminal liability in private crimes. It mentions two modes: pardon and marriage, which when validly and timely made, result in the total extinction of criminal liability of the offender. 42 The pardon in private crimes must be made before the institution of the criminal action. 43 In adultery and concubinage, the pardon may be express or implied while in seduction, abduction, rape and acts of lasciviousness, the pardon must be express. In all cases, the pardon must come prior to the institution of the criminal action. After the case has been filed in court, any pardon made by the private complainant, whether by sworn statement or on the witness stand, cannot extinguish criminal liability. The only act that extinguishes the penal action and the penalty that may have been imposed is the marriage between the offender and the offended party. 44 As this Court declared in the case of Donio-Teves v. Vamenta, Jr.: 45 The term "private crimes" in reference to felonies which cannot be prosecuted except upon complaint filed by the aggrieved party, is misleading. Far from what it implies, it is not only the aggrieved party who is offended in such crimes but also the State. Every violation of penal laws results in the disturbance of public order and safety which the State is committed to uphold and protect. If the law imposes the condition that private crimes like adultery shall not be prosecuted except upon complaint filed by the offended party, it is, as herein pointed earlier "out of consideration for the aggrieved party who might prefer to suffer the outrage in silence rather than go through the scandal of a public trial." Once a complaint is filed, the will of the offended party is ascertained and the action proceeds just as in any other crime. This is shown by the fact that after filing a complaint, any pardon given by the complainant to the offender would be unavailing. It is true, the institution of the action in so called the private crimes is at the option of the action of the aggrieved party. But it is equally true that once the choice is made manifest, the law will be applied in full force beyond the control of, and inspite of the complainant, his death notwithstanding. The filing of a complaint in private crimes is merely a condition precedent to the exercise by the proper authorities of the power to prosecute the guilty parties. 46 It is the complaint that starts the prosecutory proceeding without which the fiscal and the court cannot exercise jurisdiction over the case. 47 Once the complaint is filed, the action proceeds just as in any other crime.

We follow the postulate that a criminal offense is an outrage to the sovereign state 48 and the right of prosecution for a crime is one of the attributes of the sovereign power. 49 Thus, criminal actions are usually commenced by the State, through the People of the Philippines, and the offended party is merely a complaining witness. 50 In private crimes, however, or those which cannot be prosecuted de oficio, the offended party assumes a more predominant role since the right to commence the action or refrain therefrom, is a matter exclusively within his power and option. 51 The sovereign state deems it the wiser policy, in private crimes, to let the aggrieved party and her family decide whether to expose to public view the vices, faults and disgraceful acts occurring in the family. 52 But once the offended party files the complaint, her will is ascertained and the action proceeds just as in any other crime. The decision of the complainant to undergo the scandal of a public trial necessarily witness connotes the willingness to face the scandal. 53 The private complainant is deemed to have shed off her privacy and the crime ceases to be "private" and becomes "public." The State, through the fiscal, takes over the prosecution of the case and the victim's change of heart and mind will not affect the State's right to vindicate the outrage against the violation of its law. 54 This is the reason why pardon in crimes of chastity must come before the institution of the criminal action. Pardon by the offended party extinguishes criminal liability when made while the crime is still "private" and within the control of the offended party. But once the case is filed in court, the pardon cannot ipso facto operate to dismiss the case. After the institution of the criminal action, any pardon given by the complainant to the offender would be unavailing, 55 except of course when the offender validly marries the offended party. 56 The offended party's pardon of the offender in a seduction case after the criminal action had been instituted constitutes no bar to said action. 57 A pardon given in a rape case after the filing of the action in court "comes too late to hide the shameful occurrence from public notice." 58 Even the death of the offended party cannot extinguish the case once it is filed in court. 59 If the offended party dies immediately after filing the complaint but before the institution of the criminal action, his death is not a ground to dismiss the case. 60 Clearly, the will and participation of the offended party is necessary only to determine whether to file the complaint or not. Thereafter, the will of the State prevails. Article 344 does not include desistance of the offended party from prosecuting the case as a ground for extinction of criminal liability whether total 61 or partial. 62 Hence, only when the desistance is grounded on forgiveness and pardon and is made before the institution of the criminal action, can it extinguish criminal liability. Desistance, per se, is not equivalent to pardon. In the case at bar, the "Affidavit of Desistance" of Juvielyn is not an express pardon of the accused and the crime committed. Private complainant desisted from prosecuting the case against the petitioners because she wished "to start life anew and live normally again." She reiterated this reason on the witness stand. She complained that members of the media were bothering and harassing her and that she wanted to go back to her normal life. She never said that she forgave the petitioners. She did not absolve them from their culpability. She did not give any exculpatory fact that would raise doubts about her rape. She did not say that she consented to petitioner Alonte's acts. Moreover, the rape case is already in court and it is no longer her right to decide whether or not the charge should be continued. As we held in Crespo v. Mogul: 63 xxx xxx xxx The rule in this jurisdiction is that once a complaint or information is filed in court any disposition of the case as to its dismissal or conviction or acquittal of the accused rests in the sound discretion of the court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in court he cannot impose his opinion on the trial court. The court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the court who has the option to grant or deny the same. It does not matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation. II

The next issue is the validity of the conviction of petitioners. Petitioners contend that they were convicted without undergoing any trial. Respondent judge insists otherwise. He claims that petitioners submitted the case on the merits and relied principally on the Affidavit of Desistance. He recounts the events that took place before the presentation of private complainant as revealed by the transcripts of November 7, 1997, viz: Prosecutor Campomanes Your Honor, the complaining witness/private complainant Juvielyn Punongbayan is present here in Court, and a while ago, I was given a copy of her Affidavit of Desistance so I would like to present her in order to attest to the veracity of her Affidavit of Desistance, your Honor, and for the Court to her testimony. Court We will have a separate trial, this involved a heinous offense and that there is not even any plea-bargaining in this case. Prosecutor Campomanes Yes, your Honor, I understand that. Court So you have to mark now your documentary evidence in preparation for trial. Prosecutor Campomanes Yes, your Honor. Court There are many documentary evidence mentioned by the Supreme Court in its seven (7) page . . . (may I see the record) seven(7) page resolution, dated September 2, 1997, and that this case was assigned to this Court as the trial Judge. This Court has already arraigned the accused and he pleaded not guilty, and so the next step is pre-trial. The Order of the Supreme Court is to direct this Court not only to determine the voluntariness but also the validity of the Affidavit of Desistance mentioned by the Court which was also brought to the attention of the Supreme Court. Prosecutor Campomanes And to the Department of Justice likewise your Honor. Court And that's why the Supreme Court instead of resolving it sent the records to this Court to determine the voluntariness and the validity of the Desistance, but they must be determined after trial on the merits. Prosecutor Campomanes Your Honor please, representing the people. Its events now will prove that there is no more need for the prosecution to go on trial of this case, considering that the private complainant herself had already furnished the Department of Justice a copy of her Affidavit of Desistance. Court

What does it say there? Prosecutor Campomanes That she is no longer interested in further prosecuting this case, and that she is now desisting in going to full blown trial, and considering your Honor further, that this is a private offense, then, the Department of Justice feels that it can not be more popish than the Pope. Court That is the stand of the Department of Justice. But the Supreme Court belongs to a different Department, I am governed by the Supreme Court, because I am a Judge, I am not from the Department of Justice. Prosecutor Campomanes We are all aware your Honor, that we will just be prolonging the agony, in fairness to everybody, considering that we are representing the people, but we are not representing only . . . the Department of Justice is not only representing the complainant in this case but we are also for justice to be rendered to the respondent as well. Court I am rendering fair justice to everyone. That is the sense of this Court. That is the perception of this Court with respect to the Supreme Court resolution, in the first place, that Affidavit does not negate the commission of the crime. You want us to dismiss this case when the Affidavit does not negate the commission of the crime? Prosecutor Campomanes That's why we will be presenting her in Open Court, your Honor. Court Just to affirm that? Prosecutor Campomanes No to prove . . . Court What happened . . . how about the Prosecution Department, they have control of the prosecution, and the offended party herself, has not negated the commission of the crime, is there anything there to show that she did not . . . that the accused . . . did not commit the crime charged? Prosecutor Campomanes That's why we will be presenting her in Open Court, whatever is not here will be clarified. Court So, we will go to a trial on the merits you present that affidavit, that's a part of your evidence. Prosecutor Campomanes

The people is ready to present that . . . the complaining witness. Court We will have a trial on the merits. Prosecutor Campomanes Your Honor please, being a woman, I have extensively discussed this matter with the complaining witness and she intimated to this representation that she can not bear another day of coming here, with all these people staring at her with everybody looking at her as if she is something . . . . Court On December 13, 1996, petitioner Punongbayan through private counsel, Atty. Remedios C. Balbin and the Assistant State Prosecutor Guiab, Jr. who is not here both were relieved and changed with a new lady prosecutor, prayed that the case be tried by the Regional Trial Court of Manila, they cited the following grounds: "THE GREAT DANGER TO THE LIVES OF BOTH PRIVATE COMPLAINANT AND THE IMMEDIATE MEMBERS OF HER FAMILY AND THEIR WITNESSES AS THEY OPENLY IDENTIFIED THE PRINCIPAL ACCUSED MAYOR ALONTE WHO IS ACKNOWLEDGED AS A POWERFUL POLITICAL FIGURE AND ALMOST AN INSTITUTION IN BIAN LAGUNA AND [THE] GREAT DANGERS TO THE LIVES OF WITNESSES WHO OTHERWISE WISH TO COME OUT IN THE OPEN AND TESTIFY ON THE MORAL AND CRIMINAL ACTIVITIES OF BOTH ACCUSED PERPETRATED UPON VERY YOUNG GIRLS STUDENTS OF BIAN LAGUNA THAT WILL NOT DO SO IN THE TERMS OF THE ACCUSED MAYOR" that is why it was the prayer of the offended party and the Supreme Court granted the Motion for Change of Venue, and we are now on a new venue, where the danger to the lives of the witness is no longer present, on January 7, 1997, Alonte filed an Opposition thereto, and on April 23, 1997, the petitioner, the offended party through the Honorable Secretary of Justice Teofisto Guingona and Chief State Prosecutor Jovencito Zuno filed a Manifestation and Motion for Resolution of the Petition For Change of Venue. Attached to the motion of the Honorable Secretary of Justice Guingona and Chief State Prosecutor Jovencito Zuno were the affidavits of the petitioner, her lawyer, Atty. Remedios Balbin, Dolores Yambao, Bienvenido Salandanan and Evelyn Celso with their contention that the prosecution witnesses and the private counsel of petitioner are exposed to kidnapping, harassment, grave threats and tempting offers of bribe money, that was the stand of your department . . . And then later on June 28, 1997 . . . we have to review this case because this involves public interest . . . on June 23, 1997, Atty. Casano in behalf of the oppositors, two (2) oppositors, filed a motion to dismiss the petition for change of venue in the Supreme Court on the ground that it has become moot, he alleges that the petitioner despite the motion to resume the proceedings in criminal case no. 96-19-B in said motion, the petitioner informed the Court that she is desisting . . . informed the Supreme Court that she is desisting from proceeding with the case, it is the same affidavit she prayed that the trial Court, on her affidavit of desistance . . . Atty. Casano also submitted to this Court, to the Supreme Court the manifestation of the petitioner joining the oppositors' prayer to dismiss her petition to a change of venue, the manifestation was also signed by Atty. Remedios Balbin as private prosecutor, the Supreme Court required Assistant Chief State Prosecutor Leonardo Guiab to comment on the motion to dismiss filed by Atty. Casano which involve the same affidavit that you have just read. On August 22, 1997, assistant Chief State Prosecutor Guiab filed his comment, he alleged that he is not aware of the desistance of the petitioner in criminal case no. 96-19-B, and in said desistance there is two (2) legal effect, [that] the public prosecutor has the control and direction of the prosecution in criminal action, he prayed for the denial of the Motion to Dismiss and reiterated his petition for change of venue, the Supreme Court granted the change of venue and in granting the change of venue the highest tribunal which we are all subordinates, says: for the record, in their manifestation and motion for the resolution of petition to a change of venue the Secretary of Justice and Chief State Prosecutor submitted various affidavits in support of their allegations that prosecution witnesses and private legal counsel are exposed to KIDNAPPING, HARASSMENT, GRAVE THREATS, AND TEMPTING OFFERS OF BRIBE MONEY all intended to extract an affidavit of

desistance from the complainant, this is now the affidavit of desistance in her affidavit dated December 16, 1996, the petitioner the offended party, the herein offended party Juvielyn Punongbayan alleged etc . . . etc . . . in support of her petition and then she alleged that during the last week of Feb. 1997, she was visited by one Lourdes Salaysay, she stated that Mrs. Salaysay told her that Mrs. Alonte, wife of Mayor Alonte requested her to settle Alonte's case, she was informed that Mrs. Alonte was offering P10,000,000.00, will send her to school and give her house and send her parents abroad, Atty. Remedios C. Balbin is not here now, I am just quoting the Supreme Court counsel, private counsel of petitioner also executed an affidavit dated February 1997, quote: the Supreme Court quote to them: to put on record the attempting, influence, directly, in exchange of valuable consideration, that the Rape charge against Mayor Bayani Arthur Alone, she alleged that in two (2) occasions Atty. Romero conveyed to me the message of Mayor Alonte, namely: to drop the rape case against him and that he would give a consideration of P10,000,000.00 to be apportioned as follows: P5,000.00, for the private complainant, your client and the prosecutor P3,000,000.00 for me, as private prosecutor, that is what Atty. Balbin said, P4,000,000.00 for her, the mediator, so there seems to be a liberal flow of blood money, that is why the Supreme Court ordered the Court to determine the validity, and there is another, dated March 19, 1997. I have to remind everybody about what happened, this thing did not come from me, I am not fabricating anything this comes from the highest tribunal jurat, to whom I am responsible another affidavit of Atty. Balbin, she narrated the continuing attempts to bribe her and threatened her, so there were continuing events, they alleged, the People's Bureau, Office of the Mayor of Quezon City, extensively discuss the squatting case with against his client, that after a brief exchange on the status of the case, they confided to me his real purpose, that it started of by saying he was the legal counsel of the gambling lords of Malabon for which he get a monthly retainer of P15,000.00 exclusive of transportation expenses, but he also stated that he knows all the network of the gambling lord throughout the country, which is quite strong and unified, that I then ask him "what do you mean?" "Is Alonte into gambling too, that he is part of the network you speak of?", that Atty. Daga did not reply, but instead said, they are prepared to double the offer made to by Atty. Romero which was published in the newspaper at P10,000,000.00, so, its double, double your money, so its P20,000,000.00, that I told him, its Atty. Balbin, that all the money in the world, all the money in the world will not make me change my position against my client executing a desistance and that Alonte's voluntary surrender plea of guilty to rape, conviction, and the imposition of the corresponding penalty will satisfy the ends of justice, but I told him, that my client's case is not isolated, there being five (5) other miners similarly place and Alonte's will be stopped from doing more harm that Atty. Daga, then told me in Filipino if you do not accede to a desistance, then they will be force to but because he did not [complete] the sentence I asked him directly, what do you mean, what do you intend to do, and he replied, go on with the case, [buy] the judge, [buy] the judge, that I am believing, and I reacted saying, but they have already done so, Judge Francisco Binan, Judge Francisco Binan suddenly change his attitude towards the prosecution, perhaps you are referring to the next judge when the petition for change of venue is finally granted that Atty. Daga did not reply, and he reiterated that his principal referring to them again as gambling lords, wanted desistance, after which he excused himself and left, that I execute this affidavit, as Atty. Balbin attests to the truth of the incident with Atty. Dionisio Daga which occurred in the afternoon of March 6, 1997 at my office, stating . . . (JUDGE READING THE RECORDS OF THE CASE) Court Then, the Supreme Court said, these affidavits, the one attached gave specific names, dates and methods . . . a coercion of corruption, the prosecution of Criminal Case No. 96-19-B (JUDGE CONTINUED READING THE RECORDS OF THE CASE) that is desisting for pursuing her complaint for Rape petitioner a minor, they have . . . illicit, influence and due pressure to prevent . . . Criminal Case No. 96-19-B to any of its Branch, just to call the Criminal Case No. 96-19-B shall be raffled, shall result the petitioner's motion, to resume proceedings filed in Branch 26 in the RTC of Laguna, to determine the voluntariness and validity of the petitioner's desistance in the light of the position of the public prosecutor, Assistant Chief Prosecutor Leonardo Guiab . . . I don't know what will be the outcome . . . you may contend that because of that affidavit of the desistance there is reasonable doubt . . . etc . . . but still, that will be placing the cart before the horse . . . you have to go a regular

trial on the merits . . . because this is a heinous offense which cannot . . . and during the pretrial cannot be subject to a plea-bargaining, and with respect to its new law which took effect in 1993, that is a new one, it was placed to the category of a heinous offense . . . Prosecutor Campomanes So we go on trial your Honor, and we will present the complaining witness, and let the Court decide on the basis of the complainants testimony . . . private complainant's testimony, before this Honorable Court . . . xxx xxx xxx Prosecutor Campomanes That's why we are presenting the private complainant, the principal witness, the mother who is also a signatory to this affidavit of desistance, everybody who have been a part and participant in the making and preparation of this affidavit of desistance, they have already signed these affidavit of desistance. Court And we also have the affidavits mentioned by the Supreme Court, because I was . . . all of those documents in the determination of whether that affidavit is valid. Prosecutor Campomanes Yes, your Honor. Court We . . . the Court cannot close his eyes to the other affidavits . . . because . . . that's why precisely the Supreme Court ordered me to hear this case. Prosecutor Campomanes We understand that your Honor. Court There are may conflicting matters to be solve . . . conflicting matters to be tackled in this case. Prosecutor Campomanes May we present the private complainant, your Honor . . . . 64 The records show that the hearing of November 7, 1997 was set for arraignment of the petitioners. 65 After the counsels made their respective appearances, Prosecutor Campomanes presented her authority to appear as prosecutor in lieu of Asst. Chief State Prosecutor Guiyab, Jr. Both petitioners pleaded not guilty to the charge. Respondent judge then set the case for pretrial which the parties, however, waived. The proceedings continued and Prosecutor Campomanes manifested there was no need for the prosecution to go to trial in view of the Affidavit of Desistance of the private complainant. Respondent judge, however, observed that private complainant did not negate the commission of the crime in her Affidavit of Desistance. Respondent judge expressed his misgivings on the validity of the Affidavit of Desistance because of the September 2, 1997 Resolution of this Court citing affidavits where allegations of bribery were made to extract said affidavit from complainant. Prosecutor Campomanes then offered to present the private complainant to attest to the voluntariness and veracity of her Affidavit of Desistance. Respondent judge averred whether the court should proceed to a trial on the merits. Prosecutor Campomanes declared

that they could go on trial and let the court decide the merits of the case on the basis of the testimony of private complainant and the other witnesses. It was then that private complainant was presented as a witness. From the garbled transcripts of the hearing on November 7, 1997, it is not clear what both respondent judge and the public prosecutor intended the proceedings to be. Respondent judge repeatedly declared that the proceedings before him was to be a trial on the merits. The public prosecutor agreed to go to trial, but at the same time moved to present private complainant and her witnesses to testify on the voluntariness of her Affidavit of Desistance. Respondent judge and the public prosecutor were, obviously, not tuned in to each other. I agree with the majority that the November 7, 1997 proceedings could not have been a trial on the merits. First of all, the proceedings did not conform with the procedure for trial as provided in the 1985 Rules on Criminal Procedure. Section 3 of Rule 119 provides: Sec. 3. Order of Trial. The trial shall proceed in the following order: (a) The prosecution shall present evidence to prove the charge and, in the proper case, the civil liability. (b) The accused may present evidence to prove his defense, and damages, if any, arising from the issuance of any provisional remedy in the case. (c) The parties may then respectively present rebutting evidence only, unless the court, in furtherance of justice, permits them present additional evidence bearing upon the main issue. (d) Upon admission of the evidence, the case shall be deemed submitted for decision unless the court directs the parties to argue orally or to submit memoranda. (e) However, when the accused admits the act charged or omission charged in the complaint or information but interposes lawful defense, the order of trial may be modified accordingly. In the case at bar, petitioners were never instructed to present evidence to prove their defenses. The parties were never given the opportunity to present their respective evidence rebutting the testimony of private complainant. There was no admission by petitioners of the charge in the information as to justify a change in the order of trial. 66 Our criminal rules of procedure strictly provide the step by step procedure to be followed by courts in cases punishable by death. 67 This rule also applies to all other criminal cases, particularly where the imposable penalty is reclusion perpetua. The reason for this is to assure that the State makes no mistake in taking life and liberty except that of the guilty. 68 Thus: Judges should be reminded that each step in the trial process serves a specific purpose. In the trial of criminal cases, the constitutional presumption of innocence in favor of the accused requires that an accused be given sufficient opportunity to present his defense. So with the prosecution as to its evidence. Hence, any deviation from the regular course of trial should always take into consideration the rights of all the parties to the case, whether the prosecution or defense. 69 Second, the admission of private complainant's affidavit of October 21, 1996 was made solely in response to respondent judge's own questioning. 70 It was this affidavit which respondent judge used to convict the petitioners. This affidavit, however, was not marked nor was it formally offered before the court. The Revised rules on Evidence clearly and expressly provide that "[t]he court shall consider no evidence which has not been formally offered." 71 Evidence not formally offered in court will not be taken into consideration by the court in disposing of the issues of the case. Any evidence which a party desires to submit for the consideration of the court must formally be offered by him, 72 otherwise it is excluded and rejected. 73

Third, where there is a doubt as to the nature of the criminal proceedings before the court, this doubt must be resolved in favor of the accused who must be given the widest latitude of action to prove his innocence. 74 It is in petitioners' favor that the proceedings of November 7, 1997 be treated as a hearing on the motion to dismiss, not a trial on the merits. To rule otherwise will effectively deny petitioners due process and all the other rights of an accused under the Bill of Rights and our Rules in Criminal Procedure. Indeed, following respondent judge's finding and assuming that the November 7, 1997 hearing was already a trial on the merits, petitioners were never afforded their right to confront and cross-examine the witness. The court did not, at the very least, inquire as to whether the petitioners wanted to cross-examine private complainant with respect to her affidavit of October 21, 1996. No opportunity to cross-examine was afforded petitioners and their counsels such that they cannot be deemed to have waived said right by inaction. 75 Regalado, Davide, Jr., Romero, Bellosillo, Mendoza and Panganiban, JJ., concur.

Separate Opinions PUNO, J., separate opinion; The facts are critical and need to be focused. Petitioners were charged with rape in Criminal Case No. 15993 which was raffled to Br. 25 of the RTC of Bian, Laguna. The charge is principally based on the following affidavit dated October 31, 1996 of Ms. Juvie-Lyn Punongbayan, a 16-year old minor, viz.: REPLY-AFFIDAVIT (TUGON SA MGA SALAYSAY NILA MAYOR BAYANI ALONTE, WELLA CONCEPCION, RICARDO LACAYAN at JAIME MENDOZA) Ako si JUVIE-LYN Y. PUNONGBAYAN, Filipino, walang asawa, 16 years old, at kasalukuyang nasa pangangalaga ng Department of Social Welfare and Development, matapos makapanumpa ayon sa batas, ay nagsasaad: 1. Wala pong katotohanan ang lahat nakasaad sa mga salaysay ni Mayor Bayani Alonte at Buenaventura "Wella" Concepcion, ng kanilang mga testigo na sila Ricardo (Ading) Lacayan y Aguilar at Jaime Bagtas Mendoza. 2. Ang totoo po ay inabuso ako ni Mayor nung September 12, 1996, katulad nga ng naihayag ko na sa aking sinumpaang salaysay. Ayon sa driver ng tricycle na nasakyan ko pagkatapos ng insidente, hindi lang po ako, kundi marami pa pong babae ang inabuso ni Mayor. Sabi pa nga ng driver ay naaawa siya sa akin, at lumaban daw ako. Tinawagan ko na rin po ang lahat ng mga babae na naging biktima ni Mayor; wag silang matakot, lumabas at ilahad ang pangaabuso ni Mayor. Ang detalya nung panggagahasa ni Alonte at ang partisipasyon ni Wella Concepcion 3. Nakalahad po sa sumusunod na talata ang detalya ng pang-aabuso sa akin ni Mayor. Pinakikita rin dito kung paano nakipagsabwatan kay Wella Concepcion. Sa pamamagitan nito ay mapapabulaanan na rin ang mga nakasaad sa salaysay nila at ng mga testigo nila. 4. Nakilala ko si Wella Concepcion, dance instructor, nung bandang last week ng August 1996. Noon ay naghahanda ako para sa "Miss Education" beauty contest sa Perpetual Help College of Laguna. Doon ako nag-aaral. First year college ako, at education ang kursong pinili ko. Ang nasabing contest ay ginanap nung Sept. 20, 1996. Kapag nagkikita kami ni Wella para sa ensayo, nagkukuwentuhan din kami, at

nabanggit niya na may kaibigan siyang bakla na nagdadala ng babae kay Mayor Alonte. Waway daw ang pangalan ng bakla. Hindi ko pa kilala si Waway noon. 5. Nung Sept. 7, niyaya ako ni Wella na sumali sa dance contest sa "Sang Linggo NAPO SILA" sa Channel 2, na itatanghal sa Sept. 11, 1996. Wala na daw po akong aalalahanin. Siya daw ang bahala sa costume at transportation. Pumayag ang nanay ko, dahil wala na kaming gagastusin. Hindi ko tinanong kay Wella kung saan galing ang costume. Akala ko may ipapagamit lang siya sa akin. 6. Nung Sept. 8, pinakilala ni Wella si Waway sa akin. Si Waway ang nagturo sa amin ng sayaw para sa TV contest. Mula nung araw na yon hanggang Sept. 10 ay nagsanay kami sa bahay ng kapatid ni Waway sa St. Francis Subdivision, Bian, Laguna. Tatlo kami sa dance group: ako at ang dalawang lalaki na ipinakilala sa akin ni Waway: si Melchor at Darius. 7. Nagpunta kami sa studio sa Delta nung Sept. 11. Bago kami magsayaw, habang inaayos ni Wella yung damit ko, sinabi niya na dapat manalo kami dahil si Mayor Alonte daw ang nag-sponsor ng costume namin. Noon ko lang ito nalaman. Hindi kami nanalo sa contest, pero nagkaroon pa rin kami ng premyong P1,500.00 na pinaghatian namin. 8. Pagkatapos ng contest, at nung nakapagpalit na ako ng damit, binabalik ko kay Wella ang costume ko. Sabi niya iuwi ko daw ito dahil gagamitin ko ito sa Miss Education contest, sa presentation ng mga candidates. Mula sa studio, nagpunta kaming lahat sa isang kainan sa tapat ng Delta at, pagkatapos namin kumain, humiwalay yung ibang kasama namin. 9. Dinala ako ni Wella sa isang department store at binili niya ako ng sandals. Inikot niya ako sa lugar na yon at binili niya ako ng pagakain. Tapos ay sumakay kami ng bus pauwi sa Laguna. Nung nasa bus kami, niyaya ako ni Wella na magpunta sa bahay ni Mayor para magpasalamat ng personal para sa costume namin. Pumayag ako at sabi ko kay Wella na sunduin niya ako sa bahay ng 10:00 a.m. sa susunod na araw, Sept. 12. Nakarating ako sa bahay ng 5:00 p.m. ng araw na yon, Sept. 11. 10. Nung Sept. 12, hinintay ko si Wella ng 10:00 a.m. Nung hindi siya dumating umalis kaming Tita ko dahil sinamahan ko siya sa health center. Sumundo pala si Wella doon, pero hindi kami nagkita kasi saglit lang kami doon. Bumalik siya sa bahay, at doon na kami nagkita. Tapos ay umalis kami ni Wella papunta kay Mayor. Tumawid kami ng kalye, at pumara ako ng tricycle. Pero kahit marami na akong pinara, ayaw ni Wella na sumakay doon. Maya-maya, may tricyle na dumating na hindi naman pinara ni Wella. Basta huminto na lang sa harap namin. Doon kami sumakay ni Wella. Si Wella ang nagturo sa driver kung saan kami pupunta. Nag-uusap sila ng driver habang papunta kami kay Mayor. 11. Bumaba kami sa tapat ng bahay na bukas ang gate. May swimming pool sa loob, alam na alam ni Wella and, pasikot-sikot nang bahay; tuloy-tuloy siya sa loob at sumunod naman ako. Wala kaming taong nakita, pero bukas pati yung pintuan ng bahay. Dinala ako ni Wella sa sala. Napakaganda ng loob ng bahay. Mayroong wall paper na may design na leaves and flowers; may carpet sa sahig. May mahabang hagdan patungo sa dalawang pintuan. 12. Tinanong ko kay Wella kung nasaan si Mayor. Sabi niya ay nasa munisipyo daw; darating na daw maya-maya. Pagkaraan ng mga 15 minutes, dumating si Mayor na nakasakay sa green na kotse. Lumabas siya sa kaliwang pintuan sa harap ng kotse. Wala siyang kasama. 13. Pumasok si Mayor sa loob ng bahay. Naghubad siya ng sapatos. Sabi ni Wella: "Mayor, si Juvie; Juvie si Mayor." 14. Umupo si Mayor sa tabi ko. Kinamayan niya ako at sinabi niya: "Hi, I'm Arthur" sabay hinalikan niya sa ako sa lips. Hindi ako naka-react dahil nagulat at kinabahan ako. 15. Nagmamadaling nagpaalam si Wella. Kinuha ni Mayor ang wallet sa bulsa sa likod ng kanyang pantalon. Dumukot siya ng P1,000 na buo. Inabot niya ito kay Wella. Patayo na ako pero hinawakan ni Mayor ang braso ko. Wag daw akong sasama kay Wella. Sinabi ko kay Wella na wag niya akong iiwanan, pero parang wala siyang narinig. Basta tuloy-tuloy siyang umalis.

16. Nung, kami na lang ni Mayor ang natira, pinainom niya ako ng mineral water. Uminom ako dahil nauuhaw ako. Nanlabo ang paningin ko at nanghina ako. 17. Nawalan ako ng malay. Ang sumunod ko na lang na natatandaan ay nandoon na ako sa kwarto. Wala akong damit. Nakadagan si Mayor sa akin. May malaking salamin sa pader. Doon ko nakita na walang kadamit-damit si Mayor. 18. Hawak ako ni Mayor sa magkabilang braso. Pinipisil niya ito kaya nagkaroon ako ng pasa sa kaliwang braso (at ito ay nawala lang pagkatapos ng tatlong araw). 19. Naramdaman ko na pilit na pinasok ni Mayor ang ari niya sa aking ari. Nasaktan ako. Nagmakaawa ako. Umiiyak ako nung sinabi ko sa kanya na tigilan niya ako; nasasaktan ako; may anak rin siyang babae. Sabi niya wag daw akong maingay at i-embrace ko na lang daw siya. Lalo akong umiyak dahil nandidiri ako sa kanya, at sa ginagawa niya sa akin. Naghalo ang galit, pandidiri at takot. Wala akong magawa kundi magmakaawa. Hindi ko siya maitulak dahil nanghihina ako, nakadagan siya sa akin, mataba siya, at hawak-hawak niya ang braso ko. Pero kahit nagmamakaawa ako, tinuloy pa rin niya at pinasok niya ulit ang ari niya sa aking ari. 20. Maya-maya ay tumigil siya. Tumayo siya at sabi niya: "ang panty mo, nasa tabi mo." Kinuha ko ang panty ko, tumayo ako at sinuot ko ito. Hinanap ko ang damit ko, at nakita ko ang walking shorts, bra at tshirt ko sa sahig. Pinulot ko ito at sinuot ko. Habang sinusuot ko, umiiyak pa rin ako. Pagkatapos kong magbihis, umupo ako sa mahabang upuan sa may gilid ng kama. 21. Samantala, paqkatapos sabihin ni Mayor na nasa tabi ko ang panty ko, nagpunta siya sa banyo na transparent ang pinto. Wala siyang suot pagpunta niya doon. Paglabas niya, nakasuot na siya ng checkered brief na kulay black and white. Pumunta siya sa kabilang gilid ng kama. Kinuha niya ang damit niya na nakahanger sa pader. Sinuot niya ito. Lumabas siya ng kwarto. Hindi nagtagal ay pumasok siya ulit at sinabi niya na nandiyan na daw ang sundo ko. 22. Tumayo ako. Sinabi ko na aalis na ako. Nung papunta na ako sa pintuan, lumapit si Mayor sa akin. May hawak-hawak siyang dalawang pirasong P1,000. Tiniklop niya ito; binaba niya yung neckline ng t-shirt ko, at pinasok niya ang pera sa aking bra. Nagalit ako. Kinuha ko ang pera at tinapon ko ito sa kanya. Sabi ko hindi ako bayarang babae. Nagalit siya at pinagbantaan ako. Sabi niya: "Pag nagsalita ka, alam mo na kung ano ang mangyayari sa iyo." Tiningnan ko siya, at umalis ako pababa. 23. Mayroon tricycle na nakaabang sa labas. Sumunod si Mayor. Lumapit siya sa driver at binigyan niya ito ng P100. Tapos ay umalis na kami. 24. Umiiyak pa rin ako nung nasa tricycle. Sabi ko sa driver na ginahasa ako ni Mayor. Sabi niya masuwerte daw ako at maaga akong pinauwi dahil yung mga ibang babae daw na dinadala kay Mayor ay pinauwi ng madaling-araw o hating-gabi. Minsan dalawa o tatlo pa nga daw ang dinadala doon, at yung iba ay naka-uniform pa. Naawa daw siya sa akin, kaya magsumbong daw ako. Nakokonsensiya daw siya dahil isa siya sa dalawang tricycle driver na naghahatid ng mga babae doon. Sabi pa nga niya, babae din daw ang ina niya, kaya din siya nakokonsensiya. Dinagdag pa niya na kung may kasiyahan kina Mayor, isang van ng mga babae ang nadoon. Pagdating namin sa bahay ng Lola ko, sabi niya bago siya umalis: "Lumaban ka." On December 13, 1996, the private complainant thru her counsel, Atty. Remedios C. Balbin and Asst. Chief State Prosecutor Leonardo Guiab, Jr., of the Department of Justice petitioned this Court for a change of venue. They cited as ground the "great danger to the lives of both the private complainant, the immediate members of her family, and their witnesses as they openly defy the principal accused, Mayor Alonte who is acknowledged as a powerful political figure and almost an institution in Bian, Laguna . . ." On March 31, 1997, the private complainant, thru the then Secretary of Justice, the Honorable Teofisto Guingona and Chief State Prosecutor Jovencio Zuno filed a Manifestation and Motion for the early resolution of the petition for change of venue. They submitted the affidavits of the private complainant, her counsel Atty. Remedios C. Balbin, Dolores Mercado-Yambao, Bienvenido Salandanan and Evelyn Celso to prove their allegation that they "are exposed to kidnapping, harassment, veiled threats and tempting offers of bribe money all intended to extract an 'affidavit of desistance' from the private complainant."

Worth bright lining are the two (2) affidavits of Atty. Remedios C. Balbin, counsel for the private complainant, relating the fantastic amount of P10M bribe money allegedly offered to her. The first affidavit dated February 24, 1997 states: I, Remedios C. Balbin, of legal age, Filipino, married, with residence at #5 Uranus Street, Congressional Avenue Subdivision, Quezon City, after having duly sworn in accordance with law, depose and say: 1. That I am the Private Prosecutor in Criminal Case No. 96-19-B for rape, filed with the Bian RTC, Branch 25, entitled "People of the Philippines vs. Bayani Arthur Alonte, et al.; 2. That as Private Prosecutor, it is my avowed duty to be faithful to the interests of my client, Ms. Juvie-lyn Punongbayan; 3. That on several occasions, I was visited at my Office at the Quezon City Hall Compound, by a lawyer who introduced himself as Atty. Leo C. Romero, representing the Accused Mayor Bayani Arthur Alonte; 4. That my calendar at the People's Bureau, Quezon City Hall, shows that he came to see me about eight (8) times, but we talked only about three (3) times because I was always busy attending to the problems of Quezon City's urban poor and the landowners of private properties illegally occupied by them; 5. That in two (2) occasions, Atty. Romero conveyed to me the message of Mayor Alonte, namely, to drop the rape case against him, and that he would give a consideration of Ten Million Pesos (P10 Million) to be apportioned as follows: Five Million Pesos (P5M) for the Private Complainant Three Million Pesos (P3M) for me as Private Prosecutor Two Million Pesos (P2M) for him as the mediator 6. That I explained to Atty. Romero that money does not matter at all to the Complainant and her family even if they have very modest means; that they want justice, which means a conviction for the charge of rape; 7. That I also explained to Atty. Romero that the money he was offering me was of no consequence to me because I had access to the resources of my two (2) daughters, both of whom are in the medical field abroad, and of Mr. Filomeno Balbin, Labor Attached then assigned in Riyadh; 8. That I told him that I cannot be tempted with his offer because spiritual consideration are more important to me than the material. Also, that I usually handle cases pro bono (at abunado pa) where the litigant is in dire need of legal assistance but cannot afford to pay for the lawyer's fees, as in Juvie-lyn's case; 9. That I gave Atty. Romero a copy of the decision of the Supreme Court promulgated December 10 1996, entitled "People of the Philippines vs. Robert Cloud" (GR No. 119359: Crim. Case No. Q-90-12660) for parricide involving the death of a 2 1/2 year old boy. I wrote on page one of the xerox copy of the decision: "To Atty. Leo Romero so you will understand," and to which I affixed my signature. 10. That I told him explicitly: "we cannot simplify the entire proceedings. You advise Mayor Alonte to surrender (one mitigating circumstance), plead guilty (another mitigating circumstance), get a conviction and suffer the corresponding penalty. Otherwise, we have nothing to talk about." 11. That I emphasized that his suggestion for Mayor Alonte to plead guilty to "act of lasciviousness" merely was ridiculous; 12. That when the Complainant's Affidavit on the offer of Ms. Emily Vasquez for a valuable consideration in exchange for an affidavit of desistance in the rape was exposed by media, Atty. Romero came to see me

and thanked me for not exposing him in similar fashion. I assured him that he will not be an exception and that I was just too busy then to execute an affidavit on the matter, as I do now; 13. That I have not received other similar offers of valuable material consideration from any other person, whether private party or government official; However, I have been separately advised by several concerned persons that I was placing my personal safety at great risk. The victim's family will have great difficulty in finding another lawyer to "adopt" them in the way I did, which gives them strength to pursue their case with confidence and the accused Mayor is aware that I am the obstacle to an out-of-court settlement of the case. Also, that I had my hands full, as it is, as the Head of the QC People's Bureau, Housing Development Center, and Special Task Force an Squatting and Resettlement, and the numerous cases filed by me or against me, connected with my performance of official duties, and I should not add more legal problems despite my authority to engage in private law practice. 14. That this affidavit is executed in order to put on record the attempt to influence me directly, in exchange for valuable consideration to drop the rape charge against Mayor Bayani Arthur Alonte. February 24, 1997, City of Manila. SGD. REMEDIOS C. BALBIN REMEDIOS C. BALBIN SUBSCRIBED AND SWORN to before me this 26th day of March, 1997, Metro Manila. Community Tax Certificate 5208733 Date Issue 2-10-97 Quezon City NOTARY PUBLIC SGD. JUANITO L. GARCIA ATTY. JUANITO L. GARCIA NOTARY PUBLIC UNTIL Dec. 31, 1997 PTR No. 63-T-033457 ISSUED AT MLA. ON 1-2-97 TAN161-570-81 Doc. No. 950; Page No. 170; Series of 1997. In her second Affidavit dated March 26, 1997, Atty. Balbin declared in no uncertain language that the bribe offer for private complainant to make a desistance was increased from P10,000.00 to P20,000.00, viz: REPUBLIC OF THE PHILIPPINES )

CITY OF MANILA ) s.s. AFFIDAVIT I, REMEDIOS C. BALBIN, of legal age, Filipino, married, and with postal address at No. 5 Uranus Street, Congressional Avenue Subdivision Quezon City, after having duly sworn in accordance with law, depose and say: 1. That I am the Private Prosecutor in the rape case filed by the "minor Juvie-Lyn Punongbayan against Mayor Bayani Arthur Alonte of Bian, Laguna. 2. That earlier, I reported to Secretary Teofisto Guingona, State Prosecutor Jovencio R. Zuno, Asst. Chief State Prosecutor Leonardo Guiyab, Jr., and Director Jude Romano of the Witness Protection Program, the instances of substantial amounts amounting to several millions, to my client, to her relatives, including her maternal grandmother, and to myself; 3. That despite the published declaration by the Department of Justice of its determination to prosecute those who offered the bribes, new emissaries of Mayor Alonte persist in making offers, as follows: a. On Thursday, March 6, 1997, at about 3:15 o'clock in the afternoon, Atty. Dionisio S. Daga came to see me at my office at the People's Bureau, Office of the Mayor, of Squatting case which I filed against his clients; b. That after a brief exchange on the status of the case, he confided to me his real purpose; c. That he started off by saying that he was the legal counsel of the gambling lords of Malabon for which he gets a monthly retainer of fifteen thousand pesos (P15,000.00), exclusive of transportation expenses, etc. d. The he also stated that the network of gambling lords throughout the country is quite strong and unified; e. That I then asked him: "What do you mean is Alonte into gambling too? that he is part of the network you speak of?" f. That Atty. Daga did not reply but instead said: "they are prepared to double the offer made to you by Atty. Romero which was published in the newspapers" at P10 Million; g. That I told him that all the money in the world will not make me change my position against my client's executing a desistance, and that only Alonte's voluntary surrender, plea of guilty in rape, conviction and the imposition of the corresponding penalty will satisfy the ends of justice; h. That I told him that my client's case is not isolated, there being five (5) other minors similarly placed; and Alonte should be stopped from doing more harm; i. That Atty. Daga then told me in Pilipino "if you do not accede to a desistance, then, they will be forced to . . .". j. That because he did not complete his sentence, I asked him directly: "What do you mean? What do you intend to do? And he replied: Go on with the case Buy the Judge." k. That unbelieving, I reacted, saying; "but they have already done so, Judge Francisco at Binan suddenly changed his attitude towards the Prosecution. Perhaps, you are referring to the next judge when the petition for change of venue is finally granted?" 1. That Atty. Daga did not reply, and he reiterated that his principals, referring to them again as "gambling lords," want a desistance, after which he excused himself and left.

4. That I execute this Affidavit to attest to the truth of the incident with Atty. Dionisio S. Daga which occurred in the afternoon of March 6, 1997, at my Office, stressing herein my surprise over his daring in making yet another monetary offer to me in exchange for my client's desistance and my feeling of fear for the first time since I started "handling" this case against Alonte; 5. That despite what I perceived as veiled threats of Atty. Daga, I will seek justice in behalf of Juvie-Lyn Punongbayan, with the indispensable initiatives, participation and support of the Department of Justice under Secretary Teofisto Guingona. FURTHER AFFIANT SAYETH NAUGHT. SGD. REMEDIOS C. BALBIN ATTY. REMEDIOS C. BALBIN Affiant REPUBLIC OF THE PHILIPPINES ) CITY OF MANILA ) S.S. SUBSCRIBED AND SWORN TO BEFORE ME this 26th day of March, 1997. Community Tax Certificate 5208733 Date Issued 2-10-97 Quezon City Notary Public SGD. JUANITO L. GARCIA ATTY. JUANITO L. GARCIA NOTARY PUBLIC UNTIL DEC. 31, 1997 PTR NO. 63-T-033457 ISSUED AT MLA. ON 1-2-87 TAN -161-570-81 Doc. No. 948; Book No. 190; Page No. XLIII; Series of 1997. After the alleged bribe money was increased from P10M to P20M the complexion of the case changed swiftly.

On June 25, 1997, Atty. Balbin filed a Motion to Resume Proceedings in Br. 25 of the RTC of Bian, Laguna. Attached to the Motion was the Affidavit of Desistance of the private complainant which states: I, Juvie-lyn Yambao Punongbayan, 17 years of age, a resident of No. 5 Uranus Street, Congressional Avenue Subdivision, Quezon City, duly assisted by private legal counsel and my parents, after having duly sworn in accordance with law, depose and say: 1. That I am the Complainant in the rape case filed against Mayor Bayani "Arthur" Alonte of Bian, Laguna, with the RTC-Branch 25 of Binan, Laguna; 2. That the case has been pending for some time, on preliminary issues, specifically, (a) change of venue, filed with the Supreme Court; (b) propriety of the appeal to the Court of Appeals, and after its denial by said court, brought to the Office of the President, on the veracity of the findings of the Five-Man Investigating Panel of the State Prosecutor's Office, and the Secretary of Justice and (c) a hold-departure order filed with the Bian Court; 3. That the legal process moves ever so slowly, and meanwhile, I have already lost two (2) semesters of my college residence. And when the actual trial is held after all the preliminary issues are finally resolved, I anticipate a still indefinite suspension of my schooling to attend the hearings; 4. That during the entire period since I filed the case, my family has lived a most abnormal life: my father and mother had to give up their jobs; my younger brother, who is in fourth grade, had to stop his schooling, like myself; 5. That I do not blame anyone for the long, judicial process; I simply wish to stop and live elsewhere with my family, where we can start life anew, and live normally once again; 6. That I pray that I be allowed to withdraw my complaint for rape and the other charge for child abuse wherein the Five-Man investigating Penal of the Office of the State Prosecutor found a prima facie case although the information has not been filed, and that I will not at any time revive this, and related cases or file new cases whether, criminal, civil and/or administrative here or anywhere in the Philippines; 7. That I likewise realize that the execution of this Affidavit will put to doubt my credibility as a witnesscomplainant; 8. That this is my final decision reached without fear or favor, premised on a corresponding commitment that there will be no reprisals in whatever form, against members of the police force or any friends who extended assistance to me in whatever way, in my search for justice. WHEREOF, I affix my signature, this 25th day of June, 1997, in Quezon City. SGD. JUVIE-LYN Y. PUNONGBAYAN JUVIE-LYN Y. PUNONGBAYAN Assisted by: SGD. REMEDIOS C. BALBIN ATTY. REMEDIOS C. BALBIN Private Prosecutor In the presence of: SGD. PABLO PUNONGBAYAN

PABLO PUNONGBAYAN Father SGD. JULIE Y. PUNONGBAYAN JULIE Y. PUNONGBAYAN Mother SUBSCRIBED AND SWORN to before me this 25 the day of June, 1997, in Quezon City. SGD. ILLEGIBLE Administering Officer RTC Branch 94 Quezon City Obviously, the Motion to Resume Proceedings was intended to get the trial court's approval for the dismissal of the rape case against the petitioners. Indeed, three days thereafter or on June 28, 1997, Atty. Ramon C. Casino moved in behalf of the petitioners to dismiss the petition for change of venue then pending in this Court citing the affidavit of desistance of the private complainant. On August 22, 1997, however, Asst. Chief State Prosecutor Guiyab opposed the motion. He alleged that he has control of the prosecution of the rape case and that he was not aware of the desistance of the private complainant. The legal maneuvers to dismiss the rape case against the petitioners on the basis of the alleged affidavit of desistance of the private complainant did not find the favor of this Court. On September 2, 1997, this Court unanimously granted the petition for change of venue, ruling among others, viz: xxx xxx xxx These affidavits give specific names, dates and methods being used to abort, by coercion or corruption, the prosecution of Criminal Case No. 9619-B. It is thus incorrect for oppositors Alonte and Concepcion to contend that the fear of the petitioner, her private counsel and her witnesses are too generalized if not fabricated. Indeed, the probability that in desisting from pursuing her complaint for rape, petitioner, a minor, may have succumbed to some illicit influence and undue pressure. To prevent possible miscarriage of justice is good excuse to grant the petition to transfer the venue of Criminal Case No. 9619-B from Bian, Laguna to the City of Manila. IN VIEW WHEREOF, the Petition for Change of Venue from Bian, Laguna to the City of Manila is granted. The Executive Judge of RTC Manila is ordered to raffle Crim. Case No. 9619-B to any of its branches. The judge to whom Crim. Case No. 9619-B shall be raffled shall resolve the petitioner's Motion to Resume Proceedings filed in Br. XXV of the RTC of Bian, Laguna and determine the voluntariness and validity of petitioner's desistance in light of the opposition of the public prosecutor, Asst. Chief State Prosecutor Leonardo Guiyab. The branch clerk of court of Br. XXV of the RTC of Bian, Laguna is ordered to personally deliver to the Executive Judge of Manila the complete records of Crim. Case No. 9619-B upon receipt of this Resolution. On September 17, 1997, Criminal Case No. 9619-B (re-docketed by the Clerk of Court of Manila as Crim. Case No. 97-159955) was raffled to Br. 53 of the RTC of Manila, presided by the respondent judge, the Honorable Maximo A. Savellano. On October 9, 1997, the respondent judge issued warrants of arrest against the petitioners after a finding of probable cause.

On October 28, 1997, an Administrative Order of the DOJ was issued empowering First Assistant City Prosecutor Marilyn R. O. Campomanes to prosecute the case at bar. Asst. Chief State Prosecutor Leonardo Guiab, Jr., who opposed the affidavit of desistance was relieved from the case. The reason given in the Administrative Order was ". . . in the interest of public service." Prosecutor Campomanes was authorized "to move for its (case) dismissal if the evidence on record so warrant . . ." 1 The arraignment of the petitioners took place on November 7, 1997. The State was represented by Prosecutor Marilyn Campomanes. Petitioner Alonte was represented by Atty. Jose Flaminiano and Atty. Sigfrid A. Fortun. Petitioner Concepcion was represented by Atty. Ramon C. Casano. Atty. Remedios Balbin who had previously exposed under oath the threats to the life of the private complainant and her witnesses and the repeated attempts to buy complainant's desistance was absent. 2 Petitioners pled not guilty to the charge of rape upon their arraignment. 3 Pre-trial was then waived by both the prosecution and the defense. The proceedings continued and Prosecutor Campomanes presented the private complainant, Ms. Punongbayan who testified on her affidavit of desistance. She declared that her desistance was her "personal" decision with the consent of her parents. 4 She said she was neither paid nor pressured to desist. On questions by the respondent judge, however, she affirmed the truth of her affidavit dated October 31, 1996 that she was raped by petitioner Alonte. Prosecutor Campomanes marked and offered her affidavit of desistance as Exhibit "A". 5 She called on other witnesses to testify on the voluntariness of the affidavit of desistance. The parents of the complainant Pablo 6 and Julie 7 Punongbayan declared that they did not receive any monetary consideration for the desistance of their minor daughter. Neither were they pressured to give their consent to the desistance. Fourth Asst. Provincial Prosecutor Alberto Nofuente averred that the affidavit of desistance was signed and sworn to before him in the presence of the complainant's parents and private counsel, Atty. Balbin. He said he explained the affidavit to them and that the complainant voluntarily signed the same. 8 After their testimonies, Prosecutor Campomanes made the manifestation that "with the presentation of our witnesses and the marking of our documents (sic) we are now closing the case and that we are praying for the dismissal of the case. 9 The respondent judge ruled "the case is submitted for decision." 10 Atty. Flaminiano orally prayed that petitioner Alonte be granted bail and Prosecutor Campomanes offered no objection. 11 On November 10, 1997, petitioner Alonte filed an Urgent Motion to Admit to Bai1. 12 In her Comment, Prosecutor Campomanes agreed and averred, viz.: 13 xxx xxx xxx 1. That she received a copy of the Petition for Bail. 2. That on the hearing of the instant case on November 7, 1997, the Prosecution presented its witnesses who vehemently signified their intention not to further prosecute the case in Court and there being no other witnesses to present, the undersigned is left with no alternative but to seek the dismissal of the considering that without the testimony of said witnesses this case has nothing to stand on in Court. 3. That for the aforestated reason, the People interposes no objection to the granting of Bail and in fact justice and equity dictate that it joins the accused in his prayer for the granting of bail in the amount of P150,000 (ONE HUNDRED FIFTY THOUSAND PESOS). 4. That for the aforementioned bases, the People hereby manifests its position that the case be immediately dismissed or at least the accused be granted bail since the record proves that there is no more evidence to sustain the charge against him such that the granting of bail is proper and in order. 5. That as a general rule, a hearing on the petition for bail is necessary to prove that the guilt is not strong but in this particular case there is no need for hearing since the prosecution cannot prove its case against the accused as it has no other evidence or witnesses to be presented. On November 17, 1997, petitioner Alonte, thru counsel, filed an Urgent Plea to Resolve the Motion for Bail. 14 On the same date, Prosecutor Campomanes manifested that "she deems it proper and in accord with justice and fair play to join the aforestated motion." 15

On November 25, 1997, December 1, 1997, December 8, 1997 and December 10, 1997, petitioner Alonte filed a Second, Third, Fourth, and Fifth Motion early for resolution of his petition for bail. 16 In all these motions, Atty. Fortun, counsel of petitioner Alonte, alleged that copy of the motion . . . could not be served in person upon the private prosecutor" (Atty. Balbin) in light of the distance between their offices. 17 He relied on section 13, Rule 11 of the 1997 Rules on Civil Procedure. The motions were not resolved by the respondent judge. On December 18, 1997, the respondent judge promulgated his Decision convicting the petitioners and sentencing them to reclusion perpetua. On whether of the affidavit of desistance can be a ground for dismissal of the rape case against the petitioners, the respondent judge held: The first issue to be determined and resolved is the "voluntariness and validity of petitioner's desistance in the light of the opposition of the public prosecutor Asst. Chief State Prosecutor Leonardo Guiab." (p. 7, SC Resolution En Banc, dated September 2, 199/.7; [Rollo, p. 253]) It is appropriate to quote again a portion of the 7-page Resolution En Banc of the highest tribunal, to wit; "Indeed, the probability (exists) that in desisting from pursuing her complaint for rape, petitioner, a minor, may have succumbed to some illicit influence and undue pressure. To prevent possible miscarriage of justice is a good excuse to grant the petition for change of venue . . ." (Rollo, p. 202). The Court shall narrate the facts leading to the desistance of the private complainant which are embodied in the two (2) affidavits of her lawyer, Atty. Remedios C. Balbin, with whom the private complainant lives at No. 5 Uranus St., Congressional Avenue Subdivision, Quezon City. One affidavit is dated May 24 1997, (sic) while March 26, 1997. The said affidavits are attached as exhibits to the aforementioned Manifestation and Motion for the Resolution of Petition for Change of Venue filed by the private complainant Juvie-Lyn Y. Punongbayan. Exh. "C", dated May 24, 1997, (Rollo, pp. 216-219) is hereby quoted as follows: xxx xxx xxx It clearly appears in the abovequoted affidavit that repeated bribe offers from a lawyer representing the accused Mayor Bayani Arthur Alonte in the total amount of Ten Million Pesos (P10,000,000.00) were made to Atty. Balbin, allocated as follows: (1) Five Million Pesos (5,000,000.00) for the private complainant Juvielyn Y. Punongbayan; (2) Three Million Pesos (P3,000,000.00) for her (Atty. Balbin); and (3) Two Million Pesos (P2,000,000.00) for the mediator. In the subsequent affidavit, dated March 26, 1997, executed by Atty. Remedios C. Balbin (Exh. F, Rollo, pp. 224-225) she narrated in detail the continuing veiled threats and the very tempting and escalating offer to increase the amount of the bribe money offered to her and the private complainant after her first affidavit, by doubling the first offer of Ten Million Pesos (P10,000,000.00) to Twenty Million Pesos (P20,000,000.00), in exchange for her client's desistance, but also accompanied with veiled threats, if refused. Said affidavit is quoted, as follows: xxx xxx xxx The Court underscores paragraphs (b), (c), (d), (e), (f), (g), (h), (i), (j), (k), and (l), particularly paragraphs (i), (j) and specially paragraph (k) of the abovequoted affidavit of Atty. Balbin which insinuates that the presiding Judge of the RTC Bian, Laguna, had already been bought, and that accused Alonte thru his numerous emissaries, will also buy or bribe the "the next judge when the petition for change of venue is finally granted." In view of this insinuation, the undersigned presiding Judge is very careful in deciding this case, lest he be placed under suspicion that he is also receiving blood money that continues to flow. The Court wants to have internal peace the peace which money cannot buy. Money is the root of all evil. The Holy Holy Scriptures also remind judges and jurists: "You shall not act dishonestly in rendering judgment. Show neither partiality to the weak nor deterrence to the mighty, but judge your fellow men justly," (Leviticus 19:15). The Scriptures further say: "What does it profit a man if he gains the whole world but suffers the loss of his soul?" (Mt. 16:26) and "No one can serve two (2) masters. . . You cannot serve God and mammon." (Mt. 6:24, Luke 16:13). It is not out of place to quote the Holy Scriptures because the Honorable Supreme Court has been doing so in its quest for truth and justice. Thus, People vs. Garcia, 209 SCRA 164, 174, the highest tribunal, in ruling that the flight of an accused is evidence of guilt on his part, quoted the old Testament, as follows:

It was written in the literature of Old Testament several centuries ago that: The wicked man fleeth though no man pursueth, but the righteous are as bold as a lion. (Proverbs, 28:1) Subsequently, on June 25, 1997, the private complainant and her lawyer suddenly somersaulted or changed their common positions or attitudes in the prosecution of this case. Evidently, veiled threats and money had replaced the "spiritual consideration" which earlier, to them were "more important than the material" to quote Atty. Balbin in her first affidavit (Rollo, p. 217), and her reply to Atty. Dionisio S. Daga that "all the money in the world will not make me change my position against my client's executing a desistance, and that only Alonte's voluntary surrender, plea of guilty to rape, conviction and the imposition of the corresponding penalty will satisfy the ends of justice. On June 26, 1997, the private complainant thru her counsel, Atty. Remedios C. Balbin, filed a Motion to Resume Proceedings, dated June 25, 1997, (Rollo, pp. 238-244) praying therein that the RTC, Bian, Laguna, where this case was still pending, vacate its Order to Suspend Hearings, to enable it to act on all incidents including private Complainant's Affidavit of Desistance attached thereto. (Rollo, pp. 240-241) which affidavit of desistance is quoted hereunder as follows: xxx xxx xxx This Court, as the trier of facts, is tasked by the highest tribunal to find out if the private complainant, a minor "may have succumbed to some illicit influence and undue pressure, in order to prevent a possible miscarriage of justice." Evidently, the veiled threats and acceptance of the bribe money in allocated amounts which was subsequently raised to the irresistible amount of at least P20,000,000.00, compelled, impelled and/or tempted the private complainant her father Pablo Punongbayan and her mother Julie Y. Punongbayan, and her lawyer and private prosecutor Atty. Remedios C. Balbin, who did not appear in Court on November 7, 1997, despite notice, to execute the said "Affidavit of Desistance" which was the ultimate goal of the accused. It is very obvious that the private complainant a minor, "succumbed to some illicit influence and undue pressure," to borrow the language of the Honorable Supreme Court En Banc. It would be the height of extreme naivete or gullibility for any normal individual to conclude otherwise. The Court does not believe that the private complainant, her lawyer, and her parents charged but in exchange for a plea of guilty the charge is reduced to homicide and the accused is allowed to claim a number of mitigating circumstances. It is not uncommon for estafa, libel, physical injuries and even homicide cases to be dismissed because the complainant has lost interest or alleged that the complaint was filed as a result of a misunderstanding. A number of examples can be given and they can fill a book." Again, in People vs. Evangelista, L-45089, April 27, 1982, 113 SCRA 713, 720, the Supreme Court further declared: It may be noted that the crimes in question (forcible abduction with rape) are among those enumerated in Article 344 of the Revised Penal Code, which crimes cannot be prosecuted de officio. In other words, the crimes of abduction and rape are in the nature of private offense, inasmuch as the law has reposed "the right to institute such proceedings exclusively and successively in the offended person, her parents, grandparents or guardian" . . . Accordingly, if after filing the case at face at bar decided that she was unable to face the scandal of public trial, or, if for some private reason she preferred to suffer the outraged in silence, then, corollary to her right institute the proceedings, she should have been allowed to withdraw her complaint and desist from prosecuting the case (Emphasis supplied). Petitioner Concepcion did not submit any motion for reconsideration. Without waiting for the resolution of his motion for reconsideration, petitioner Alonte repaired to this Court. So did petitioner Concepcion. Without doubt, the petitions at bar raise two (2) fulcrum issues: (1) the correctness of the ruling of the respondent judge that the desistance of the complainant is not a ground to dismiss the rape charge against the petitioners, and (2) the invalidity of petitioners' conviction on the ground of denial of due process.

I agree with the learned disquisition of Mr. Justice Vitug that we should set aside the conviction of the petitioners for patent violation of their right to due process of law. I write this Separate Opinion to highlight the erroneousness of the shocking stance of the State Prosecutor that the rape charge should be dismissed in view of the desistance of the private complainant. But our ruling giving no effect on the affidavit of desistance should not based on the reason that it was procured by threat or intimidation or any payment of money as the respondent judge opined in his Decision. The respondent judge arrived at this conclusion on the basis of the affidavits of Atty. Balbin, the counsel of the private complainant. This is erroneous for Atty. Balbin was never called to the witness stand to testify on the truth of her affidavits. Her affidavits therefore are hearsay evidence and should not have been relied upon by the respondent judge. The affidavit of desistance cannot abort the rape charge against the petitioners on the simple ground that it did not state that the private complainant-affiant was not raped by petitioner Alonte. In truth, the private complainant affirmed her earlier Reply-Affidavit where she narrated in detail how petitioner Alonte raped her. Moreover, the rape charge has been filed in Court and it is not anymore the absolute privilege of the camplainant to desist from continuing with the case. This separate opinion unequivocably addresses the issue of whether the desistance of the victim can stop the further prosecution of the petitioners. I In Philippine jurisprudence, desistance has been equated with recantation or retraction. To "recant" means to "withdraw or repudiate formally and publicly;" 18 "to renounce or withdraw prior statement." 19 To "retract" means to "take back;" "to retract an offer is to withdraw it before acceptance." 20 A recantation usually applies to a complainant or witness, either for the prosecution or the defense, who has previously given an extra-judicial statement 21 or testimony in court. 22 Repudiation may be made in writing, i.e., by sworn statement, 23 or by testifying on the witness stand. 24 Mere retraction by a witness or by complainant of his or her testimony does not necessarily vitiate the original testimony or statement, if credible. 25 The general rule is that courts look with disfavor upon retractions of testimonies previously given in court. 26 This rule applies to crimes, 27 offenses 28 as well as to administrative offenses. 29 The reason is because affidavits of retraction can easily be secured from poor and ignorant witnesses, usually through intimidation or for monetary consideration. 30 Moreover, there is always the probability that they will later be repudiated 31 and there would never be an end to criminal litigation. 32 It would also be a dangerous rule for courts to reject testimonies solemnly taken before courts of justice simply because the witnesses who had given them later on changed their minds for one reason or another. This would make solemn trials a mockery and place the investigation of the truth at the mercy of unscrupulous witnesses. 33 The general rule notwithstanding, the affidavit should not be peremptorily dismissed as a useless scrap of paper. There are instances when a recantation may create serious doubts as to the guilt of the accused. 34 A retracted statement or testimony must be subject to scrupulous examination. The previous statement or testimony and the subsequent one must be carefully compared and the circumstances under which each was given and the reasons and motives for the change carefully scrutinized. The veracity of each statement or testimony must be tested by the credibility of the witness which is left for the judge to decide. 35 In short, only where there exists special circumstances in the case which when coupled with the retraction raise doubts as to the truth of the testimony or statement given, can a retraction be considered and upheld. 36 A survey of our jurisprudence reveals that the same rule has been applied to affidavits of desistance. 37 An affidavit of desistance is understood to be a sworn statement executed by a complainant in a criminal or administrative case that he or she is discontinuing the action filed upon his or her complaint for whatever reason he or she may cite. The court attaches no persuasive value to a desistance especially when executed as an afterthought. 38 However, a in retractions, an affidavit of desistance calls for a reexamination of the records of the case. 39 In private crimes, an affidavit of desistance filed by a private complainant is also frowned upon by the courts. Although such affidavit may deserve a second look at the case, there is hardly an instance when this Court upheld it in private crimes and dismissed the case on the sole basis thereof. Indeed, a case is

not dismissed upon mere affidavit of desistance of the complainant, particularly where there exist special circumstances that raise doubts as to the reliability of the affidavit. 40 Usually in private crimes, an affidavit of desistance is executed by the private complainant after pardoning and forgiving the offender. In this instance, the court treats the affidavit as an express pardon. 41 It does not ipso facto dismiss the case but determines the timeliness and validity thereof. Private crimes are crimes against chastity such as adultery and concubinage, seduction, abduction, rape and acts of lasciviousness. Their institution, prosecution and extinction are governed by Article 344 of the Revised Penal Code, viz: Art. 344. Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape and acts of lasciviousness. The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouse. The offended party cannot institute criminal prosecution without including both the guilty parties, if they are both alive, nor in any case, if he shall have consented or pardoned the offenders. The offenses of seduction, abduction, rape, acts of lasciviousness, shall not be prosecuted except upon a complaint filed by the offended party or her parents, grand parents, or guardian, nor in any case, the offender has been expressly pardoned by the above-named persons, as the case may be. In cases of seduction, abduction, acts of lasciviousness and rape, the marriage of the offender with the offended party shall extinguish the criminal action or remit the penalty already imposed upon him. The provisions of this paragraph shall also be applicable to the co-principals, accomplices and accessories after the fact of the above-mentioned crimes. Private crimes cannot be prosecuted except upon complaint filed by the offended party. In adultery and concubinage, the offended party must implead both the guilty parties and must not have consented or pardoned the offenders. In seduction, abduction, rape and acts of lasciviousness, the complaint must be filed by the offended party or her parents, grandparents or guardian. The complainant must not have expressly pardoned the offender. Article 344 also provides for the extinction of criminal liability in private crimes. It mentions two modes: pardon and marriage, which when validly and timely made, result in the total extinction of criminal liability of the offender. 42 The pardon in private crimes must be made before the institution of the criminal action. 43 In adultery and concubinage, the pardon may be express or implied while in seduction, abduction, rape and acts of lasciviousness, the pardon must be express. In all cases, the pardon must come prior to the institution of the criminal action. After the case has been filed in court, any pardon made by the private complainant, whether by sworn statement or on the witness stand, cannot extinguish criminal liability. The only act that extinguishes the penal action and the penalty that may have been imposed is the marriage between the offender and the offended party. 44 As this Court declared in the case of Donio-Teves v. Vamenta, Jr.: 45 The term "private crimes" in reference to felonies which cannot be prosecuted except upon complaint filed by the aggrieved party, is misleading. Far from what it implies, it is not only the aggrieved party who is offended in such crimes but also the State. Every violation of penal laws results in the disturbance of public order and safety which the State is committed to uphold and protect. If the law imposes the condition that private crimes like adultery shall not be prosecuted except upon complaint filed by the offended party, it is, as herein pointed earlier "out of consideration for the aggrieved party who might prefer to suffer the outrage in silence rather than go through the scandal of a public trial." Once a complaint is filed, the will of the offended party is ascertained and the action proceeds just as in any other crime. This is shown by the fact that after filing a complaint, any pardon given by the complainant to the offender would be unavailing. It is true, the institution of the action in so called the private crimes is at the option of the action of the aggrieved party. But it is equally true that once the choice is made manifest, the law will be applied in full force beyond the control of, and inspite of the complainant, his death notwithstanding.

The filing of a complaint in private crimes is merely a condition precedent to the exercise by the proper authorities of the power to prosecute the guilty parties. 46 It is the complaint that starts the prosecutory proceeding without which the fiscal and the court cannot exercise jurisdiction over the case. 47 Once the complaint is filed, the action proceeds just as in any other crime. We follow the postulate that a criminal offense is an outrage to the sovereign state 48 and the right of prosecution for a crime is one of the attributes of the sovereign power. 49 Thus, criminal actions are usually commenced by the State, through the People of the Philippines, and the offended party is merely a complaining witness. 50 In private crimes, however, or those which cannot be prosecuted de oficio, the offended party assumes a more predominant role since the right to commence the action or refrain therefrom, is a matter exclusively within his power and option. 51 The sovereign state deems it the wiser policy, in private crimes, to let the aggrieved party and her family decide whether to expose to public view the vices, faults and disgraceful acts occurring in the family. 52 But once the offended party files the complaint, her will is ascertained and the action proceeds just as in any other crime. The decision of the complainant to undergo the scandal of a public trial necessarily witness connotes the willingness to face the scandal. 53 The private complainant is deemed to have shed off her privacy and the crime ceases to be "private" and becomes "public." The State, through the fiscal, takes over the prosecution of the case and the victim's change of heart and mind will not affect the State's right to vindicate the outrage against the violation of its law. 54 This is the reason why pardon in crimes of chastity must come before the institution of the criminal action. Pardon by the offended party extinguishes criminal liability when made while the crime is still "private" and within the control of the offended party. But once the case is filed in court, the pardon cannot ipso facto operate to dismiss the case. After the institution of the criminal action, any pardon given by the complainant to the offender would be unavailing, 55 except of course when the offender validly marries the offended party. 56 The offended party's pardon of the offender in a seduction case after the criminal action had been instituted constitutes no bar to said action. 57 A pardon given in a rape case after the filing of the action in court "comes too late to hide the shameful occurrence from public notice." 58 Even the death of the offended party cannot extinguish the case once it is filed in court. 59 If the offended party dies immediately after filing the complaint but before the institution of the criminal action, his death is not a ground to dismiss the case. 60 Clearly, the will and participation of the offended party is necessary only to determine whether to file the complaint or not. Thereafter, the will of the State prevails. Article 344 does not include desistance of the offended party from prosecuting the case as a ground for extinction of criminal liability whether total 61 or partial. 62 Hence, only when the desistance is grounded on forgiveness and pardon and is made before the institution of the criminal action, can it extinguish criminal liability. Desistance, per se, is not equivalent to pardon. In the case at bar, the "Affidavit of Desistance" of Juvielyn is not an express pardon of the accused and the crime committed. Private complainant desisted from prosecuting the case against the petitioners because she wished "to start life anew and live normally again." She reiterated this reason on the witness stand. She complained that members of the media were bothering and harassing her and that she wanted to go back to her normal life. She never said that she forgave the petitioners. She did not absolve them from their culpability. She did not give any exculpatory fact that would raise doubts about her rape. She did not say that she consented to petitioner Alonte's acts. Moreover, the rape case is already in court and it is no longer her right to decide whether or not the charge should be continued. As we held in Crespo v. Mogul: 63 xxx xxx xxx The rule in this jurisdiction is that once a complaint or information is filed in court any disposition of the case as to its dismissal or conviction or acquittal of the accused rests in the sound discretion of the court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in court he cannot impose his opinion on the trial court. The court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the court who has the option to grant or deny the same. It does not matter if this is done before or after the

arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation. II The next issue is the validity of the conviction of petitioners. Petitioners contend that they were convicted without undergoing any trial. Respondent judge insists otherwise. He claims that petitioners submitted the case on the merits and relied principally on the Affidavit of Desistance. He recounts the events that took place before the presentation of private complainant as revealed by the transcripts of November 7, 1997, viz: Prosecutor Campomanes Your Honor, the complaining witness/private complainant Juvielyn Punongbayan is present here in Court, and a while ago, I was given a copy of her Affidavit of Desistance so I would like to present her in order to attest to the veracity of her Affidavit of Desistance, your Honor, and for the Court to her testimony. Court We will have a separate trial, this involved a heinous offense and that there is not even any plea-bargaining in this case. Prosecutor Campomanes Yes, your Honor, I understand that. Court So you have to mark now your documentary evidence in preparation for trial. Prosecutor Campomanes Yes, your Honor. Court There are many documentary evidence mentioned by the Supreme Court in its seven (7) page . . . (may I see the record) seven(7) page resolution, dated September 2, 1997, and that this case was assigned to this Court as the trial Judge. This Court has already arraigned the accused and he pleaded not guilty, and so the next step is pre-trial. The Order of the Supreme Court is to direct this Court not only to determine the voluntariness but also the validity of the Affidavit of Desistance mentioned by the Court which was also brought to the attention of the Supreme Court. Prosecutor Campomanes And to the Department of Justice likewise your Honor. Court And that's why the Supreme Court instead of resolving it sent the records to this Court to determine the voluntariness and the validity of the Desistance, but they must be determined after trial on the merits. Prosecutor Campomanes

Your Honor please, representing the people. Its events now will prove that there is no more need for the prosecution to go on trial of this case, considering that the private complainant herself had already furnished the Department of Justice a copy of her Affidavit of Desistance. Court What does it say there? Prosecutor Campomanes That she is no longer interested in further prosecuting this case, and that she is now desisting in going to full blown trial, and considering your Honor further, that this is a private offense, then, the Department of Justice feels that it can not be more popish than the Pope. Court That is the stand of the Department of Justice. But the Supreme Court belongs to a different Department, I am governed by the Supreme Court, because I am a Judge, I am not from the Department of Justice. Prosecutor Campomanes We are all aware your Honor, that we will just be prolonging the agony, in fairness to everybody, considering that we are representing the people, but we are not representing only . . . the Department of Justice is not only representing the complainant in this case but we are also for justice to be rendered to the respondent as well. Court I am rendering fair justice to everyone. That is the sense of this Court. That is the perception of this Court with respect to the Supreme Court resolution, in the first place, that Affidavit does not negate the commission of the crime. You want us to dismiss this case when the Affidavit does not negate the commission of the crime? Prosecutor Campomanes That's why we will be presenting her in Open Court, your Honor. Court Just to affirm that? Prosecutor Campomanes No to prove . . . Court What happened . . . how about the Prosecution Department, they have control of the prosecution, and the offended party herself, has not negated the commission of the crime, is there anything there to show that she did not . . . that the accused . . . did not commit the crime charged? Prosecutor Campomanes That's why we will be presenting her in Open Court, whatever is not here will be clarified.

Court So, we will go to a trial on the merits you present that affidavit, that's a part of your evidence. Prosecutor Campomanes The people is ready to present that . . . the complaining witness. Court We will have a trial on the merits. Prosecutor Campomanes Your Honor please, being a woman, I have extensively discussed this matter with the complaining witness and she intimated to this representation that she can not bear another day of coming here, with all these people staring at her with everybody looking at her as if she is something . . . . Court On December 13, 1996, petitioner Punongbayan through private counsel, Atty. Remedios C. Balbin and the Assistant State Prosecutor Guiab, Jr. who is not here both were relieved and changed with a new lady prosecutor, prayed that the case be tried by the Regional Trial Court of Manila, they cited the following grounds: "THE GREAT DANGER TO THE LIVES OF BOTH PRIVATE COMPLAINANT AND THE IMMEDIATE MEMBERS OF HER FAMILY AND THEIR WITNESSES AS THEY OPENLY IDENTIFIED THE PRINCIPAL ACCUSED MAYOR ALONTE WHO IS ACKNOWLEDGED AS A POWERFUL POLITICAL FIGURE AND ALMOST AN INSTITUTION IN BIAN LAGUNA AND [THE] GREAT DANGERS TO THE LIVES OF WITNESSES WHO OTHERWISE WISH TO COME OUT IN THE OPEN AND TESTIFY ON THE MORAL AND CRIMINAL ACTIVITIES OF BOTH ACCUSED PERPETRATED UPON VERY YOUNG GIRLS STUDENTS OF BIAN LAGUNA THAT WILL NOT DO SO IN THE TERMS OF THE ACCUSED MAYOR" that is why it was the prayer of the offended party and the Supreme Court granted the Motion for Change of Venue, and we are now on a new venue, where the danger to the lives of the witness is no longer present, on January 7, 1997, Alonte filed an Opposition thereto, and on April 23, 1997, the petitioner, the offended party through the Honorable Secretary of Justice Teofisto Guingona and Chief State Prosecutor Jovencito Zuno filed a Manifestation and Motion for Resolution of the Petition For Change of Venue. Attached to the motion of the Honorable Secretary of Justice Guingona and Chief State Prosecutor Jovencito Zuno were the affidavits of the petitioner, her lawyer, Atty. Remedios Balbin, Dolores Yambao, Bienvenido Salandanan and Evelyn Celso with their contention that the prosecution witnesses and the private counsel of petitioner are exposed to kidnapping, harassment, grave threats and tempting offers of bribe money, that was the stand of your department . . . And then later on June 28, 1997 . . . we have to review this case because this involves public interest . . . on June 23, 1997, Atty. Casano in behalf of the oppositors, two (2) oppositors, filed a motion to dismiss the petition for change of venue in the Supreme Court on the ground that it has become moot, he alleges that the petitioner despite the motion to resume the proceedings in criminal case no. 96-19-B in said motion, the petitioner informed the Court that she is desisting . . . informed the Supreme Court that she is desisting from proceeding with the case, it is the same affidavit she prayed that the trial Court, on her affidavit of desistance . . . Atty. Casano also submitted to this Court, to the Supreme Court the manifestation of the petitioner joining the oppositors' prayer to dismiss her petition to a change of venue, the manifestation was also signed by Atty. Remedios Balbin as private prosecutor, the Supreme Court required Assistant Chief State Prosecutor Leonardo Guiab to comment on the motion to dismiss filed by Atty. Casano which involve the same affidavit that you have just read. On August 22, 1997, assistant Chief State Prosecutor Guiab filed his comment, he alleged that he is not aware of the desistance of the petitioner in criminal case no. 96-19-B, and in said desistance there is two (2) legal effect, [that] the public prosecutor

has the control and direction of the prosecution in criminal action, he prayed for the denial of the Motion to Dismiss and reiterated his petition for change of venue, the Supreme Court granted the change of venue and in granting the change of venue the highest tribunal which we are all subordinates, says: for the record, in their manifestation and motion for the resolution of petition to a change of venue the Secretary of Justice and Chief State Prosecutor submitted various affidavits in support of their allegations that prosecution witnesses and private legal counsel are exposed to KIDNAPPING, HARASSMENT, GRAVE THREATS, AND TEMPTING OFFERS OF BRIBE MONEY all intended to extract an affidavit of desistance from the complainant, this is now the affidavit of desistance in her affidavit dated December 16, 1996, the petitioner the offended party, the herein offended party Juvielyn Punongbayan alleged etc . . . etc . . . in support of her petition and then she alleged that during the last week of Feb. 1997, she was visited by one Lourdes Salaysay, she stated that Mrs. Salaysay told her that Mrs. Alonte, wife of Mayor Alonte requested her to settle Alonte's case, she was informed that Mrs. Alonte was offering P10,000,000.00, will send her to school and give her house and send her parents abroad, Atty. Remedios C. Balbin is not here now, I am just quoting the Supreme Court counsel, private counsel of petitioner also executed an affidavit dated February 1997, quote: the Supreme Court quote to them: to put on record the attempting, influence, directly, in exchange of valuable consideration, that the Rape charge against Mayor Bayani Arthur Alone, she alleged that in two (2) occasions Atty. Romero conveyed to me the message of Mayor Alonte, namely: to drop the rape case against him and that he would give a consideration of P10,000,000.00 to be apportioned as follows: P5,000.00, for the private complainant, your client and the prosecutor P3,000,000.00 for me, as private prosecutor, that is what Atty. Balbin said, P4,000,000.00 for her, the mediator, so there seems to be a liberal flow of blood money, that is why the Supreme Court ordered the Court to determine the validity, and there is another, dated March 19, 1997. I have to remind everybody about what happened, this thing did not come from me, I am not fabricating anything this comes from the highest tribunal jurat, to whom I am responsible another affidavit of Atty. Balbin, she narrated the continuing attempts to bribe her and threatened her, so there were continuing events, they alleged, the People's Bureau, Office of the Mayor of Quezon City, extensively discuss the squatting case with against his client, that after a brief exchange on the status of the case, they confided to me his real purpose, that it started of by saying he was the legal counsel of the gambling lords of Malabon for which he get a monthly retainer of P15,000.00 exclusive of transportation expenses, but he also stated that he knows all the network of the gambling lord throughout the country, which is quite strong and unified, that I then ask him "what do you mean?" "Is Alonte into gambling too, that he is part of the network you speak of?", that Atty. Daga did not reply, but instead said, they are prepared to double the offer made to by Atty. Romero which was published in the newspaper at P10,000,000.00, so, its double, double your money, so its P20,000,000.00, that I told him, its Atty. Balbin, that all the money in the world, all the money in the world will not make me change my position against my client executing a desistance and that Alonte's voluntary surrender plea of guilty to rape, conviction, and the imposition of the corresponding penalty will satisfy the ends of justice, but I told him, that my client's case is not isolated, there being five (5) other miners similarly place and Alonte's will be stopped from doing more harm that Atty. Daga, then told me in Filipino if you do not accede to a desistance, then they will be force to but because he did not [complete] the sentence I asked him directly, what do you mean, what do you intend to do, and he replied, go on with the case, [buy] the judge, [buy] the judge, that I am believing, and I reacted saying, but they have already done so, Judge Francisco Binan, Judge Francisco Binan suddenly change his attitude towards the prosecution, perhaps you are referring to the next judge when the petition for change of venue is finally granted that Atty. Daga did not reply, and he reiterated that his principal referring to them again as gambling lords, wanted desistance, after which he excused himself and left, that I execute this affidavit, as Atty. Balbin attests to the truth of the incident with Atty. Dionisio Daga which occurred in the afternoon of March 6, 1997 at my office, stating . . . (JUDGE READING THE RECORDS OF THE CASE) Court Then, the Supreme Court said, these affidavits, the one attached gave specific names, dates and methods . . . a coercion of corruption, the prosecution of Criminal Case No. 96-19-B (JUDGE CONTINUED READING THE RECORDS OF THE CASE) that is desisting for pursuing her

complaint for Rape petitioner a minor, they have . . . illicit, influence and due pressure to prevent . . . Criminal Case No. 96-19-B to any of its Branch, just to call the Criminal Case No. 96-19-B shall be raffled, shall result the petitioner's motion, to resume proceedings filed in Branch 26 in the RTC of Laguna, to determine the voluntariness and validity of the petitioner's desistance in the light of the position of the public prosecutor, Assistant Chief Prosecutor Leonardo Guiab . . . I don't know what will be the outcome . . . you may contend that because of that affidavit of the desistance there is reasonable doubt . . . etc . . . but still, that will be placing the cart before the horse . . . you have to go a regular trial on the merits . . . because this is a heinous offense which cannot . . . and during the pretrial cannot be subject to a plea-bargaining, and with respect to its new law which took effect in 1993, that is a new one, it was placed to the category of a heinous offense . . . Prosecutor Campomanes So we go on trial your Honor, and we will present the complaining witness, and let the Court decide on the basis of the complainants testimony . . . private complainant's testimony, before this Honorable Court . . . xxx xxx xxx Prosecutor Campomanes That's why we are presenting the private complainant, the principal witness, the mother who is also a signatory to this affidavit of desistance, everybody who have been a part and participant in the making and preparation of this affidavit of desistance, they have already signed these affidavit of desistance. Court And we also have the affidavits mentioned by the Supreme Court, because I was . . . all of those documents in the determination of whether that affidavit is valid. Prosecutor Campomanes Yes, your Honor. Court We . . . the Court cannot close his eyes to the other affidavits . . . because . . . that's why precisely the Supreme Court ordered me to hear this case. Prosecutor Campomanes We understand that your Honor. Court There are may conflicting matters to be solve . . . conflicting matters to be tackled in this case. Prosecutor Campomanes May we present the private complainant, your Honor . . . . 64 The records show that the hearing of November 7, 1997 was set for arraignment of the petitioners. 65 After the counsels made their respective appearances, Prosecutor Campomanes presented her authority to appear as prosecutor in lieu of Asst. Chief State Prosecutor Guiyab, Jr. Both petitioners pleaded not guilty to the charge. Respondent judge then set the case for pretrial which the parties, however, waived. The

proceedings continued and Prosecutor Campomanes manifested there was no need for the prosecution to go to trial in view of the Affidavit of Desistance of the private complainant. Respondent judge, however, observed that private complainant did not negate the commission of the crime in her Affidavit of Desistance. Respondent judge expressed his misgivings on the validity of the Affidavit of Desistance because of the September 2, 1997 Resolution of this Court citing affidavits where allegations of bribery were made to extract said affidavit from complainant. Prosecutor Campomanes then offered to present the private complainant to attest to the voluntariness and veracity of her Affidavit of Desistance. Respondent judge averred whether the court should proceed to a trial on the merits. Prosecutor Campomanes declared that they could go on trial and let the court decide the merits of the case on the basis of the testimony of private complainant and the other witnesses. It was then that private complainant was presented as a witness. From the garbled transcripts of the hearing on November 7, 1997, it is not clear what both respondent judge and the public prosecutor intended the proceedings to be. Respondent judge repeatedly declared that the proceedings before him was to be a trial on the merits. The public prosecutor agreed to go to trial, but at the same time moved to present private complainant and her witnesses to testify on the voluntariness of her Affidavit of Desistance. Respondent judge and the public prosecutor were, obviously, not tuned in to each other. I agree with the majority that the November 7, 1997 proceedings could not have been a trial on the merits. First of all, the proceedings did not conform with the procedure for trial as provided in the 1985 Rules on Criminal Procedure. Section 3 of Rule 119 provides: Sec. 3. Order of Trial. The trial shall proceed in the following order: (a) The prosecution shall present evidence to prove the charge and, in the proper case, the civil liability. (b) The accused may present evidence to prove his defense, and damages, if any, arising from the issuance of any provisional remedy in the case. (c) The parties may then respectively present rebutting evidence only, unless the court, in furtherance of justice, permits them present additional evidence bearing upon the main issue. (d) Upon admission of the evidence, the case shall be deemed submitted for decision unless the court directs the parties to argue orally or to submit memoranda. (e) However, when the accused admits the act charged or omission charged in the complaint or information but interposes lawful defense, the order of trial may be modified accordingly. In the case at bar, petitioners were never instructed to present evidence to prove their defenses. The parties were never given the opportunity to present their respective evidence rebutting the testimony of private complainant. There was no admission by petitioners of the charge in the information as to justify a change in the order of trial. 66 Our criminal rules of procedure strictly provide the step by step procedure to be followed by courts in cases punishable by death. 67 This rule also applies to all other criminal cases, particularly where the imposable penalty is reclusion perpetua. The reason for this is to assure that the State makes no mistake in taking life and liberty except that of the guilty. 68 Thus: Judges should be reminded that each step in the trial process serves a specific purpose. In the trial of criminal cases, the constitutional presumption of innocence in favor of the accused requires that an accused be given sufficient opportunity to present his defense. So with the prosecution as to its evidence. Hence, any deviation from the regular course of trial should always take into consideration the rights of all the parties to the case, whether the prosecution or defense. 69 Second, the admission of private complainant's affidavit of October 21, 1996 was made solely in response to respondent judge's own questioning. 70 It was this affidavit which respondent judge used to convict the petitioners. This affidavit, however, was not marked nor was it formally offered before the court. The

Revised rules on Evidence clearly and expressly provide that "[t]he court shall consider no evidence which has not been formally offered." 71 Evidence not formally offered in court will not be taken into consideration by the court in disposing of the issues of the case. Any evidence which a party desires to submit for the consideration of the court must formally be offered by him, 72 otherwise it is excluded and rejected. 73 Third, where there is a doubt as to the nature of the criminal proceedings before the court, this doubt must be resolved in favor of the accused who must be given the widest latitude of action to prove his innocence. 74 It is in petitioners' favor that the proceedings of November 7, 1997 be treated as a hearing on the motion to dismiss, not a trial on the merits. To rule otherwise will effectively deny petitioners due process and all the other rights of an accused under the Bill of Rights and our Rules in Criminal Procedure. Indeed, following respondent judge's finding and assuming that the November 7, 1997 hearing was already a trial on the merits, petitioners were never afforded their right to confront and cross-examine the witness. The court did not, at the very least, inquire as to whether the petitioners wanted to cross-examine private complainant with respect to her affidavit of October 21, 1996. No opportunity to cross-examine was afforded petitioners and their counsels such that they cannot be deemed to have waived said right by inaction. 75 Regalado, Davide, Jr., Romero, Bellosillo, Mendoza and Panganiban, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 104961 October 7, 1994 CONGRESSMAN FRANCISCO B. ANIAG, JR., petitioner, vs. COMMISSION ON ELECTIONS and DEPARTMENT OF JUSTICE SPECIAL TASK FORCE, respondents. Ronolfo S. Pasamba for petitioner.

BELLOSILLO, JR., J.: PETITIONER assails in this petition (for declaratory relief, certiorari and prohibition) the following resolutions of the Commission on Elections: Resolution No. 2327 dated 26 December 1991 for being unconstitutional, and Resolution No. 92-0829 dated 6 April 1992 and Resolution No. 92-0999 dated 23 April 1992, for want of legal and factual bases. The factual backdrop: In preparation for the synchronized national and local elections scheduled on 11 May 1992, the Commission on Elections (COMELEC) issued on 11 December 1991 Resolution No. 2323 otherwise referred to as the "Gun Ban," promulgating rules and regulations on bearing, carrying and transporting of firearms or other deadly weapons, on security personnel or bodyguards, on bearing arms by members of security agencies or police organizations, and organization or maintenance of reaction forces during the election period. 1 Subsequently, on 26 December 1991 COMELEC issued Resolution No. 2327 providing for the summary disqualification of candidates engaged in gunrunning, using and transporting of firearms, organizing special strike forces, and establishing spot checkpoints. 2 On 10 January 1992, pursuant to the "Gun Ban," Mr. Serapio P. Taccad, Sergeant-at-Arms, House of Representatives, wrote petitioner who was then Congressman of the 1st District of Bulacan requesting the return of the two (2) firearms 3 issued to him by the House of Representatives. Upon being advised of the request on 13 January 1992 by his staff, petitioner immediately instructed his driver, Ernesto Arellano, to pick up the firearms from petitioner's house at Valle Verde and return them to Congress. Meanwhile, at about five o'clock in the afternoon of the same day, the Philippine National Police (PNP) headed by Senior Superintendent Danilo Cordero set up a checkpoint outside the Batasan Complex some twenty (20) meters away from its entrance. About thirty minutes later, the policemen manning the outpost flagged down the car driven by Arellano as it approached the checkpoint. They searched the car and found the firearms neatly packed in their gun cases and placed in a bag in the trunk of the car. Arellano was then apprehended and detained. He explained that he was ordered by petitioner to get the firearms from the house and return them to Sergeant-at-Arms Taccad of the House of Representatives. Thereafter, the police referred Arellano's case to the Office of the City Prosecutor for inquest. The referral did not include petitioner as among those charged with an election offense. On 15 January 1992, the City Prosecutor ordered the release of Arellano after finding the latter's sworn explanation meritorious. 4 On 28 January 1992, the City Prosecutor invited petitioner to shed light on the circumstances mentioned in Arellano's sworn explanation. Petitioner not only appeared at the preliminary investigation to confirm Arellano's statement but also wrote the City Prosecutor urging him to exonerate Arellano. He explained that Arellano did not violate the firearms ban as he in fact was complying with it when apprehended by

returning the firearms to Congress; and, that he was petitioner's driver, not a security officer nor a bodyguard. 5 On 6 March 1992, the Office of the City Prosecutor issued a resolution which, among other matters, recommended that the case against Arellano be dismissed and that the "unofficial" charge against petitioner be also dismissed. 6 Nevertheless, on 6 April 1992, upon recommendation of its Law Department, COMELEC issued Resolution No. 92-0829 directing the filing of information against petitioner and Arellano for violation of Sec. 261, par. (q), of B.P. Blg. 881 otherwise known as the Omnibus Election Code, in relation to Sec. 32 of R.A. No. 7166; 7 and petitioner to show cause why he should not be disqualified from running for an elective position, pursuant to COMELEC Resolution No. 2327, in relation to Sec. 32, 33 and 35 of R.A. 7166, and Sec. 52, par. (c), of B.P. Blg. 881. 8 On 13 April 1992, petitioner moved for reconsideration and to hold in abeyance the administrative proceedings as well as the filing of the information in court. 9 On 23 April 1992, the COMELEC denied petitioner's motion for reconsideration. 10 Hence, this recourse. Petitioner questions the constitutionality of Resolution No. 2327. He argues that the rules and regulations of an administrative body must respect the limits defined by law; that the Omnibus Election Code provides for the disqualification of any person/candidate from running for or holding a public office, i.e., any person who has either been declared by competent authority as insane or incompetent or has been sentenced by final judgment for subversion, insurrection, rebellion or for any offense for which he has been sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude; that gunrunning, using or transporting firearms or similar weapons and other acts mentioned in the resolution are not within the letter or spirit of the provisions of the Code; that the resolution did away with the requirement of final conviction before the commission of certain offenses; that instead, it created a presumption of guilt as a candidate may be disqualified from office in situations (a) where the criminal charge is still pending, (b) where there is no pending criminal case, and (c) where the accused has already been acquitted, all contrary to the requisite quantum of proof for one to be disqualified from running or holding public office under the Omnibus Election Code, i.e., proof beyond reasonable doubt. As a result, petitioner concludes, Resolution No. 2327 violates the fundamental law thus rendering it fatally defective. But, the issue on the disqualification of petitioner from running in the 11 May 1992 synchronized elections was rendered moot when he lost his bid for a seat in Congress in the elections that ensued. Consequently, it is now futile to discuss the implications of the charge against him on his qualification to run for public office. However, there still remains an important question to be resolved, i.e., whether he can be validly prosecuted for instructing his driver to return to the Sergeant-at-Arms of the House of Representatives the two firearms issued to him on the basis of the evidence gathered from the warrantless search of his car. Petitioner strongly protests against the manner by which the PNP conducted the search. According to him, without a warrant and without informing the driver of his fundamental rights the policemen searched his car. The firearms were not tucked in the waist nor within the immediate reach of Arellano but were neatly packed in their gun cases and wrapped in a bag kept in the trunk of the car. Thus, the search of his car that yielded the evidence for the prosecution was clearly violative of Secs. 2 and 3, par. (2), Art. III, of the Constitution. 11 Petitioner further maintains that he was neither impleaded as party respondent in the preliminary investigation before the Office of the City Prosecutor nor included in the charge sheet. Consequently, making him a respondent in the criminal information would violate his constitutional right to due process. Petitioner disputes the charge that he violated Sec. 33 of R.A. 7166, which prohibits any candidate for public office during the election period from employing or availing himself or engaging the services of security personnel or bodyguards since, admittedly, Arellano was not a security officer or bodyguard but a civilian employee assigned to him as driver by the House of Representatives. Specifically, petitioner further argues, Arellano was instructed to return to Congress, as he did, the firearms in compliance with the directive of its Sergeant-at-Arms pursuant to the "Gun Ban," thus, no law was in fact violated. 12

On 25 June 1992, we required COMELEC to file its own comment on the petition 13 upon manifestation of the Solicitor General that it could not take the position of COMELEC and prayed instead to be excused from filing the required comment. 14 COMELEC claims that petitioner is charged with violation of Sec. 261, par. (q), in relation to Sec. 263, of B.P. Blg. 881 which provides that "the principals, accomplices and accessories, as defined in the Revised Penal Code, shall be criminally liable for election offenses." It points out that it was upon petitioner's instruction that Arellano brought the firearms in question outside petitioner's residence, submitting that his right to be heard was not violated as he was invited by the City Prosecutor to explain the circumstances regarding Arellano's possession of the firearms. Petitioner also filed a sworn written explanation about the incident. Finally, COMELEC claims that violation of the "Gun Ban" is mala prohibita, hence, the intention of the offender is immaterial. 15 Be that as it may, we find no need to delve into the alleged constitutional infirmity of Resolution No. 2327 since this petition may be resolved without passing upon this particular issue. 16 As a rule, a valid search must be authorized by a search warrant duly issued by an appropriate authority. However, this is not absolute. Aside from a search incident to a lawful arrest, a warrantless search had been upheld in cases of moving vehicles and the seizure of evidence in plain view, 17 as well as the search conducted at police or military checkpoints which we declared are not illegal per se, and stressed that the warrantless search is not violative of the Constitution for as long as the vehicle is neither searched nor its occupants subjected to a body search, and the inspection of the vehicle is merely limited to a visual search. 18 Petitioner contends that the guns were not tucked in Arellano's waist nor placed within his reach, and that they were neatly packed in gun cases and placed inside a bag at the back of the car. Significantly, COMELEC did not rebut this claim. The records do not show that the manner by which the package was bundled led the PNP to suspect that it contained firearms. There was no mention either of any report regarding any nervous, suspicious or unnatural reaction from Arellano when the car was stopped and searched. Given these circumstances and relying on its visual observation, the PNP could not thoroughly search the car lawfully as well as the package without violating the constitutional injunction. An extensive search without warrant could only be resorted to if the officers conducting the search had reasonable or probable cause to believe before the search that either the motorist was a law offender or that they would find the instrumentality or evidence pertaining to the commission of a crime in the vehicle to be searched. 19 The existence of probable cause justifying the warrantless search is determined by the facts of each case. 20 Thus, we upheld the validity of the warrantless search in situations where the smell of marijuana emanated from a plastic bag owned by the accused, or where the accused was acting suspiciously, and attempted to flee. 21 We also recognize the stop-and-search without warrant conducted by police officers on the basis of prior confidential information which were reasonably corroborated by other attendant matters, e.g., where a confidential report that a sizeable volume of marijuana would be transported along the route where the search was conducted and appellants were caught in flagrante delicto transporting drugs at the time of their arrest; 22 where apart from the intelligence information, there were reports by an undercover "deep penetration" agent that appellants were bringing prohibited drugs into the country; 23 where the information that a Caucasian coming from Sagada bringing prohibited drugs was strengthened by the conspicuous bulge in accused's waistline, and his suspicious failure to produce his passport and other identification papers; 24 where the physical appearance of the accused fitted the description given in the confidential information about a woman transporting marijuana; 25 where the accused carrying a bulging black leather bag were suspiciously quiet and nervous when queried about its contents; 26 or where the identity of the drug courier was already established by police authorities who received confidential information about the probable arrival of accused on board one of the vessels arriving in Dumaguete City.
27

In the case at bench, we find that the checkpoint was set up twenty (20) meters from the entrance to the Batasan Complex to enforce Resolution No. 2327. There was no evidence to show that the policemen were impelled to do so because of a confidential report leading them to reasonably believe that certain motorists matching the description furnished by their informant were engaged in gunrunning, transporting firearms or in organizing special

strike forces. Nor, as adverted to earlier, was there any indication from the package or behavior of Arellano that could have triggered the suspicion of the policemen. Absent such justifying circumstances specifically pointing to the culpability of petitioner and Arellano, the search could not be valid. The action then of the policemen unreasonably intruded into petitioner's privacy and the security of his property, in violation of Sec. 2, Art. III, of the Constitution. Consequently, the firearms obtained in violation of petitioner's right against warrantless search cannot be admitted for any purpose in any proceeding. It may be argued that the seeming acquiescence of Arellano to the search constitutes an implied waiver of petitioner's right to question the reasonableness of the search of the vehicle and the seizure of the firearms. While Resolution No. 2327 authorized the setting up of checkpoints, it however stressed that "guidelines shall be made to ensure that no infringement of civil and political rights results from the implementation of this authority," and that "the places and manner of setting up of checkpoints shall be determined in consultation with the Committee on Firearms Ban and Security Personnel created under Sec. 5, Resolution No. 2323." 28 The facts show that PNP installed the checkpoint at about five o'clock in the afternoon of 13 January 1992. The search was made soon thereafter, or thirty minutes later. It was not shown that news of impending checkpoints without necessarily giving their locations, and the reason for the same have been announced in the media to forewarn the citizens. Nor did the informal checkpoint that afternoon carry signs informing the public of the purpose of its operation. As a result, motorists passing that place did not have any inkling whatsoever about the reason behind the instant exercise. With the authorities in control to stop and search passing vehicles, the motorists did not have any choice but to submit to the PNP's scrutiny. Otherwise, any attempt to turnabout albeit innocent would raise suspicion and provide probable cause for the police to arrest the motorist and to conduct an extensive search of his vehicle. In the case of petitioner, only his driver was at the car at that time it was stopped for inspection. As conceded by COMELEC, driver Arellano did not know the purpose of the checkpoint. In the face of fourteen (14) armed policemen conducting the operation, 29 driver Arellano being alone and a mere employee of petitioner could not have marshalled the strength and the courage to protest against the extensive search conducted in the vehicle. In such scenario, the "implied acquiescence," if there was any, could not be more than a mere passive conformity on Arellano's part to the search, and "consent" given under intimidating or coercive circumstances is no consent within the purview of the constitutional guaranty. Moreover, the manner by which COMELEC proceeded against petitioner runs counter to the due process clause of the Constitution. The facts show that petitioner was not among those charged by the PNP with violation of the Omnibus Election Code. Nor was he subjected by the City Prosecutor to a preliminary investigation for such offense. The non-disclosure by the City Prosecutor to the petitioner that he was a respondent in the preliminary investigation is violative of due process which requires that the procedure established by law should be obeyed. 30 COMELEC argues that petitioner was given the change to be heard because he was invited to enlighten the City Prosecutor regarding the circumstances leading to the arrest of his driver, and that petitioner in fact submitted a sworn letter of explanation regarding the incident. This does not satisfy the requirement of due process the essence of which is the reasonable opportunity to be heard and to submit any evidence one may have in support of his defense. 31 Due process guarantees the observance of both substantive and procedural rights, whatever the source of such rights, be it the Constitution itself or only a statute or a rule of court. 32 In Go v. Court of Appeals, 33 we held that While the right to preliminary investigation is statutory rather than constitutional in its fundament, since it has in fact been established by statute, it is a component part of due process in criminal justice. The right to have a preliminary investigation conducted before being bound over to trial for a criminal offense and hence formally at risk of incarceration or some other penalty is not a mere formal or technical right; it is a substantive right . . . . [T]he right to an opportunity to avoid a process painful to anyone save, perhaps, to hardened criminals is a valuable right. To deny petitioner's claim to a preliminary investigation would be to deprive him of the full measure of his right to due process. Apparently, petitioner was merely invited during the preliminary investigation of Arellano to corroborate the latter's explanation. Petitioner then was made to believe that he was not a party respondent in the

case, so that his written explanation on the incident was only intended to exculpate Arellano, not petitioner himself. Hence, it cannot be seriously contended that petitioner was fully given the opportunity to meet the accusation against him as he was not apprised that he was himself a respondent when he appeared before the City Prosecutor. Finally, it must be pointed out too that petitioner's filing of a motion for reconsideration with COMELEC cannot be considered as a waiver of his claim to a separate preliminary investigation for himself. The motion itself expresses petitioner's vigorous insistence on his right. Petitioner's protestation started as soon as he learned of his inclusion in the charge, and did not ease up even after COMELEC's denial of his motion for reconsideration. This is understandably so since the prohibition against carrying firearms bears the penalty of imprisonment of not less than one (1) year nor more than six (6) years without probation and with disqualification from holding public office, and deprivation of the right to suffrage. Against such strong stance, petitioner clearly did not waive his right to a preliminary investigation. WHEREFORE, the instant petition is GRANTED. The warrantless search conducted by the Philippine National Police on 13 January 1992 is declared illegal and the firearms seized during the warrantless search cannot be used as evidence in any proceeding against petitioner. Consequently, COMELEC Resolution No. 92-0829 dated 6 April 1992 being violative of the Constitution is SET ASIDE. The temporary restraining order we issued on 5 May 1992 is made permanent. SO ORDERED. Narvasa, C.J., Romero, Quiason, Puno, Kapunan and Mendoza, JJ., concur. Feliciano, Padilla and Bidin, JJ., are on leave.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 84818 December 18, 1989 PHILIPPINE COMMUNICATIONS SATELLITE CORPORATION, petitioner, vs. JOSE LUIS A. ALCUAZ, as NTC Commissioner, and NATIONAL TELECOMMUNICATIONS COMMISSION, respondents. Rilloraza, Africa, De Ocampo & Africa for petitioner. Victor de la Serna for respondent Alcuaz.

REGALADO, J.: This case is posed as one of first impression in the sense that it involves the public utility services of the petitioner Philippine Communications Satellite Corporation (PHILCOMSAT, for short) which is the only one rendering such services in the Philippines. The petition before us seeks to annul and set aside an Order 1 issued by respondent Commissioner Jose Luis Alcuaz of the National Telecommunications Commission (hereafter, NTC), dated September 2, 1988, which directs the provisional reduction of the rates which may be charged by petitioner for certain specified lines of its services by fifteen percent (15%) with the reservation to make further reductions later, for being violative of the constitutional prohibition against undue delegation of legislative power and a denial of procedural, as well as substantive, due process of law. The antecedental facts as summarized by petitioner 2 are not in dispute. By virtue of Republic Act No. 5514, PHILCOMSAT was granted "a franchise to establish, construct, maintain and operate in the Philippines, at such places as the grantee may select, station or stations and associated equipment and facilities for international satellite communications." Under this franchise, it was likewise granted the authority to "construct and operate such ground facilities as needed to deliver telecommunications services from the communications satellite system and ground terminal or terminals." Pursuant to said franchise, petitioner puts on record that it undertook the following activities and established the following installations: 1. In 1967, PHILCOMSAT established its provisional earth station in Pinugay, Rizal. 2. In 1968, earth station standard "A" antenna (Pinugay I) was established. Pinugay I provided direct satellite communication links with the Pacific Ocean Region (the United States, Australia, Canada, Hawaii, Guam, Korea, Thailand, China [PROC], New Zealand and Brunei) thru the Pacific Ocean INTELSAT satellite. 3. In 1971, a second earth station standard "A" antenna(Pinugay III) was established. Pinugay II provided links with the Indian Ocean Region (major cities in Europe, Middle East, Africa, and other Asia Pacific countries operating within the region) thru the Indian Ocean INTELSAT satellite. 4. In 1983, a third earth station standard "B" antenna (Pinugay III) was established to temporarily assume the functions of Pinugay I and then Pinugay II while they were being refurbished. Pinugay III now serves as spare or reserved antenna for possible contingencies.

5. In 1983, PHILCOMSAT constructed and installed a standard "B" antenna at Clark Air Field, Pampanga as a television receive-only earth station which provides the U.S. Military bases with a 24-hour television service. 6. In 1989, petitioner completed the installation of a third standard "A" earth station (Pinugay IV) to take over the links in Pinugay I due to obsolescence. 3 By designation of the Republic of the Philippines, the petitioner is also the sole signatory for the Philippines in the Agreement and the Operating Agreement relating to the International Telecommunications Satellite Organization (INTELSAT) of 115 member nations, as well as in the Convention and the Operating Agreement of the International Maritime Satellite Organization (INMARSAT) of 53 member nations, which two global commercial telecommunications satellite corporations were collectively established by various states in line with the principles set forth in Resolution 1721 (XVI) of the General Assembly of the United Nations. Since 1968, the petitioner has been leasing its satellite circuits to: 1. Philippine Long Distance Telephone Company; 2. Philippine Global Communications, Inc.; 3. Eastern Telecommunications Phils., Inc.; 4. Globe Mackay Cable and Radio Corp. ITT; and 5. Capitol Wireless, Inc. or their predecessors-in-interest. The satellite services thus provided by petitioner enable said international carriers to serve the public with indispensable communication services, such as overseas telephone, telex, facsimile, telegrams, high speed data, live television in full color, and television standard conversion from European to American or vice versa. Under Section 5 of Republic Act No. 5514, petitioner was exempt from the jurisdiction of the then Public Service Commission, now respondent NTC. However, pursuant to Executive Order No. 196 issued on June 17, 1987, petitioner was placed under the jurisdiction, control and regulation of respondent NTC, including all its facilities and services and the fixing of rates. Implementing said Executive Order No. 196, respondents required petitioner to apply for the requisite certificate of public convenience and necessity covering its facilities and the services it renders, as well as the corresponding authority to charge rates therefor. Consequently, under date of September 9, 1987, petitioner filed with respondent NTC an application 4 for authority to continue operating and maintaining the same facilities it has been continuously operating and maintaining since 1967, to continue providing the international satellite communications services it has likewise been providing since 1967, and to charge the current rates applied for in rendering such services. Pending hearing, it also applied for a provisional authority so that it can continue to operate and maintain the above mentioned facilities, provide the services and charge therefor the aforesaid rates therein applied for. On September 16, 1987, petitioner was granted a provisional authority to continue operating its existing facilities, to render the services it was then offering, and to charge the rates it was then charging. This authority was valid for six (6) months from the date of said order. 5 When said provisional authority expired on March 17, 1988, it was extended for another six (6) months, or up to September 16, 1988. The NTC order now in controversy had further extended the provisional authority of the petitioner for another six (6) months, counted from September 16, 1988, but it directed the petitioner to charge modified reduced rates through a reduction of fifteen percent (15%) on the present authorized rates. Respondent Commissioner ordered said reduction on the following ground:

The Commission in its on-going review of present service rates takes note that after an initial evaluation by the Rates Regulation Division of the Common Carriers Authorization Department of the financial statements of applicant, there is merit in a REDUCTION in some of applicant's rates, subject to further reductions, should the Commission finds (sic) in its further evaluation that more reduction should be effected either on the basis of a provisional authorization or in the final consideration of the case. 6 PHILCOMSAT assails the above-quoted order for the following reasons: 1. The enabling act (Executive Order No. 546) of respondent NTC empowering it to fix rates for public service communications does not provide the necessary standards constitutionally required, hence there is an undue delegation of legislative power, particularly the adjudicatory powers of NTC; 2. Assuming arguendo that the rate-fixing power was properly and constitutionally conferred, the same was exercised in an unconstitutional manner, hence it is ultra vires, in that (a) the questioned order violates procedural due process for having been issued without prior notice and hearing; and (b) the rate reduction it imposes is unjust, unreasonable and confiscatory, thus constitutive of a violation of substantive due process. I. Petitioner asseverates that nowhere in the provisions of Executive Order No. 546, providing for the creation of respondent NTC and granting its rate-fixing powers, nor of Executive Order No. 196, placing petitioner under the jurisdiction of respondent NTC, can it be inferred that respondent NTC is guided by any standard in the exercise of its rate-fixing and adjudicatory powers. While petitioner in its petition-inchief raised the issue of undue delegation of legislative power, it subsequently clarified its said submission to mean that the order mandating a reduction of certain rates is undue delegation not of legislative but of quasi-judicial power to respondent NTC, the exercise of which allegedly requires an express conferment by the legislative body. Whichever way it is presented, petitioner is in effect questioning the constitutionality of Executive Orders Nos. 546 and 196 on the ground that the same do not fix a standard for the exercise of the power therein conferred. We hold otherwise. Fundamental is the rule that delegation of legislative power may be sustained only upon the ground that some standard for its exercise is provided and that the legislature in making the delegation has prescribed the manner of the exercise of the delegated power. Therefore, when the administrative agency concerned, respondent NTC in this case, establishes a rate, its act must both be non- confiscatory and must have been established in the manner prescribed by the legislature; otherwise, in the absence of a fixed standard, the delegation of power becomes unconstitutional. In case of a delegation of rate-fixing power, the only standard which the legislature is required to prescribe for the guidance of the administrative authority is that the rate be reasonable and just. However, it has been held that even in the absence of an express requirement as to reasonableness, this standard may be implied. 7 It becomes important then to ascertain the nature of the power delegated to respondent NTC and the manner required by the statute for the lawful exercise thereof. Pursuant to Executive Orders Nos. 546 and 196, respondent NTC is empowered, among others, to determine and prescribe rates pertinent to the operation of public service communications which necessarily include the power to promulgate rules and regulations in connection therewith. And, under Section 15(g) of Executive Order No. 546, respondent NTC should be guided by the requirements of public safety, public interest and reasonable feasibility of maintaining effective competition of private entities in communications and broadcasting facilities. Likewise, in Section 6(d) thereof, which provides for the creation of the Ministry of Transportation and Communications with control and supervision over respondent NTC, it is specifically provided that the national economic viability of the entire network or components of the communications systems contemplated therein should be maintained at reasonable rates. We need not go into an in-depth analysis of the pertinent provisions of the law in order to conclude that respondent NTC, in the exercise of its rate-fixing power, is limited by the requirements of public

safety, public interest, reasonable feasibility and reasonable rates, which conjointly more than satisfy the requirements of a valid delegation of legislative power. II. On another tack, petitioner submits that the questioned order violates procedural due process because it was issued motu proprio, without notice to petitioner and without the benefit of a hearing. Petitioner laments that said order was based merely on an "initial evaluation," which is a unilateral evaluation, but had petitioner been given an opportunity to present its side before the order in question was issued, the confiscatory nature of the rate reduction and the consequent deterioration of the public service could have been shown and demonstrated to respondents. Petitioner argues that the function involved in the rate fixing-power of NTC is adjudicatory and hence quasi-judicial, not quasi- legislative; thus, notice and hearing are necessary and the absence thereof results in a violation of due process. Respondents admit that the application of a policy like the fixing of rates as exercised by administrative bodies is quasi-judicial rather than quasi-legislative: that where the function of the administrative agency is legislative, notice and hearing are not required, but where an order applies to a named person, as in the instant case, the function involved is adjudicatory. 8 Nonetheless, they insist that under the facts obtaining the order in question need not be preceded by a hearing, not because it was issued pursuant to respondent NTC's legislative function but because the assailed order is merely interlocutory, it being an incident in the ongoing proceedings on petitioner's application for a certificate of public convenience; and that petitioner is not the only primary source of data or information since respondent is currently engaged in a continuing review of the rates charged. We find merit in petitioner's contention. In Vigan Electric Light Co., Inc. vs. Public Service Commission, 9 we made a categorical classification as to when the rate-filing power of administrative bodies is quasi-judicial and when it is legislative, thus: Moreover, although the rule-making power and even the power to fix rates- when such rules and/or rates are meant to apply to all enterprises of a given kind throughout the Philippinesmay partake of a legislative character, such is not the nature of the order complained of. Indeed, the same applies exclusively to petitioner herein. What is more, it is predicated upon the finding of fact-based upon a report submitted by the General Auditing Office-that petitioner is making a profit of more than 12% of its invested capital, which is denied by petitioner. Obviously, the latter is entitled to cross-examine the maker of said report, and to introduce evidence to disprove the contents thereof and/or explain or complement the same, as well as to refute the conclusion drawn therefrom by the respondent. In other words, in making said finding of fact, respondent performed a function partaking of a quasijudicial character, the valid exercise of which demands previous notice and hearing. This rule was further explained in the subsequent case of The Central Bank of the Philippines vs. Cloribel, et al. 10 to wit: It is also clear from the authorities that where the function of the administrative body is legislative, notice of hearing is not required by due process of law (See Oppenheimer, Administrative Law, 2 Md. L.R. 185, 204, supra, where it is said: 'If the nature of the administrative agency is essentially legislative, the requirements of notice and hearing are not necessary. The validity of a rule of future action which affects a group, if vested rights of liberty or property are not involved, is not determined according to the same rules which apply in the case of the direct application of a policy to a specific individual) ... It is said in 73 C.J.S. Public Administrative Bodies and Procedure, sec. 130, pages 452 and 453: 'Aside from statute, the necessity of notice and hearing in an administrative proceeding depends on the character of the proceeding and the circumstances involved. In so far as generalization is possible in view of the great variety of administrative proceedings, it may be stated as a general rule that notice and hearing are not essential to the validity of administrative action where the administrative body acts in the exercise of executive, administrative, or legislative functions; but where a public administrative body acts in a judicial or quasijudicial matter, and its acts are particular and immediate rather than general and prospective, the person whose rights or property may be affected by the action is entitled to notice and hearing. 11

The order in question which was issued by respondent Alcuaz no doubt contains all the attributes of a quasi-judicial adjudication. Foremost is the fact that said order pertains exclusively to petitioner and to no other. Further, it is premised on a finding of fact, although patently superficial, that there is merit in a reduction of some of the rates charged- based on an initial evaluation of petitioner's financial statementswithout affording petitioner the benefit of an explanation as to what particular aspect or aspects of the financial statements warranted a corresponding rate reduction. No rationalization was offered nor were the attending contingencies, if any, discussed, which prompted respondents to impose as much as a fifteen percent (15%) rate reduction. It is not far-fetched to assume that petitioner could be in a better position to rationalize its rates vis-a-vis the viability of its business requirements. The rates it charges result from an exhaustive and detailed study it conducts of the multi-faceted intricacies attendant to a public service undertaking of such nature and magnitude. We are, therefore, inclined to lend greater credence to petitioner's ratiocination that an immediate reduction in its rates would adversely affect its operations and the quality of its service to the public considering the maintenance requirements, the projects it still has to undertake and the financial outlay involved. Notably, petitioner was not even afforded the opportunity to cross-examine the inspector who issued the report on which respondent NTC based its questioned order. At any rate, there remains the categorical admission made by respondent NTC that the questioned order was issued pursuant to its quasi-judicial functions. It, however, insists that notice and hearing are not necessary since the assailed order is merely incidental to the entire proceedings and, therefore, temporary in nature. This postulate is bereft of merit. While respondents may fix a temporary rate pending final determination of the application of petitioner, such rate-fixing order, temporary though it may be, is not exempt from the statutory procedural requirements of notice and hearing, as well as the requirement of reasonableness. Assuming that such power is vested in NTC, it may not exercise the same in an arbitrary and confiscatory manner. Categorizing such an order as temporary in nature does not perforce entail the applicability of a different rule of statutory procedure than would otherwise be applied to any other order on the same matter unless otherwise provided by the applicable law. In the case at bar, the applicable statutory provision is Section 16(c) of the Public Service Act which provides: Section 16. Proceedings of the Commission, upon notice and hearing the Commission shall have power, upon proper notice and hearing in accordance with the rules and provisions of this Act, subject to the limitations and exceptions mentioned and saving provisions to the contrary: xxx xxx xxx (c) To fix and determine individual or joint rates, ... which shall be imposed, observed and followed thereafter by any public service; ... There is no reason to assume that the aforesaid provision does not apply to respondent NTC, there being no limiting, excepting, or saving provisions to the contrary in Executive Orders Nos. 546 and 196. It is thus clear that with regard to rate-fixing, respondent has no authority to make such order without first giving petitioner a hearing, whether the order be temporary or permanent, and it is immaterial whether the same is made upon a complaint, a summary investigation, or upon the commission's own motion as in the present case. That such a hearing is required is evident in respondents' order of September 16, 1987 in NTC Case No. 87-94 which granted PHILCOMSAT a provisional authority "to continue operating its existing facilities, to render the services it presently offers, and to charge the rates as reduced by them "under the condition that "(s)ubject to hearing and the final consideration of the merit of this application, the Commission may modify, revise or amend the rates ..." 12 While it may be true that for purposes of rate-fixing respondents may have other sources of information or data, still, since a hearing is essential, respondent NTC should act solely on the basis of the evidence before it and not on knowledge or information otherwise acquired by it but which is not offered in evidence or, even if so adduced, petitioner was given no opportunity to controvert. Again, the order requires the new reduced rates to be made effective on a specified date. It becomes a final legislative act as to the period during which it has to remain in force pending the final determination

of the case. 13 An order of respondent NTC prescribing reduced rates, even for a temporary period, could be unjust, unreasonable or even confiscatory, especially if the rates are unreasonably low, since the utility permanently loses its just revenue during the prescribed period. In fact, such order is in effect final insofar as the revenue during the period covered by the order is concerned. Upon a showing, therefore, that the order requiring a reduced rate is confiscatory, and will unduly deprive petitioner of a reasonable return upon its property, a declaration of its nullity becomes inductible, which brings us to the issue on substantive due process. III. Petitioner contends that the rate reduction is confiscatory in that its implementation would virtually result in a cessation of its operations and eventual closure of business. On the other hand, respondents assert that since petitioner is operating its communications satellite facilities through a legislative franchise, as such grantee it has no vested right therein. What it has is merely a privilege or license which may be revoked at will by the State at any time without necessarily violating any vested property right of herein petitioner. While petitioner concedes this thesis of respondent, it counters that the withdrawal of such privilege should nevertheless be neither whimsical nor arbitrary, but it must be fair and reasonable. There is no question that petitioner is a mere grantee of a legislative franchise which is subject to amendment, alteration, or repeal by Congress when the common good so requires. 14 Apparently, therefore, such grant cannot be unilaterally revoked absent a showing that the termination of the operation of said utility is required by the common good. The rule is that the power of the State to regulate the conduct and business of public utilities is limited by the consideration that it is not the owner of the property of the utility, or clothed with the general power of management incident to ownership, since the private right of ownership to such property remains and is not to be destroyed by the regulatory power. The power to regulate is not the power to destroy useful and harmless enterprises, but is the power to protect, foster, promote, preserve, and control with due regard for the interest, first and foremost, of the public, then of the utility and of its patrons. Any regulation, therefore, which operates as an effective confiscation of private property or constitutes an arbitrary or unreasonable infringement of property rights is void, because it is repugnant to the constitutional guaranties of due process and equal protection of the laws. 15 Hence, the inherent power and authority of the State, or its authorized agent, to regulate the rates charged by public utilities should be subject always to the requirement that the rates so fixed shall be reasonable and just. A commission has no power to fix rates which are unreasonable or to regulate them arbitrarily. This basic requirement of reasonableness comprehends such rates which must not be so low as to be confiscatory, or too high as to be oppressive. 16 What is a just and reasonable rate is not a question of formula but of sound business judgment based upon the evidence 17 it is a question of fact calling for the exercise of discretion, good sense, and a fair, enlightened and independent judgment. 18 In determining whether a rate is confiscatory, it is essential also to consider the given situation, requirements and opportunities of the utility. A method often employed in determining reasonableness is the fair return upon the value of the property to the public utility. Competition is also a very important factor in determining the reasonableness of rates since a carrier is allowed to make such rates as are necessary to meet competition. 19 A cursory perusal of the assailed order reveals that the rate reduction is solely and primarily based on the initial evaluation made on the financial statements of petitioner, contrary to respondent NTC's allegation that it has several other sources of information without, however, divulging such sources. Furthermore, it did not as much as make an attempt to elaborate on how it arrived at the prescribed rates. It just perfunctorily declared that based on the financial statements, there is merit for a rate reduction without any elucidation on what implications and conclusions were necessarily inferred by it from said statements. Nor did it deign to explain how the data reflected in the financial statements influenced its decision to impose a rate reduction. On the other hand, petitioner may likely suffer a severe drawback, with the consequent detriment to the public service, should the order of respondent NTC turn out to be unreasonable and improvident. The business in which petitioner is engaged is unique in that its machinery and equipment have always to be taken in relation to the equipment on the other end of the transmission arrangement. Any lack, aging, acquisition, rehabilitation, or refurbishment of machinery and equipment necessarily entails a major adjustment or innovation on the business of petitioner. As pointed out by petitioner, any change in the

sending end abroad has to be matched with the corresponding change in the receiving end in the Philippines. Conversely, any in the receiving end abroad has to be matched with the corresponding change in the sending end in the Philippines. An inability on the part of petitioner to meet the variegations demanded be technology could result in a deterioration or total failure of the service of satellite communications. At present, petitioner is engaged in several projects aimed at refurbishing, rehabilitating, and renewing its machinery and equipment in order to keep up with the continuing charges of the times and to maintain its facilities at a competitive level with the technological advances abroad. There projected undertakings were formulated on the premise that rates are maintained at their present or at reasonable levels. Hence, an undue reduction thereof may practically lead to a cessation of its business. While we concede the primacy of the public interest in an adequate and efficient service, the same is not necessarily to be equated with reduced rates. Reasonableness in the rates assumes that the same is fair to both the public utility and the consumer. Consequently, we hold that the challenged order, particularly on the issue of rates provided therein, being violative of the due process clause is void and should be nullified. Respondents should now proceed, as they should heretofore have done, with the hearing and determination of petitioner's pending application for a certificate of public convenience and necessity and in which proceeding the subject of rates involved in the present controversy, as well as other matter involved in said application, be duly adjudicated with reasonable dispatch and with due observance of our pronouncements herein. WHEREFORE, the writ prayed for is GRANTED and the order of respondents, dated September 2, 1988, in NTC Case No. 87-94 is hereby SET ASIDE. The temporary restraining order issued under our resolution of September 13, 1988, as specifically directed against the aforesaid order of respondents on the matter of existing rates on petitioner's present authorized services, is hereby made permanent. SO ORDERED. Fernan, (C.J.), Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Bidin, Sarmiento, Cortes, Grio-Aquino and Medialdea, JJ., concur. Padilla, J., took no part.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-46496 February 27, 1940

ANG TIBAY, represented by TORIBIO TEODORO, manager and propietor, and NATIONAL WORKERS BROTHERHOOD, petitioners, vs. THE COURT OF INDUSTRIAL RELATIONS and NATIONAL LABOR UNION, INC., respondents. Office of the Solicitor-General Ozaeta and Assistant Attorney Barcelona for the Court of Industrial Relations. Antonio D. Paguia for National Labor Unon. Claro M. Recto for petitioner "Ang Tibay". Jose M. Casal for National Workers' Brotherhood. LAUREL, J.: The Solicitor-General in behalf of the respondent Court of Industrial Relations in the above-entitled case has filed a motion for reconsideration and moves that, for the reasons stated in his motion, we reconsider the following legal conclusions of the majority opinion of this Court: 1. Que un contrato de trabajo, asi individual como colectivo, sin termino fijo de duracion o que no sea para una determinada, termina o bien por voluntad de cualquiera de las partes o cada vez que ilega el plazo fijado para el pago de los salarios segun costumbre en la localidad o cunado se termine la obra; 2. Que los obreros de una empresa fabril, que han celebrado contrato, ya individual ya colectivamente, con ell, sin tiempo fijo, y que se han visto obligados a cesar en sus tarbajos por haberse declarando paro forzoso en la fabrica en la cual tarbajan, dejan de ser empleados u obreros de la misma; 3. Que un patrono o sociedad que ha celebrado un contrato colectivo de trabajo con sus osbreros sin tiempo fijo de duracion y sin ser para una obra determiminada y que se niega a readmitir a dichos obreros que cesaron como consecuencia de un paro forzoso, no es culpable de practica injusta in incurre en la sancion penal del articulo 5 de la Ley No. 213 del Commonwealth, aunque su negativa a readmitir se deba a que dichos obreros pertenecen a un determinado organismo obrero, puesto que tales ya han dejado deser empleados suyos por terminacion del contrato en virtud del paro. The respondent National Labor Union, Inc., on the other hand, prays for the vacation of the judgement rendered by the majority of this Court and the remanding of the case to the Court of Industrial Relations for a new trial, and avers: 1. That Toribio Teodoro's claim that on September 26, 1938, there was shortage of leather soles in ANG TIBAY making it necessary for him to temporarily lay off the members of the National Labor Union Inc., is entirely false and unsupported by the records of the Bureau of Customs and the Books of Accounts of native dealers in leather. 2. That the supposed lack of leather materials claimed by Toribio Teodoro was but a scheme to systematically prevent the forfeiture of this bond despite the breach of his CONTRACT with the Philippine Army.

3. That Toribio Teodoro's letter to the Philippine Army dated September 29, 1938, (re supposed delay of leather soles from the States) was but a scheme to systematically prevent the forfeiture of this bond despite the breach of his CONTRACT with the Philippine Army. 4. That the National Worker's Brotherhood of ANG TIBAY is a company or employer union dominated by Toribio Teodoro, the existence and functions of which are illegal. (281 U.S., 548, petitioner's printed memorandum, p. 25.) 5. That in the exercise by the laborers of their rights to collective bargaining, majority rule and elective representation are highly essential and indispensable. (Sections 2 and 5, Commonwealth Act No. 213.) 6. That the century provisions of the Civil Code which had been (the) principal source of dissensions and continuous civil war in Spain cannot and should not be made applicable in interpreting and applying the salutary provisions of a modern labor legislation of American origin where the industrial peace has always been the rule. 7. That the employer Toribio Teodoro was guilty of unfair labor practice for discriminating against the National Labor Union, Inc., and unjustly favoring the National Workers' Brotherhood. 8. That the exhibits hereto attached are so inaccessible to the respondents that even with the exercise of due diligence they could not be expected to have obtained them and offered as evidence in the Court of Industrial Relations. 9. That the attached documents and exhibits are of such far-reaching importance and effect that their admission would necessarily mean the modification and reversal of the judgment rendered herein. The petitioner, Ang Tibay, has filed an opposition both to the motion for reconsideration of the respondent National Labor Union, Inc. In view of the conclusion reached by us and to be herein after stead with reference to the motion for a new trial of the respondent National Labor Union, Inc., we are of the opinion that it is not necessary to pass upon the motion for reconsideration of the Solicitor-General. We shall proceed to dispose of the motion for new trial of the respondent labor union. Before doing this, however, we deem it necessary, in the interest of orderly procedure in cases of this nature, in interest of orderly procedure in cases of this nature, to make several observations regarding the nature of the powers of the Court of Industrial Relations and emphasize certain guiding principles which should be observed in the trial of cases brought before it. We have re-examined the entire record of the proceedings had before the Court of Industrial Relations in this case, and we have found no substantial evidence that the exclusion of the 89 laborers here was due to their union affiliation or activity. The whole transcript taken contains what transpired during the hearing and is more of a record of contradictory and conflicting statements of opposing counsel, with sporadic conclusion drawn to suit their own views. It is evident that these statements and expressions of views of counsel have no evidentiary value. The Court of Industrial Relations is a special court whose functions are specifically stated in the law of its creation (Commonwealth Act No. 103). It is more an administrative than a part of the integrated judicial system of the nation. It is not intended to be a mere receptive organ of the Government. Unlike a court of justice which is essentially passive, acting only when its jurisdiction is invoked and deciding only cases that are presented to it by the parties litigant, the function of the Court of Industrial Relations, as will appear from perusal of its organic law, is more active, affirmative and dynamic. It not only exercises judicial or quasi-judicial functions in the determination of disputes between employers and employees but its functions in the determination of disputes between employers and employees but its functions are far more comprehensive and expensive. It has jurisdiction over the entire Philippines, to consider, investigate, decide, and settle any question, matter controversy or dispute arising between, and/or affecting employers and employees or laborers, and regulate the relations between them, subject to, and in accordance with, the provisions of Commonwealth Act No. 103 (section 1). It shall take cognizance or purposes of prevention, arbitration, decision and settlement, of any industrial or agricultural dispute causing or likely to cause a strike or lockout, arising from differences as regards wages, shares or compensation, hours of

labor or conditions of tenancy or employment, between landlords and tenants or farm-laborers, provided that the number of employees, laborers or tenants of farm-laborers involved exceeds thirty, and such industrial or agricultural dispute is submitted to the Court by the Secretary of Labor or by any or both of the parties to the controversy and certified by the Secretary of labor as existing and proper to be by the Secretary of Labor as existing and proper to be dealth with by the Court for the sake of public interest. (Section 4, ibid.) It shall, before hearing the dispute and in the course of such hearing, endeavor to reconcile the parties and induce them to settle the dispute by amicable agreement. (Paragraph 2, section 4, ibid.) When directed by the President of the Philippines, it shall investigate and study all industries established in a designated locality, with a view to determinating the necessity and fairness of fixing and adopting for such industry or locality a minimum wage or share of laborers or tenants, or a maximum "canon" or rental to be paid by the "inquilinos" or tenants or less to landowners. (Section 5, ibid.) In fine, it may appeal to voluntary arbitration in the settlement of industrial disputes; may employ mediation or conciliation for that purpose, or recur to the more effective system of official investigation and compulsory arbitration in order to determine specific controversies between labor and capital industry and in agriculture. There is in reality here a mingling of executive and judicial functions, which is a departure from the rigid doctrine of the separation of governmental powers. In the case of Goseco vs. Court of Industrial Relations et al., G.R. No. 46673, promulgated September 13, 1939, we had occasion to joint out that the Court of Industrial Relations et al., G. R. No. 46673, promulgated September 13, 1939, we had occasion to point out that the Court of Industrial Relations is not narrowly constrained by technical rules of procedure, and the Act requires it to "act according to justice and equity and substantial merits of the case, without regard to technicalities or legal forms and shall not be bound by any technicalities or legal forms and shall not be bound by any technical rules of legal evidence but may inform its mind in such manner as it may deem just and equitable." (Section 20, Commonwealth Act No. 103.) It shall not be restricted to the specific relief claimed or demands made by the parties to the industrial or agricultural dispute, but may include in the award, order or decision any matter or determination which may be deemed necessary or expedient for the purpose of settling the dispute or of preventing further industrial or agricultural disputes. (section 13, ibid.) And in the light of this legislative policy, appeals to this Court have been especially regulated by the rules recently promulgated by the rules recently promulgated by this Court to carry into the effect the avowed legislative purpose. The fact, however, that the Court of Industrial Relations may be said to be free from the rigidity of certain procedural requirements does not mean that it can, in justifiable cases before it, entirely ignore or disregard the fundamental and essential requirements of due process in trials and investigations of an administrative character. There are primary rights which must be respected even in proceedings of this character: (1) The first of these rights is the right to a hearing, which includes the right of the party interested or affected to present his own case and submit evidence in support thereof. In the language of Chief Hughes, in Morgan v. U.S., 304 U.S. 1, 58 S. Ct. 773, 999, 82 Law. ed. 1129, "the liberty and property of the citizen shall be protected by the rudimentary requirements of fair play. (2) Not only must the party be given an opportunity to present his case and to adduce evidence tending to establish the rights which he asserts but the tribunal must consider the evidence presented. (Chief Justice Hughes in Morgan v. U.S. 298 U.S. 468, 56 S. Ct. 906, 80 law. ed. 1288.) In the language of this court in Edwards vs. McCoy, 22 Phil., 598, "the right to adduce evidence, without the corresponding duty on the part of the board to consider it, is vain. Such right is conspicuously futile if the person or persons to whom the evidence is presented can thrust it aside without notice or consideration." (3) "While the duty to deliberate does not impose the obligation to decide right, it does imply a necessity which cannot be disregarded, namely, that of having something to support it is a nullity, a place when directly attached." (Edwards vs. McCoy, supra.) This principle emanates from the more fundamental is contrary to the vesting of unlimited power anywhere. Law is both a grant and a limitation upon power. (4) Not only must there be some evidence to support a finding or conclusion (City of Manila vs. Agustin, G.R. No. 45844, promulgated November 29, 1937, XXXVI O. G. 1335), but the evidence must be "substantial." (Washington, Virginia and Maryland Coach Co. v. national labor Relations Board, 301 U.S. 142, 147, 57 S. Ct. 648, 650, 81 Law. ed. 965.) It means such relevant evidence as a reasonable mind accept as adequate to support a conclusion." (Appalachian Electric Power v.

National Labor Relations Board, 4 Cir., 93 F. 2d 985, 989; National Labor Relations Board v. Thompson Products, 6 Cir., 97 F. 2d 13, 15; Ballston-Stillwater Knitting Co. v. National Labor Relations Board, 2 Cir., 98 F. 2d 758, 760.) . . . The statute provides that "the rules of evidence prevailing in courts of law and equity shall not be controlling.' The obvious purpose of this and similar provisions is to free administrative boards from the compulsion of technical rules so that the mere admission of matter which would be deemed incompetent inn judicial proceedings would not invalidate the administrative order. (Interstate Commerce Commission v. Baird, 194 U.S. 25, 44, 24 S. Ct. 563, 568, 48 Law. ed. 860; Interstate Commerce Commission v. Louisville and Nashville R. Co., 227 U.S. 88, 93 33 S. Ct. 185, 187, 57 Law. ed. 431; United States v. Abilene and Southern Ry. Co. S. Ct. 220, 225, 74 Law. ed. 624.) But this assurance of a desirable flexibility in administrative procedure does not go far as to justify orders without a basis in evidence having rational probative force. Mere uncorroborated hearsay or rumor does not constitute substantial evidence. (Consolidated Edison Co. v. National Labor Relations Board, 59 S. Ct. 206, 83 Law. ed. No. 4, Adv. Op., p. 131.)" (5) The decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected. (Interstate Commence Commission vs. L. & N. R. Co., 227 U.S. 88, 33 S. Ct. 185, 57 Law. ed. 431.) Only by confining the administrative tribunal to the evidence disclosed to the parties, can the latter be protected in their right to know and meet the case against them. It should not, however, detract from their duty actively to see that the law is enforced, and for that purpose, to use the authorized legal methods of securing evidence and informing itself of facts material and relevant to the controversy. Boards of inquiry may be appointed for the purpose of investigating and determining the facts in any given case, but their report and decision are only advisory. (Section 9, Commonwealth Act No. 103.) The Court of Industrial Relations may refer any industrial or agricultural dispute or any matter under its consideration or advisement to a local board of inquiry, a provincial fiscal. a justice of the peace or any public official in any part of the Philippines for investigation, report and recommendation, and may delegate to such board or public official such powers and functions as the said Court of Industrial Relations may deem necessary, but such delegation shall not affect the exercise of the Court itself of any of its powers. (Section 10, ibid.) (6) The Court of Industrial Relations or any of its judges, therefore, must act on its or his own independent consideration of the law and facts of the controversy, and not simply accept the views of a subordinate in arriving at a decision. It may be that the volume of work is such that it is literally Relations personally to decide all controversies coming before them. In the United States the difficulty is solved with the enactment of statutory authority authorizing examiners or other subordinates to render final decision, with the right to appeal to board or commission, but in our case there is no such statutory authority. (7) The Court of Industrial Relations should, in all controversial questions, render its decision in such a manner that the parties to the proceeding can know the various issues involved, and the reasons for the decision rendered. The performance of this duty is inseparable from the authority conferred upon it. In the right of the foregoing fundamental principles, it is sufficient to observe here that, except as to the alleged agreement between the Ang Tibay and the National Worker's Brotherhood (appendix A), the record is barren and does not satisfy the thirst for a factual basis upon which to predicate, in a national way, a conclusion of law. This result, however, does not now preclude the concession of a new trial prayed for the by respondent National Labor Union, Inc., it is alleged that "the supposed lack of material claimed by Toribio Teodoro was but a scheme adopted to systematically discharged all the members of the National Labor Union Inc., from work" and this avernment is desired to be proved by the petitioner with the "records of the Bureau of Customs and the Books of Accounts of native dealers in leather"; that "the National Workers Brotherhood Union of Ang Tibay is a company or employer union dominated by Toribio Teodoro, the existence and functions of which are illegal." Petitioner further alleges under oath that the exhibits attached to the petition to prove his substantial avernments" are so inaccessible to the respondents that even within the exercise of due diligence they could not be expected to have obtained them and offered as evidence in the Court of Industrial Relations", and that the documents attached to the petition "are of such far reaching importance and effect that their admission would necessarily mean the modification and reversal of the

judgment rendered herein." We have considered the reply of Ang Tibay and its arguments against the petition. By and large, after considerable discussions, we have come to the conclusion that the interest of justice would be better served if the movant is given opportunity to present at the hearing the documents referred to in his motion and such other evidence as may be relevant to the main issue involved. The legislation which created the Court of Industrial Relations and under which it acts is new. The failure to grasp the fundamental issue involved is not entirely attributable to the parties adversely affected by the result. Accordingly, the motion for a new trial should be and the same is hereby granted, and the entire record of this case shall be remanded to the Court of Industrial Relations, with instruction that it reopen the case, receive all such evidence as may be relevant and otherwise proceed in accordance with the requirements set forth hereinabove. So ordered. Avancea, C. J., Villa-Real, Imperial, Diaz, Concepcion and Moran, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 99327 May 27, 1993 ATENEO DE MANILA UNIVERSITY, FATHER JOAQUIN BERNAS, S. J., DEAN CYNTHIA ROXAS-DEL CASTILLO, JUDGE RUPERTO KAPUNAN, JR., JUSTICE VENICIO ESCOLIN, FISCAL MIGUEL ALBAR, ATTYS. MARCOS HERRAS, FERDINAND CASIS, JOSE CLARO TESORO, RAMON CAGUIOA, and RAMON ERENETA. petitioners, vs. HON. IGNACIO M. CAPULONG, Presiding Judge of the RTC-Makati, Br. 134, ZOSIMO MENDOZA, JR. ERNEST MONTECILLO, ADEL ABAS, JOSEPH LLEDO AMADO SABBAN, DALMACIO LIM JR., MANUEL ESCONA and JUDE FERNANDEZ, respondents. Bengzon, Zarraga, Narciso, Cudala, Pecson, Benson & Jimenes for petitioners. Romulo, Mabanta, Buenaventura, Sayoc & De Los Angeles for petitioner Cynthia Roxas-del Castillo. Fabregas, Calida & Remollo for private respondents.

ROMERO, J.: In 1975, the Court was confronted with a mandamus proceeding to compel the Faculty Admission Committee of the Loyola School of Theology, a religious seminary which has a working arrangement with the Ateneo de Manila University regarding accreditation of common students, to allow petitioner who had taken some courses therein for credit during summer, to continue her studies. 1 Squarely meeting the issue, we dismissed the petition on the ground that students in the position of petitioner possess, not a right, but a privilege, to be admitted to the institution. Not having satisfied the prime and indispensable requisite of a mandamus proceeding since there is no duty, much less a clear duty, on the part of the respondent to admit the petitioner, the petition did not prosper. In support of its decision, the Court invoked academic freedom of institutions of higher learning, as recognized by the Constitution, the concept encompassing the right of a school to choose its students. Eighteen (18) years later, the right of a University to refuse admittance to its students, this time in Ateneo de Manila University proper, is again challenged. Whereas, in the Garcia case referred to in the opening paragraph, the individual concerned was not a regular student, the respondents in the case at bar, having been previously enrolled in the University, seek re-admission. Moreover, in the earlier case, the petitioner was refused admittance, not on such considerations as personality traits and character orientation, or even inability to meet the institution's academic or intellectual standards, but because of her behavior in the classroom. The school pointedly informed her that ". . . it would seem to be in your best interest to work with a Faculty that is more compatible with your orientations." On the other hand, students who are now being refused admission into petitioner University have been found guilty of violating Rule No. 3 of the Ateneo Law School Rules on Discipline which prohibits participation in hazing activities. The case attracted much publicity due to the death of one of the neophytes and serious physical injuries inflicted on another.

Herein lies an opportunity for the Court to add another dimension to the concept of academic freedom of institutions of higher learning, this time a case fraught with social and emotional overtones. The facts which gave rise to this case which is far from novel, are as follows: As a requisite to membership, the Aquila Legis, a fraternity organized in the Ateneo Law School, held its initiation rites on February 8, 9 and 10, 1991, for students interested in joining its ranks. As a result of such initiation rites, Leonardo "Lennie" H. Villa, a first year student of petitioner university, died of serious physical injuries at Chinese General Hospital on February 10, 1991. He was not the lone victim, though, for another freshman by the name of Bienvenido Marquez was also hospitalized at the Capitol Medical Center for acute renal failure occasioned by the serious physical injuries inflicted upon him on the same occasion. In a notice dated February 11, 1991, petitioner Dean Cynthia del Castillo created a Joint AdministrationFaculty-Student Investigating Committee 2 which was tasked to investigate and submit a report within 72 hours on the circumstances surrounding the death of Lennie Villa. Said notice also required respondent students to submit their written statements within twenty-four (24) hours from receipt. Although respondent students received a copy of the written notice, they failed to file a reply. In the meantime, they were placed on preventive suspension. 3 Through their respective counsels, they requested copies of the charges and pertinent documents or affidavits. In a notice dated February 14, 1991, the Joint Administration-Faculty-Student Investigating Committee, after receiving the written statements and hearing the testimonies of several witness, found a prima facie case against respondent students for violation of Rule 3 of the Law School Catalogue entitled "Discipline." 4 Respondent students were then required to file their written answers to the formal charge on or before February 18, 1991; otherwise, they would be deemed to have waived their right to present their defenses. On February 20, 1991, petitioner Dean created a Disciplinary Board composed of petitioners Judge Ruperto Kapunan, Justice Venicio Escolin, Atty. Marcos Herras, Fiscal Miguel Albar and Atty. Ferdinand Casis, to hear the charges against respondent students. In a letter dated February 20, 1991, respondent students were informed that they had violated Rule No. 3 of the Rules on Discipline contained in the Law School Catalogue. Said letter also states: "The complaint/charge against you arose from initiations held on February 8-10, 1991. The evidence against you consist of testimonies of students, showing your participation in acts prohibited by the School regulations." Finally, it ordered respondent students to file their written answers to the above charge on or before February 22 1991, otherwise they would be deemed to have waived their defenses. 5 In a motion dated February 21, 1991, respondent students, through counsel, requested that the investigation against them be held in abeyance, pending action on their request for copies of the evidence against them. 6 Respondent students were then directed by the Board to appear before it at a hearing on February 28, 1991 to clarify their answer with regard to the charges filed by the investigating committee for violation of Rule No. 3. However, in a letter to a petitioners dated February 27, 1991, counsel for respondent students moved to postpone the hearing from February 28, 1991 to March 1, 1991. 7 Subsequently, respondent students were directed to appear on March 2, 1991 for clarificatory questions. 8 They were also informed that: a) The proceedings will be summary in nature in accordance with the rules laid down in the case of Guzman vs. National University; 9 b) Petitioners have no right to cross-examine the affiants-neophytes; c) Hazing which is not defined in the School catalogue shall be defined in accordance with the proposed bill of Sen. Jose Lina, Senate Bill No. 3815;

d) The Board will take into consideration the degree of participation of the petitioners in the alleged hazing incident in imposing the penalty; e) The Decision of the Board shall be appealable to the President of the University, i. e., Respondent Joaquin Bernas S. J. On March 5, 1991, petitioner Bernas wrote Dean Castillo that, "in cases where the Disciplinary Board is not prepared to impose the penalty of dismissal, I would prefer that the Board leave the decision on the penalty to the Administration so that this case be decided not just on the Law School level but also on the University level." 10 In a resolution dated March 9, 1991, the Board found respondent students guilty of violating Rule No. 3 of the Ateneo Law School Rules on Discipline which prohibits participation in hazing activities. The Board found that respondent students acted as master auxiliaries or "auxies" during the initiation rites of Aquila Legis, and exercised the "auxies privilege," which allows them to participate in the physical hazing. Although respondent students claim that they were there to assist and attend to the needs of the neophytes, actually they were assigned a definite supportive role to play in the organized activity. Their guilt was heightened by the fact that they made no effort to prevent the infliction of further physical punishment on the neophytes under their care. The Board considered respondent students part and parcel of the integral process of hazing. In conclusion, the Board pronounced respondents guilty of hazing, either by active participation or through acquiescence. However, in view of the lack of unanimity among the members of the Board on the penalty of dismissal, the Board left the imposition of the penalty to the University Administration. 11 Petitioner Dean del Castillo waived her prerogative to review the decision of the Board and left to the President of the University the decision of whether to expel respondents or not. Consequently, in a resolution dated March 10, 1991, petitioner Fr. Joaquin G. Bernas, as President of the Ateneo de Manila University, accepted the factual findings of the Board, thus: "that as Master Auxiliaries they exercised the 'auxie's privilege;' that even assuming they did not lay hands on the neophytes," respondents students are still guilty in accordance with the principle that "where two or more persons act together in the commission of a crime, whether they act through the physical volition of one or of all, proceeding severally or collectively, each individual whose will contributes to the wrongdoing is responsible for the whole." Fr. Bernas, in describing the offense which led to the death of Leonardo Villa, concluded that the "offense of the respondents can be characterized as grave and serious, subversive of the goals of Christian education and contrary to civilized behavior." Accordingly, he imposed the penalty of dismissal on all respondent students. 12 In a resolution dated March 18, 1991 and concurred in by petitioner Fr. Bernas, 13 the Board excluded respondent students Abas and Mendoza from the coverage of the resolution of March 10, 1991, inasmuch as at the time the latter resolution was promulgated, neither had as yet submitted their case to the Board. Said resolution also set the investigation of the two students on March 21, 1991. On March 18, 1991, respondent students filed with the Regional Trial Court of Makati, a petition for certiorari, prohibition and mandamus with prayer for temporary restraining order and preliminary injunction 14 alleging that they were currently enrolled as students for the second semester of school year 1990-91. Unless a temporary restraining order is issued, they would be prevented from taking their examinations. The petition principally centered on the alleged lack of due process in their dismissal. On the same day, Judge Madayag issued a temporary restraining order the enjoining petitioners from dismissing respondent students and stopping the former from conducting hearings relative to the hazing incident. 15 Hearings in connection with the issuance of the temporary restraining order were then held. On April 7, 1991, the temporary restraining order were issued on March 18, 1991 lapsed. Consequently, a day after the expiration of the temporary restraining order, Dean del Castillo created a Special Board composed of Atty.(s) Jose Claro Tesoro, Ramon Caguioa, and Ramon Ereeta to investigate the charges of hazing against respondent students Abas and Mendoza.

Respondent students reacted immediately by filing a Supplemental Petition of certiorari, prohibition and mandamus with prayer for a temporary restraining order and preliminary injunction, to include the aforesaid members of the Special Board, as additional respondents to the original petition. 16 Petitioners moved to strike out the Supplement Petition arguing that the creation of the Special Board was totally unrelated to the original petition which alleged lack of due process in the conduct of investigations by the Disciplinary Board against respondent students; that a supplemental petition cannot be admitted without the same being set for hearing and that the supplemental petition for the issuance of a temporary restraining order will, in effect, extend the previous restraining order beyond its mandatory 20-day lifetime. 17 Acting on the urgent motion to admit the supplemental petition with prayer for a temporary restraining order, Judge Amin, as pairing judge of respondents Judge Capulong, granted respondent students' prayer on April 10, 1991. 18 On May 17, 1991, respondent Judge ordered petitioners to reinstate respondent students. Simultaneously, the court ordered petitioners to conduct special examinations in lieu of the final examinations which allegedly the students were not allowed to take, and enjoined them to maintain the status quo with regard to the cases of Adel Abas and Zosimo Mendoza pending final determination of the issue of the instant case. Lastly, it directed respondent students to file a bond in the amount of P50,000.00. 19 On the same date, May 17, 1991, the Special Board investigating petitioners Abas and Mendoza and directed the dropping of their names from its roll of students. 20 The following day or on May 21, 1991, respondent judge issued the writ of preliminary injunction upon posting by respondents of a bond dated May 17, 1991 in the amount of P50,000.00. Hence, this special civil action of certiorari under Rule 65 with prayer for the issuance of a temporary restraining order enjoining the enforcement of the May 17, 1991 order of respondent judge. 21 In the case at bar, we come to grips with two relevant issues on academic freedom, namely: (1) whether a school is within its rights in expelling students from its academic community pursuant to its disciplinary rules and moral standards; and (2) whether or not the penalty imposed by the school administration is proper under the circumstances. We grant the petition and reverse the order of respondent judge ordering readmission of respondent students. Respondent judge committed grave abuse of discretion when he ruled that respondent students had been denied due process in the investigation of the charges against them. It is the threshold argument of respondent students that the decision of petitioner Fr. Joaquin Bernas, S. J., then President of the Ateneo de Manila University, to expel them was arrived at without affording them their right to procedural due process. We are constrained to disagree as we find no indication that such right has been violated. On the contrary, respondent students' rights in a school disciplinary proceeding, as enunciated in the cases of Guzman v. National University, 22 Alcuaz v. PSBA, Q.C. Branch 23 and Non v. Dames II 24 have been meticulously respected by petitioners in the various investigative proceedings held before they were expelled. Corollary to their contention of denials of due process is their argument that it is Ang Tibay case 25 and not the Guzman case which is applicable in the case at bar. Though both cases essentially deal with the requirements of due process, the Guzman case is more apropos to the instant case, since the latter deals specifically with the minimum standards to be satisfied in the imposition of disciplinary sanctions in academic institutions, such as petitioner university herein, thus: (1) the students must be informed in writing of the nature and cause of any accusation against them; (2) that they shall have the right to answer the charges against them with the assistance of counsel, if desired: (3) they shall be informed of the evidence against them (4) they shall have the right to adduce evidence in their own behalf; and (5) the evidence must be duly considered by the investigating committee or official designated by the school authorities to hear and decide the case. 26

It cannot seriously be asserted that the above requirements were not met. When, in view of the death of Leonardo Villa, petitioner Cynthia del Castillo, as Dean of the Ateneo Law School, notified and required respondent students on February 11, 1991 to submit within twenty-four hours their written statement on the incident, 27 the records show that instead of filing a reply, respondent students requested through their counsel, copies of the charges. 28 While of the students mentioned in the February 11, 1991 notice duly submitted written statements, the others failed to do so. Thus, the latter were granted an extension of up to February 18, 1991 to file their statements. 29 Indubitably, the nature and cause of the accusation were adequately spelled out in petitioners' notices dated February 14 and 20, 1991. 30 It is to be noted that the February 20, 1991 letter which quoted Rule No. 3 of its Rules of Discipline as contained in the Ateneo Law School Catalogue was addressed individually to respondent students. Petitioners' notices/letters dated February 11, February 14 and 20 clearly show that respondent students were given ample opportunity to adduce evidence in their behalf and to answer the charges leveled against them. The requisite assistance of counsel was met when, from the very start of the investigations before the Joint Administration Faculty-Student Committee, the law firm of Gonzales Batiler and Bilog and Associates put in its appearance and filed pleadings in behalf of respondent students. Respondent students may not use the argument that since they were not accorded the opportunity to see and examine the written statements which became the basis of petitioners' February 14, 1991 order, they were denied procedural due process. 31 Granting that they were denied such opportunity, the same may not be said to detract from the observance of due process, for disciplinary cases involving students need not necessarily include the right to cross examination. An administrative proceeding conducted to investigate students' participation in a hazing activity need not be clothed with the attributes of a judicial proceeding. A closer examination of the March 2, 1991 hearing which characterized the rules on the investigation as being summary in nature and that respondent students have no right to examine affiantsneophytes, reveals that this is but a reiteration of our previous ruling in Alcuaz. 32 Respondent students' contention that the investigating committee failed to consider their evidence is far from the truth because the February 14, 1992 ordered clearly states that it was reached only after receiving the written statements and hearing the testimonies of several witnesses. 33 Similarly, the Disciplinary Board's resolution dated March 10, 1991 was preceded by a hearing on March 2, 1991 wherein respondent students were summoned to answer clarificatory questions. With regard to the charge of hazing, respondent students fault petitioners for not explicitly defining the word "hazing" and allege that there is no proof that they were furnished copies of the 1990-91 Ateneo Law School Catalogue which prohibits hazing. Such flawed sophistry is not worthy of students who aspire to be future members of the Bar. It cannot be overemphasized that the charge filed before the Joint Administration-Faculty-Student Investigating Committee and the Disciplinary Board is not a criminal case requiring proof beyond reasonable doubt but is merely administrative in character. As such, it is not subject to the rigorous requirements of criminal due process, particularly with respect to the specification of the charge involved. As we have had occasion to declare in previous cases a similar nature, due process in disciplinary cases involving students does not entail proceedings and hearings identical to those prescribed for actions and proceedings in courts of justice. 34 Accordingly, disciplinary charges against a student need not be drawn with the precision of a criminal information or complaint. Having given prior notice to the students involved that "hazing" which is not defined in the School Catalogue shall be defined in accordance with Senate Bill No. 3815, the proposed bill on the subject of Sen. Jose Lina, petitioners have said what needs to be said. We deem this sufficient for purposes of the investigation under scrutiny. Hazing, as a ground for disciplining a students, to the extent of dismissal or expulsion, finds its raison d' etre in the increasing frequency of injury, even death, inflicted upon the neophytes by their insensate "masters." Assuredly, it passes the test of reasonableness and absence of malice on the part of the school authorities. Far from fostering comradeship and esprit d' corps, it has merely fed upon the cruel and baser instincts of those who aspire to eventual leadership in our country. Respondent students argue that petitioners are not in a position to file the instant petition under Rule 65 considering that they failed to file a motion for reconsideration first before the trial court, thereby by passing the latter and the Court of Appeals. 35

It is accepted legal doctrine that an exception to the doctrine of exhaustion of remedies is when the case involves a question of law, 36 as in this case, where the issue is whether or not respondent students have been afforded procedural due process prior to their dismissal from petitioner university. Lastly, respondent students argue that we erred in issuing a Temporary Restraining Order since petitioners do not stand to suffer irreperable damage in the event that private respondents are allowed to re-enroll. No one can be so myopic as to doubt that the immediate reinstatement of respondent students who have been investigated and found by the Disciplinary Board to have violated petitioner university's disciplinary rules and standards will certainly undermine the authority of the administration of the school. This we would be most loathe to do. More importantly, it will seriously impair petitioner university's academic freedom which has been enshrined in the 1935, 1973 and the present 1987 Constitutions. At this juncture, it would be meet to recall the essential freedoms subsumed by Justice Felix Frankfurter in the term "academic freedom" cited in the case of Sweezy v. New Hampshire, 37 thus: (1) who may teach: (2) what may be taught; (3) how it shall be taught; and (4) who may be admitted to study. Socrates, the "first of the great moralists of Greece," proud to claim the title "gadfly of the State" has deservedly earned for himself a respected place in the annals of history as a martyr to the cause of free intellectual inquiry. To Plato, this great teacher of his was the "best, the most sensible, and the most sensible, and the most just man of his age." In 399 B.C., he willingly quaffed the goblet of hemlock as punishment for alleged "corruption" of the youth of Athens. He describes in his own words how this charge of "corruption," the forerunner of the concept of academic freedom, came about: Young men of the richer classes, who have not much to do, come about me of their own accord: they like to heart the pretenders examined, and they often imitate me, and examine others themselves; there are plenty of person, as they soon discover, who think that they know something, but really know little or nothing; and then those who are examined by them instead of being angry with themselves are angry with me. This confounded Socrates, they say; this villainous misleader of youth. And then if somebody asks them, Why, what evil does he practice or teach? they do not know, and cannot tell; but in order that they may not appear to be at a loss, they repeat the ready-made charges which are used against all philosophers about teaching things up in the clouds and under the earth, and having no gods, and making the worse appear the better cause; for they do not like to confess that their pretense of knowledge has been detected which is the truth; and as they are numerous and ambitious and energetic, and are all in battle array and have persuasive tongues, they have filled your ears with their loud and inveterate calumnies. 38 Since Socrates, numberless individuals of the same heroic mold have similarly defied the stifling strictures of authority, whether State, Church, or various interest groups, to be able to give free rein to their ideas. Particularly odious were the insidious and blatant attempts at thought control during the time of the Inquisition until even the Medieval universities, renowned as intellectual centers in Europe, gradually lost their autonomy. In time, such noble strivings, gathering libertarian encrustations along the way, were gradually crystallized in the cluster of freedoms which awaited the champions and martyrs of the dawning modern age. This was exemplified by the professors of the new German universities in the 16th and 17th centuries such as the Universities of Leiden (1554), Helmstatdt (1574) and Heidelberg (1652). The movement back to freedom of inquiry gained adherents among the exponents of fundamental human rights of the 19th and 20th centuries. "Academic freedom", the term as it evolved to describe the emerging rights related to intellectual liberty, has traditionally been associated with freedom of thought, speech, expression and the press; in other words, with the right of individuals in university communities, such as professors, researchers and administrators, to investigate, pursue, discuss and, in the immortal words of Socrates, "to follow the argument wherever it may lead," free from internal and external interference or pressure. But obviously, its optimum impact is best realized where the freedom is exercised judiciously and does not degenerate into unbridled license. Early cases on this individual aspect of academic freedom have been stressed the need for assuring to such individuals a measure of independence through the guarantees of

autonomy and security of tenure. The components of this aspect of academic freedom have been categorized under the areas of: (1) who may teach and (2) how to teach. It is to be realized that this individual aspects of academic freedom could have developed only pari passu with its institutional counterpart. As corporate entities, educational institutions of higher learning are inherently endowed with the right to establish their policies, academic and otherwise, unhampered by external controls or pressure. In the Frankfurter formulation, this is articulated in the areas of: (1) what shall be taught, e.g., the curriculum and (2) who may be admitted to study. In the Philippines, the Acts which are passed with the change of sovereignty from the Spanish to the American government, namely, the Philippine Bill of 1902 and the Philippine Autonomy Act of 1916 made no mention of the rights now subsumed under the catch-all term of "academic freedom." This is most especially true with respect to the institutional aspect of the term. It had to await the drafting of the Philippine Constitutions to be recognized as deserving of legal protection. The breakthrough for the concept itself was found in Section 5 of the 1935 Constitution which stated: "Universities established by the State shall enjoy academic freedom." The only State University at that time, being the University of the Philippines, the Charter was perceived by some as exhibiting rank favoritism for the said institution at the expense of the rest. In attempt to broaden the coverage of the provision, the 1973 Constitution provided in its Section 8(2): "All institutions of higher learning shall enjoy academic freedom." In his interpretation of the provision, former U.P. President Vicente G. Sinco, who was also a delegate to the 1971 Constitutional Convention, declared that it "definitely grants the right of academic freedom to the University as an institution as distinguished from the academic freedom of a university professor." 39 Has the right been carried over the to the present Constitution? In an attempt to give an explicit definition with an expanded coverage, the Commissioners of the Constitutional Commission of the 1986 came up with this formulation: "Academic freedom shall be enjoyed by students, by teachers, and by researchers." After protracted debate and ringing speeches, the final version which was none too different from the way it was couched in the previous two (2) Constitutions, as found in Article XIV, Section 5(2) states: "Academic freedom shall be enjoyed in all institutions of higher learning." In anticipation of the question as to whether and what aspects of academic freedom are included herein, ConCom Commissioner Adolfo S. Azcuna explained: "Since academic freedom is a dynamic concept, we want to expand the frontiers of freedom, especially in education, therefore, we shall leave it to the courts to develop further the parameters of academic freedom." 40 More to the point, Commissioner Jose Luis Martin C. Gascon asked: "When we speak of the sentence 'academic freedom shall be enjoyed in all institutions of higher learning,' do we mean that academic freedom shall be enjoyed by the institution itself?" Azcuna replied: "Not only that, it also includes . . . . " Gascon finished off the broken thought, "the faculty and the students." Azcuna replied: "Yes." Since Garcia v. Loyola School of Theology, 41 we have consistently upheld the salutary proposition that admission to an institution of higher learning is discretionary upon a school, the same being a privilege on the part of the student rather than a right. While under the education Act of 1982, students have a right "to freely choose their field of study, subject to existing curricula and to continue their course therein up to graduation," such right is subject, as all rights are, to the established academic and disciplinary standards laid down by the academic institution. 42 "For private schools have the right to establish reasonable rules and regulations for the admission, discipline and promotion of students. This . . . extends as well to parents . . . as parents are under a social and moral (if not legal) obligation, individually and collectively, to assist and cooperate with the schools." 43 Such rules are "incident to the very object of incorporation and indispensable to the successful management of the college. The rules may include those governing student discipline." 44 Going a step further, the establishment of rules governing university-student relations, particularly those pertaining to student discipline, may be regarded as vital, not merely to the smooth and efficient operation of the institution, but to its very survival.

Within memory of the current generation is the eruption of militancy in the academic groves as collectively, the students demanded and plucked for themselves from the ponoply of academic freedom their own rights encapsulized under the rubric of "right to education" forgetting that, in Holfeldian terms, they have a concomitant duty, and that is, their duty to learn under the rules laid down by the school. Considering that respondent students are proud to claim as their own a Christian school that includes Theology as part of its curriculum and assidously strives to turn out individuals of unimpeachable morals and integrity in the mold of the founder of the order of the Society of Jesus, St. Ignatius of Loyola, and their God-fearing forbears, their barbaric and ruthless acts are the more reprehensible. It must be borne in mind that universities are established, not merely to develop the intellect and skills of the studentry, but to inculcate lofty values, ideals and attitudes; nay, the development, or flowering if you will, of the total man. In essence, education must ultimately be religious not in the sense that the founders or charter members of the institution are sectarian or profess a religious ideology. Rather, a religious education, as the renowned philosopher Alfred North Whitehead said, is "an education which inculcates duty and reverence." 45 It appears that the particular brand of religious education offered by the Ateneo de Manila has been lost on the respondent students. Certainly, they do not deserve to claim such a venerable institution as the Ateneo de Manila University as their own a minute longer, for they may foreseeably cast a malevolent influence on the students currently enrolled, as well as those who come after them. Quite applicable to this case is our pronouncement in Yap Chin Fah v. Court of Appeals that: "The maintenance of a morally conducive and orderly educational environment will be seriously imperiled if, under the circumstances of this case, Grace Christian is forced to admit petitioner's children and to reintegrate them to the student body." 46 Thus, the decision of petitioner university to expel them is but congruent with the gravity of their misdeeds. That there must be such a congruence between the offense committed and the sanction imposed was stressed in Malabanan v. Ramento. 47 Having carefully reviewed the records and the procedure followed by petitioner university, we see no reason to reverse its decision founded on the following undisputed facts: that on February 8, 9 and 10, 1991, the Aquila Legis Fraternity conducted hazing activities; that respondent students were present at the hazing as auxiliaries, and that as a result of the hazing, Leonardo Villa died from serious physical injuries, while Bienvenido Marquez was hospitalized. In light of the vicious acts of respondent students upon those whom ironically they would claim as "brothers" after the initiation rites, how can we countenance the imposition of such nominal penalties as reprimand or even suspension? We, therefore, affirm petitioners' imposition of the penalty of dismissal upon respondent students. This finds authority and justification in Section 146 of the Manual of Regulations for Private Schools. 48 WHEREFORE, the instant petition is GRANTED; the order of respondent Judge dated May 17, 1991 reinstating respondents students into petitioner university is hereby REVERSED. The resolution of petitioner Joaquin Bernas S. J., then President of Ateneo de Manila University dated March 1991, is REINSTATED and the decision of the Special Board DISMISSING respondent students ADEL ABAS and ZOSIMO MENDOZA dated May 20, 1991 is hereby AFFIRMED. Narvasa, C.J., Feliciano Padilla, Bidin, Regalado, Davide, Jr., Nocon, Bellosillo, Melo and Quiason, JJ., concur. Grio-Aquino, J., is on leave.